So big webinar in about 2 hours. As I was preparing for it I figured I would pen a quick retrospective on U.S. telecom law.
I feel bad for telecommunications carriers in this country.
Just eight (8) years ago the carriers were common carriers–meaning that they had absolutely no responsibility to monitor their network traffic or block calls. In fact, they were seemingly categorically banned from doing so.
The legal backbone of our nation’s once tremendous telecom infrastructure is found in Section 201 of the Communications Act. It reads simply:
Nice. Simple. Elegant.
If Communications Act Section 230 is the law that “built the internet” Section 201 is the law that built the cell phone. It was the simple promise to all Americans than when they picked up the phone to make a call it would connect.
Well… not anymore. Not even close.
And the history here is fascinating.
Back in 2015 as part of the FCC’s (disastrous) TCPA Omnibus ruling the FCC determined–for the first time–that cellular network providers could offer consumers call blocking services on an opt in basis. That is, consumers could choose whether or not they wanted to receive certain calls.
The carriers were very uncomfortable with this. It suggested that the carriers could pick and choose whose calls to connect–seemingly a direct violation of Communications Act Section 201. But the FCC stood its ground and confirmed the same in a ruling a year later.
But by 2018 the idea of opt in call blocking just wasn’t enough. Despite the availability–and general effectiveness–of opt in call blocking offered by the carriers consumers were still complaining to the Commission about all the robocalls they were receiving. The problem–it seemed– was that consumers were too lazy (or ill-informed) to sign up for the call blocking services being offered by the carriers.
So the FCC took the most remarkable leap in American telecom law since the 1930s– it decided carriers could offer default call blocking services–i.e. that carriers now had the ability to use “reasonable analytics” to determine whether or not to block calls that their network users might deem to be “unwanted.”
Notice that this ruling flies directly in the face of Communications Act Section 201’s mandate of “calls for all.” It also does not track with any legal principles since carriers are permitted to decide for themselves what calls might be “unwanted” and not just “illegal.” Without question this massive delegation of power to the carriers to pick and choose whose speech to permit and whose to deny is an unconstitutional licensing scheme violating the First Amendment–a reality underscored by the use of Orewllian “trust score” designations that would follow the TCR roll out.
But by 2020 permitting carriers to use reasonable analytics to block potentially unwanted calls was not enough. Now the FCC was mandating that the carriers MUST block such calls. And it offered the Carriers a beefy safeharbour–itself unconstitutional and plainly violative of Section 201–to seemingly protect the carriers as they went about censoring (and increasingly, labeling) speech.
Overlaid on these call blocking efforts was a new requirement that carriers begin pointing the finger at one another pursuant to Traceback rules–which was formerly a voluntary effort by members of U.S. Telecom. Now the carriers were forced to report the source of downstream traffic within 24 hours of a request for the ITG, regardless of whether or nor the traffic was legal or not.
By early 2022 the Commission had granted wholesale permission–and then seemingly required–intermediary and terminating carriers to block huge segments of traffic from originating carriers. Meaning that carriers could pick and choose between themselves which other carriers traffic they wanted to connect–again, a MASSIVE departure from the “connect with everyone or else” days that most telecom lawyers had grown up in.
And by late 2022, the FCC had begun issuing pointed shutdown orders–absolutely wild directives from an agency of the federal government to carriers to silence speech wholesale, and without any required legal findings or apparent accountability. Indeed, one such order issued this year nearly destroyed a popular phone platform despite the fact that they seemingly didn’t do anything knowingly wrong.
But that all deals with voice channel. The saga of text communication regulation is even weirder.
Back in 2018 the FCC confirmed that–despite the fact text messages are plainly telecommunications–they were not actually telecommunications but were just information services. The FCC performed legal backflips to arrive at this conclusion SPECIFICALLY because carriers have (or had) more flexibility to limit access to information services than telecommunications–again Section 201 requires access to telecommunications, but no such rule requires access to information services.
Indeed, it was believed that industry had done a great job monitoring and preventing spam robotexts. Remember this line from the 2018 order? I do:
As a result of these efforts, wireless messaging remains a relatively spam-free service.
-FCC in 2018
Turns out keeping text messages classified as Title I information services didn’t do much. Indeed, as the FCC’s permission slip to carriers to throttle, block and label Title II telecommunications–again in complete violation of federal law (IMO)–some commenters began suggesting text messages be redesignated as a Title II services because of the GREATER blocking abilities carriers could use in that instance.
The truth is that spam text was pretty limited back in 2018 because access to shortcodes was carefully monitored and policed by an active CTIA. But spammers stated figuring out the ability to use longcodes and 800 numbers and that —along with the Supreme Court’s Facebook ruling–lead to a large proliferation of spam texts following 2018.
In response, the Commission first figured it would try to extend the STIR/SHAKEN protocol from voice channel to text messages to help block spoofed texts except, as many commenters noted, that’s just flat impossible currently.
So, instead, the Commission has arrived at a plan where carriers must block texts from numbers on a “reasonable” Do-Not-Originate (DNO) list, which include numbers that purport to be from invalid, unallocated, or unused North American Numbering Plan numbers, and numbers for which the subscriber to the number has requested
that texts purporting to originate from that number be blocked. In short hand, the rule requires carriers to block texts that are “highly likely” to be illegal.
Now it seems to me a DNO list is RIPE for abuse. We already have black-box algorithms blocking calls and now we have black box DNOs that further threaten speech. Nonetheless, David Frankel has personally assuaged me that the DNOs will not be abused which, for some reason, actually makes me feel more comfortable here.
But per the FCC’s new NPRM the carriers will have another heaping load of text blocking requirements to contend with. First, the FCC plans to make carriers subject to “block text” rulings from the FCC, just as they are subject to “block calls” rulings. Carriers must also now be prepared to contend with a new sms authentication protocol–which is yet to be developed.
At bottom telecom law in this nation spent 80 years as one of the most boring and dusty places in the legal world. All anyone knew–and had to know–was that the carriers had to connect calls faithfully. But in the last 8 years it has become an extremely fast-paced and difficult-to-predict world as the FCC attempts to battle the robocall epidemic by whipsawing the carriers into counter-intuitive action.
Its been fascinating to watch all of this, even if making sense of everything is difficult at times. Very little of it has any sound legal backing in my view–Congress has never modified the directives of Communications Act 201–and all of the call blocking delegation is unconstitutional (IMO). Still, I can never fault the Commission for trying to protect consumers by leveraging the few tools it has at its disposal. And it really is getting closer to having a comprehensive framework at the ready to control speech to our phones–assuming that’s a good thing.
See you all on the webinar in a bit.