{"id":8505,"date":"2021-10-28T00:00:00","date_gmt":"2021-10-28T00:00:00","guid":{"rendered":"https:\/\/ncjolt.org\/?p=8505"},"modified":"2021-10-27T21:42:11","modified_gmt":"2021-10-27T21:42:11","slug":"the-fcc-aims-to-rid-cellphone-users-from-rampant-robotexts","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/the-fcc-aims-to-rid-cellphone-users-from-rampant-robotexts\/","title":{"rendered":"The FCC Aims to Rid Cellphone Users from Rampant Robotexts"},"content":{"rendered":"\n

Today, more than ever, robotexts\u2014spam texts sent automatically in an attempt to gain information\u2014have plagued cellphones. It seems like I can\u2019t go a day without receiving a text about my \u201cvehicle\u2019s extended warranty\u201d or paying a medical bill for a treatment I never received. I know I am not alone struggling with receiving unwanted an unsolicited spam texts. The Federal Communications Commission (\u201cFCC\u201d) has seen a 146% increase<\/a> in consumer complaints related to spam\/unwanted texts from 2019 to 2020. Many of these spam calls try to trick cellphone users to share sensitive data and can be very dangerous to consumers.<\/p>\n\n\n\n

In a world where so many of us rely heavily on texting to stay connected with our friends and family, ensuring the integrity of this communication is vitally important.<\/p><\/blockquote>\n\n\n\n

In response to 9,800 consumer complaints filed in 2021 alone, Acting FCC Chairwoman Jessica Rosenworcel proposed rules requiring mobile wireless providers to preemptively block illegal text messages on October 18th<\/sup>, 2021. Chairwoman Rosenworcel\u2019s proposed rulemaking is related to Congress\u2019s Telephone Consumer Protection Act<\/a> (\u201cTCPA\u201d)\u2014which effectively criminalizes unsolicited robocalls. <\/p>\n\n\n\n

Here, the proposed rulemaking<\/a> by the Commission, calls for the investigation of methods protecting consumers from robotexts, essentially expanding the TCPA\u2019s reach beyond phone calls, alone. Proposed policies could include network level blocking or even applying the same caller authentication standards (notice of potential spam) to texts. In the notice of a rule proposal, Chairwoman Rosenworcel remarked, \u201cIn a world where so many of us rely heavily on texting to stay connected with our friends and family, ensuring the integrity of this communication is vitally important.\u201d<\/p>\n\n\n\n

Broadly, both positive law and normative law<\/a> support delegating Congress\u2019s rulemaking authority to administrative agencies, including the FCC; however, the power to promulgate rules is not without limits. In the current case, regarding statutory interpretation and expansion, any rules the FCC proposes to combat robotexts must not be arbitrary or capricious<\/a> or \u201cotherwise not in accordance with law.\u201d  Each of these standards is fairly easy to satisfy (hard to fail) because much discretion and deference has been afforded to administrative agencies to execute their jobs given the Supreme Court precedent from Chevron<\/em><\/a>.<\/p>\n\n\n\n

Beyond administrative interpretation limits, the Commission will also be restricted by the First Amendment<\/a> of the U.S. Constitution. \u201cCongress shall make no law . . . abridging the freedom of speech.\u201d Here, the FCC is likely going to make a law which directly abridges the freedom to send spam robotexts. Texting an idea or message is an example of speech in one of its purest forms. It does not matter whether the texts were sent. Although the Commission may muster the might to make a law via its delegating rulemaking authority, it could face hardship gaining Constitutional muster under the First Amendment.<\/p>\n\n\n\n

\"\"<\/figure><\/div>\n\n\n\n

This issue is closely related to that of Barr v. American Ass\u2019n of Pol. Consultants, Inc<\/em><\/a>.<\/em> In Barr<\/em>, the Supreme Court held a debt-collection exception in the TCPA\u2019s robocall ban violated the First Amendment, however the TCPA\u2019s general prohibition of robocalls passed Constitutionality. Within the TCPA (as amended twenty-four years after its original passing), there was an exemption for debt-collection to the robocall restriction. This exception was determined to be an unconstitutional content-based restriction\u2014a law which \u201csingles out subject matter for differential treatment\u201d\u2014because it singled out a specific subject of speech\u2014debt-collection focused robocalls. When a law\/restriction is content-based, the government must pass strict scrutiny<\/a>\u2014or have a compelling governmental interest and the law must be narrowly tailored to achieve that interest. In Barr<\/em>, the government\u2019s interest was not compelling enough. Although the debt-collection exception to the TCPA\u2019s robocall ban was unconstitutional under the First Amendment, the Supreme Court upheld the remainder of the TCPA and severed the debt-collection amendment from the law.<\/p>\n\n\n\n

Here, the FCC rule may face similar hardships as the TCPA if the proposed rule is content-based. To avoid any issues, the FCC rule should aim to be content-neutral and ban broad unsolicited robotexts, unlike the debt-collection exception from Barr<\/em>. However, if the FCC decides to propose rules that are content-based such as a robotext exception revolving around a specific subject (i.e. medical treatment, education, or debt-collection), the Commission must<\/em> past strict scrutiny with a compelling government interest and narrowly tailored law.<\/p>\n\n\n\n

To satisfy its goal of combating the rise of robotexts, the FCC should work with network providers to block unsolicited, automated text messages. I recommend the FCC utilize its delegated authority to promulgate a rule banning all robotexts equally. This will ensure the rule is done so in accordance with the First Amendment and its content-neutral requirements.<\/p>\n\n\n\n

Jared A. Mark<\/strong><\/p>\n\n\n\n

Jared is a second-year law student from Raleigh, NC. He graduated from Appalachian State University with a B.S. in Political Science in 2020. While in law school, Jared has developed his interests in administrative law, cybersecurity and data privacy, environmental\/agricultural law and military justice. Besides writing for the North Carolina Journal of Law and Technology, Jared is involved with the CE3 <\/sup>Program, Moot Court, the Conservation and Agricultural Law Federation, and his internship with the U.S. Coast Guard JAG.<\/p>\n","protected":false},"excerpt":{"rendered":"

Today, more than ever, robotexts\u2014spam texts sent automatically in an attempt to gain information\u2014have plagued cellphones. It seems like I can\u2019t go a day without receiving a text about my \u201cvehicle\u2019s extended warranty\u201d or paying a medical bill for a treatment I never received. I know I am not alone struggling with receiving unwanted an …<\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[228,230,226,189,163,229,227],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8505"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=8505"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8505\/revisions"}],"predecessor-version":[{"id":8507,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8505\/revisions\/8507"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=8505"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=8505"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=8505"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}