FCC public notice attempts to squelch Internet rumor, but recent request for declaratory order sends a different message

Responding to a rumor that has already been circulating on the Internet for five years or more, the Commission has issued a public notice which – you should probably be sitting down for this one – denies the accuracy of the rumor! It’s charming, in a kind of down-home-folksy way, that the FCC thinks that, with the issuance of a one-page notice, it may be able to Set the Record Straight, freeing countless naifs from misinformation which the Internet-fanned rumor has forced them to embrace.

According to the notice, the “rumor”, circulated “mostly by e-mail”, warns that “a nationwide directory of cell phone numbers will be made available to telemarketers, and that consumers will start receiving telemarketing calls on their cell phones.” The Commission assures us that “[t]here is no truth to this rumor”.

But as it turns out, the “rumor” may not be too far from the truth.

While the notice provides no specific sourcing for the “rumor”, it appears to be referring to e-mail messages which have been making the rounds since at least 2004, and which have already been de-bunked by www.snopes.com (check out their discussion of the issue here). According to the Snopes.com folks, the rumor may have arisen from reports that several national wireless carriers had taken steps to compile a nation-wide directory of mobile phone numbers. This in turn led to the not-unrealistic fear that that compilation would be made available to telemarketers, resulting in unwanted sales pitches on your shoe-phone. In reaction, it appears, one or more Concerned Citizens (whose identities are now long lost at the far reaches of a gazillion different e-mail threads) took to the Internet to sound the alarm.

As the www.snopes.com post explains in some detail, those fears were unfounded and, as far as we can tell, remain so to this day. So the FCC’s public notice is reasonably accurate if it is directed to that particular rumor.

But what the FCC does not mention is that, in the eyes of some, “text broadcasting” – an alternate means of dumping advertising onto your mobile device, kind of like mobile spam – is the Next Big Thing for a variety of telemarketers, an advertising medium which will replace “fax broadcasting”.

If the term “fax broadcasting” doesn’t ring a bell, how about “junk faxing”? You know, the practice of sending ads to your fax machine, whether or not you asked for them. While there is a law (the Telephone Consumer Protection Act, or TCPA) which imposes very severe limitations on that practice – not to mention very VERY severe potential penalties for violations – the fact is that such junk faxing occurs regularly.

And now, at least according to one company, “text broadcasting” – described by that company as the “functional equivalen[t]” of fax broadcasting – “has emerged as the platform of choice for a variety of marketing and alerting activities”.   “Text broadcasting” involves the transmission of text messages (as opposed to voice messages, or robo-calls) to mobile phones on behalf of another person or entity for a fee. Arguably, messaging isn’t as intrusive as robo-calls, but we’re guessing that it won’t take long for mobile spam to get on the public’s collective nerves.

The claim that text broadcasting and fax broadcasting are functional equivalents was made in a Petition for Declaratory Ruling filed with the FCC on August 25, 2009 by Club Texting, Inc. Club Texting is asking the Commission to declare that “text broadcasters” will not be treated as “senders” of messages under the TCPA.

Club Texting’s premise is not completely unreasonable. As it describes its activities in its Petition, Club Texting merely provides a “software platform” that helps its clients build and maintain subscriber databases with which Club Texting’s clients can more easily communicate with their customers, etc. The gist is that Club Texting offers guidance and some tools for taking advantage of the medium of text messaging.  As Club Texting sees it, if Club Texting’s clients choose to use that medium for Evil rather than Good, well, that’s not Club Texting’s fault and Club Texting should not be held liable.

Fair enough. That’s akin to saying that phone companies cannot be held liable for providing the communications infrastructure by which criminal enterprises may be organized.

But Club Texting claims that the TCPA affords “fax broadcasters” the kind of general blanket immunity that Club Texting seeks for text broadcasters. That claim is only partially true. 

A number of fax broadcasters were held liable for TCPA violations – with forfeitures running as high as $5.3 million!   (Check it out here.)  You see, fax broadcasters’ exemption from liability under the TCPA ends if the broadcaster has a “high degree of involvement” in improper faxing activities. And “suppl[ying] the fax numbers used” in such activities is one example of the kind of “high degree of involvement” that got some fax broadcasters into hot water.

Since Club Texting seeks a blanket exemption – which suggests that it would not engage in any improperly “high degree of involvement” – we figured we’d traipse over to Club Texting’s website to see what, if anything, Club Texting offers in the way of access to text phone numbers. And sure enough, if you look long enough, you can find that Club Texting “offers businesses & organizations access to over 60 million opt-in cellular phone numbers”. (Club Texting’s Petition to the Commission does not seem to mention that particular service.) We looked around a little more elsewhere on the Internet and found at least one other site – EZ Texting.com – offering essentially the same opportunity (i.e., “access to over 62 million opt-in US cell phone numbers”).

Which gets us back to the FCC’s public notice we opened this post with. That notice is probably accurate to the extent that it alludes to some directory of cell numbers formally compiled at the behest of a group of major wireless carriers.

But the FCC seems oblivious to the likelihood – nay, certainty, if the Club Texting and EZ Texting websites are to be believed – that huge lists of cell phone numbers have been compiled (although perhaps not formally or by major carriers) and are currently available for marketing purposes. This should not come as much of a surprise. The goal of marketers is to reach potential customers. Probably the most direct way to reach potential customers is to access them by the cell phone (or other mobile device) they carry around with them all the time. The impetus to assemble, and sell, a list of cell phone numbers is both understandable and irresistible.

To be sure, the two websites that we found offering lists of numbers described those numbers as “opt-in”. This presumably is intended to mean that these “text broadcasters” can conclusively demonstrate that each of the cell phone users behind each of those 62,000,000 numbers has consented – either expressly or implicitly through some established business relationship – to receiving marketing pitches by text message, since such consent is required by the TCPA. Perhaps those sites are really able to so demonstrate. But we suspect that at least some of the 62,000,000 cell users would be surprised to hear that.

The bottom line here is that the TCPA theoretically protects us all from unsolicited telephone communications (which presumably include text messages sent to our mobile phones). But as we have seen (and continue to see) in the junk fax context, the TCPA’s theoretical protection is, in reality, far less than 100% effective. Whether that’s a result of the cleverness of the scalawags who generate the junk faxes, or the difficulty of tracking down those scalawags and bringing them to justice, or other combinations of factors, the fact is that unsolicited fax junk continues to pour through the system.

It seems that folks (like Club Texting and EZ Texting) are already gearing up to dump tons of new message material into the system through the exciting new advertising medium of text broadcasting. Perhaps sensitive to the potential penalties, Club Texting appears to be trying to get ahead of that problem by wangling itself a “Get Out Of FCC Jail Free” card, to be pulled out of its pocket if/when adverse public reaction triggers FCC inquiries. Before issuing any such anticipatory free pass, the Commission should be sure to examine the nuts and bolts of Club Texting’s operation carefully, since some of those nuts and bolts may turn out to resemble junk faxing more closely than Club Texting’s Petition lets on.

In any event, it is probably best to assume that, notwithstanding the TCPA, your mobile phone will be on the receiving end of marketing pitches sooner rather than later. But if you are so inclined, you should feel free to believe every word of the FCC’s public notice assuring us all that there is “no truth to the rumor” about the impending arrival of telemarketing to your cell phone. After all, that public notice was posted on the Internet, wasn’t it?