My prior
blog entry noted that an unexpected consequence of classifying texting as an information
service lies in having to treat texting labels and other enhancements as
information services as well. See https://telefrieden.blogspot.com/2019/01/omg-fcc-just-legalized-spoofing.html.
In a nutshell, I reasoned that if texting constitutes an information service,
then spoofing must as well, thereby disqualifying it from being regulatable as
a special type of information service directly integrated with a
telecommunications service, such as Caller ID.
Spoofing of
information service classified texting cannot qualify as an information service
designed to "manage, control, or execute operation of a telecommunications
system or the management of a telecommunications service.” If spoofing constitutes an information
service by itself, then it remains an information service when integrated with
another information service, such as the newly clarified FCC determination that
texting fits solely within the information service classification.
Given the
FCC’s dichotomous thinking, a service must fit entirely in the telecommunications
service classification, or the information service category, with a hybrid combination
occurring only when an information service supports—and is subordinate to—a clearly
telecommunications service offering. The
FCC can regulate spoofing of telephone
caller IDs, because the data processing, which manipulates and misrepresents
the source of a call, clears acts on a telephone call that remains classified
as a telecommunications service.
Soon after
releasing its “clarification” of the regulatory status of texting as an information
service, the FCC has turned its attention to spoofing as mandated by a recent
and rare amendment to the Communications Act of 1934. See Implementing the Anti-Spoofing Provisions
of the RAY BAUM’S Act, Notice of Proposed Rulemaking, WC Docket Nos. 18-335,
11-39, FCC-CIRC1901-05 (draft publicly
released Jan. 3, 2019); https://www.fcc.gov/document/implementing-anti-spoofing-provisions-ray-baums-act.
The FCC
really, really has to care about spoofing, because the general public has
become so ticked off by the proliferation of robocalls and Caller-ID trickery. But
how can the FCC satisfy its new congressional mandate while at the same time expanding
its information service, deregulatory campaign?
Answer: Ignore what it just did and regulate spoofing regardless of what
kind of service it misrepresents.
The FCC has
received a clear congressional mandate to expand globally its jurisdictional
reach over faked Caller-ID letters and numbers, questionable in terms of
geographical reach and effective implementation. The Commission also assumes it has a
legislative mandate to ignore its preexisting telecommunications
service/information service regulatory dichotomy and bolster its enforcement of
Truth in Caller ID rules for both telecommunications service telephone calls
and now clearly classified information service texting.
How clever,
particularly coming from a regime hellbent to reduce the reach of so-called
Title I “ancillary jurisdiction” and the overall regulatory wingspan of the
FCC.
To pull
this dereg/re-reg gambit, the FCC has to pursue self-induced amnesia. First the Commission has to ignore what it
just did by way of reclassifying the overall regulatory treatment of
texting. Only under self-induced amnesia
can interpret applicable legislation as re-establishing jurisdiction and
enforcement authority over texting regardless of what the Commission did less
than a month ago by way of insulating the service from government oversight.
At best the
FCC can pursue this, rather disingenuous spin:
The
Commission can state that it has received a clear and unambiguous statutory
mandate to regulate texting as least insofar as spoofed numbers and letters are
concerned. With a specific congressional
mandate, the FCC presumably can opt to ignore its grand deregulatory pronouncement
for texting, by claiming that a specific provision in the Communications Act
nullifies its otherwise applicable interpretation of other Communications Act
provisions that would have led to a different, more deregulatory posture, i.e.,
the information service classification of texting.
I am confused
just what the FCC sought to accomplish in “clarifying” the regulatory status of
texting, particularly when days after declaring text largely unregulatable, the
FCC has to backtrack big time.
Conclusion: we have a doctrine, result-driven, deregulation obsessed FCC,
trigger happy to brand anything wire- or radio-based an information service, no
matter how unsustainable based on real world considerations such as the big
money in criminally duping consumers to rely on falsified identification of call
and text originators.
