Most people loathe
robocalls and spam: unsolicited commercial, extortionate and sometime criminal pitches
by telephone, text and email. This kind
of traffic has become the leading consumer complaint at the FCC. [1]
Consumers especially revile a new sneaky software hack spammers use to insert
fake names and numbers on the screens of handsets. It’s called spoofing and
unbelievably the Federal Communications Commission just made this nasty,
fraudulent intrusion much more likely, especially for text messages.
In a recent
Declaratory Ruling the FCC ostensibly eliminated “regulatory uncertainty” to
specify that the information services classification applies to text messages
and accompanying content, such as video and photos. With sadly characteristic sanctimony, snark
and self-congratulations, the FCC states unconditionally that this new
deregulatory declaration will safeguard consumers.
The Commission’s
brilliant strategy: abandon regulatory oversight and the ability to impose
sanctions on bad actors and rely solely on the carriers transporting text to
use whatever safeguards they deem necessary.
This tactic comports with the FCC’s elimination of any network
neutrality oversight based on the view that self-regulation will suffice,
possibly augmented by ex post, complaint review by the Federal Trade Commission
on matters involving privacy and unfair trade practices.
I want to believe that
well intentioned Internet Service Providers always will do the right thing by
acting as fair minded and consumer-oriented carriers, even without the prospect
of sanctions by a cop on the beat. But
time after time, empirical evidence shows the foolishness in such trust. Just now, AT&T and other wireless
carriers have had to acknowledge that they monetize the location information
subscribers must allow the carriers to acquire for call processing. AT&T apparently forgot the public
commitment it made not to exploit this data as a new revenue source. See AT&T to end all location-data sales to
data brokers; https://www.washingtonpost.com/business/technology/atandt-to-end-all-location-data-sales-to-data-brokers/2019/01/10/fb00a364-1547-11e9-ab79-30cd4f7926f2_story.html?utm_term=.ec82608aadd8
Another Day, Another Massive Cellular Location Data Privacy Scandal
We'll Probably Do Nothing About; https://www.techdirt.com/articles/20190108/11090741358/another-day-another-massive-cellular-location-data-privacy-scandal-well-probably-do-nothing-about.shtml
Simply put, carriers
have ample self-interest in applying filtering and other anti-spam techniques
in ways that generate more revenues, or tilt the competitive playing field in
favor of a corporate affiliates and third parties willing to pay. Nothing prevents carriers from offering spam
filtering as an “optional” service for an additional fee.
Let us put aside the
matters of carriers serving as foxes guarding the chicken coop. The FCC explicitly recognizes that the status
quo of uncertain regulatory status has not prevented carriers from filtering
and safeguarding text messaging from spam contamination:
In the [current] absence of a Commission
assertion of Title II regulation, wireless providers have employed effective
methods to protect consumers from unwanted messages and thereby make wireless
messaging a trusted and reliable form of communications for millions of
Americans. [2]
The
biggest mistake of the Declaratory Ruling lies in a variety of unanticipated negative
consequences that collectively add, rather than reduce regulatory uncertainty
and increase consumer harms.
Consider
spoofing. When the FCC allowed the
question of regulatory classification to remain uncertain—like Voice over the
Internet Protocol—spoofing could be recognized as something the Commission
could deem harmful and subject to regulatory sanction. Even though spoofing uses software to act on
content and replace it with fraudulent data, e.g., Internal Revenue Service
(202) 622-5000, the FCC could safeguard consumers based on the statutory definition
of unregulated information service that carves out an exception retaining
jurisdiction:
(20) INFORMATION
SERVICE.--The term “'information service” means the offering of a capability
for generating, acquiring, storing, transforming, processing, retrieving,
utilizing, or making available information via telecommunications, and includes
electronic publishing, but does not
include any use of any such capability for the management, control, or operation
of a telecommunications system or the management of a telecommunications
service. [3]
If the FCC had left well enough
alone, the highlighted language would have conferred jurisdiction for the FCC
to regulate information service (spoofing) that, using the Commission’s
language in the Declaratory Ruling, is part of an “integrated finished product”
and “inextricably intertwined with information processing capabilities.” [4]
Throughout its Declaratory Ruling,
the FCC explains how texting of any sort constitutes an information
service. It follows that spoofing, occurring
as part of the delivered text traffic, similarly constitutes an information
service. How could it be anything
else?
With both texting and the ancillary
spoofing of text messages both constituting information services, the carve out
for management, control, or operation of a telecommunications system or the
management of a telecommunications service cannot apply to the spoofing
process.
By insisting on an absolute
dichotomy between information services and telecommunications ervices [5]
each and every element in a composite of texting service has to fit within the
newly announced information service classification. If the FCC has decided that it lacks statutory
oversight to regulate texting, then it follows that the Commission similarly
has no jurisdiction over the software enabled reformulation of characters and
numbers contained in the text message. Consumers may have redress at the FTC,
but bear in mind that this agency reacts to complaints, lacks any telecommunications-specific
expertise and relies heavily on consent decree promises that we see carriers conveniently
forgetting.
At best, the FCC’s Declaratory
Ruling shows how good intentions can result in unanticipated harms. However, under current circumstances I cannot
give Chairman Pai and his staff the benefit of the doubt. This document follows a now well-worn path of
deregulation for the sake of deregulation without full consideration of the
consequences to consumers and competition.
Other matters, worthy of subsequent blogs, include:
1) whether and how the FCC can enforce the
safeguards contained in the Telephone Consumer
Protection Act;
2) how carriers providing common carrier Commercial
Mobile Radio Service can enter
the mutually exclusive realm of information service processing while delivering of traffic that originates on
handsets, traverses the Public Switched Telephone
Network and appears on handset screens;
3) whether texting, no longer classifiable
as a telecommunications service, qualifies for
an exemption from fitting within the interstate and international services subject to universal service funding payments
by consumers; and
4) what degree of storing and forwarding
of traffic converts it to an information service
from a package of telecommunications services (voice, text, caller ID) customarily offered by carriers.
[1] “Last
year, Americans received approximately 30 billion robocalls, and for the first
five months of 2018,147 more than 16 billion robocalls have already been
placed.148
And the Commission receives over
200,000 complaints about unwanted calls each year—around 60% of all of the complaints
that the Commission receives from consumers.”
Petitions for Declaratory Ruling on Regulatory Status of Wireless
Messaging Service, Declaratory Ruling, FCC 18-178, ¶45, p. 23 (rel. Dec. 13, 2018); available at: https://docs.fcc.gov/public/attachments/FCC-18-178A1.pdf
[hereinafter cited as Texting Information Service Declaratory
Ruling].
[2] Texting
Information Service Declaratory Ruling at ¶43, p. 21. “[W]ireless providers [currently] prevent
large volumes of unwanted or malicious text traffic from reaching consumers’
phones. They do this by applying
filters, blocking robotexts, and using anti-spoofing measures, among other
things.” Id. Statement of Chairman
Ajit Pai, p.30.
[3] Communications
Act of 1934, as amended, codified at 47
U.S.C. §153 (20)(2018)(emphasis added).
[4] Texting
Information Service Declaratory Ruling at ¶24, p. 11.
[5] “The
Communications Act, as amended, divides communications
services into two mutually
exclusive types: highly regulated ‘telecommunications services’ and lightly regulated
‘information services.’ A ‘telecommunications service’ is a common carrier
service that requires ‘the offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available to the
public, regardless of the facilities used.’” Texting Information Service
Declaratory Ruling at ¶3, p. 2.
