The FCC will consider whether
ringless voicemail messaging falls within a law that generally prohibits the transmission of unconsented voice
and text messages (other than those from charities and political parties) to
wired and wireless telephones. See https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-88A1.pdf. Until now, the FCC has sided with the court
of public opinion and interpreted the Telephone Consumer Protection Act, (codified
at 47 U.S.C. § 227; see Telephone Consumer Protection Act of 1991, CG Docket
No. 02-278, Report and Order, 27 F.C.C.R. 1830 (2012)) in ways that provide
support for curbing the cockroach-like infestation of spam calls, faxes and
text messages.
The FCC may
reverse course this time, largely because the two Republican Commissioners have
plenty of incentives to embrace something the Republican National Committee and
the U.S Chamber of Commerce supports.
See https://www.recode.net/2017/5/23/15681158/political-campaign-robocall-ringless-voicemail-without-ringing-cellphone-republican.
This issue
presents itself as something of a litmus test for an FCC, tightly managed by
Chairman Ajit Pai. Despite rhetoric
about making the Commission more disciplined by fact finding and sound
economics and law, Chairman Pai has evidenced a penchant for results-driven
decision making that supports his agenda.
In this matter, he has very little rhetoric, rationale, law and evidence
to support what his Party and the Chamber of Commerce endorse. Allowing spammers to overload mailboxes will
not create many jobs as the messages are software generated, often by foreign manufactured
devices. Framing spam as First Amendment
protected commercial speech defies common sense and disregards the congressionally
recognized rights of subscribers to be left alone. Ignoring the clear and unambiguous language
and mission of law would lend credence to the view that Chairman Pai is not the
transparent and honest broker he claims to be.
Defying and frustrating just about every cellphone user does not seem a
smart move. The assertion that ringless
voice mail does not trigger costs to carrier, or consumer simply does not pass
the smell test.
Despite plenty
of reasons to determine that ringless voice mail falls within the Telephone
Consumer Protection Act of 1991, it would not surprise me if the FCC finds a
clever, weaselly way to accommodate the spammers. I can envision a lofty invocation of
regulatory forbearance, claims of statutory ambiguity and trust in the wisdom of
the marketplace, despite a clear legislative mandate to regulate and unequivocal
evidence that telephone subscribers cannot participate in a spam marketplace.
On the
other hand, the FCC might restrict, or prohibit such calls largely because of
consumer pushback and evidence that ringless voicemail does trigger costs for
both subscribers and more importantly for carriers, despite not having to route
calls all the way to a subscriber handset. Subscribers incur costs in accessing their
mailboxes, and in scrolling through and erasing the messages, particularly when
something serious and personal follows a slew of spam. Similarly, subscribers experience frustration
when their mailboxes reach capacity and carrier surely incur some costs in
having to generate recorded announcements that another voicemail message cannot
be stored.
Few at the
FCC may recall another instance where carrier network resources were used
without compensation. When international
telephone toll rates often exceeded $1.00 a minute clever entrepreneurs created
a “call-back” device (later software) that converted an expensive inbound call
into a lower priced outbound call.
Someone seeking to establish a voice connection initiated a call to the
United States, but cut the call before completion and the start of metering. Because signaling preceded the meter, one
could provide the foreign telephone number that the device, or software would immediately
use to initiate a call.
International
telephone companies like AT&T opposed the use of their networks without
compensation. Remarkably, the FCC
rejected their complaints and sided with consumers who benefitted from lower international
toll charges through arbitraging the difference between inbound and outbound
rates.
For
ringless robocalling, both carrier and customer interests align, because both
stakeholder incur costs. Still it
remains to be seen whether the FCC will find a way to accommodate key
benefactors, e.g., the Republican Party and all types of spammers, to the
detriment of other benefactors it usually serves, e.g., Verizon and other
carriers.
