Today, more than ever, robotexts—spam texts sent automatically in an attempt to gain information—have plagued cellphones. It seems like I can’t go a day without receiving a text about my “vehicle’s extended warranty” 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 (“FCC”) has seen a 146% increase 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.
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.
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, 2021. Chairwoman Rosenworcel’s proposed rulemaking is related to Congress’s Telephone Consumer Protection Act (“TCPA”)—which effectively criminalizes unsolicited robocalls.
Here, the proposed rulemaking by the Commission, calls for the investigation of methods protecting consumers from robotexts, essentially expanding the TCPA’s 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, “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.”
Broadly, both positive law and normative law support delegating Congress’s 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 or “otherwise not in accordance with law.” 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.
Beyond administrative interpretation limits, the Commission will also be restricted by the First Amendment of the U.S. Constitution. “Congress shall make no law . . . abridging the freedom of speech.” 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.
This issue is closely related to that of Barr v. American Ass’n of Pol. Consultants, Inc. In Barr, the Supreme Court held a debt-collection exception in the TCPA’s robocall ban violated the First Amendment, however the TCPA’s 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—a law which “singles out subject matter for differential treatment”—because it singled out a specific subject of speech—debt-collection focused robocalls. When a law/restriction is content-based, the government must pass strict scrutiny—or have a compelling governmental interest and the law must be narrowly tailored to achieve that interest. In Barr, the government’s interest was not compelling enough. Although the debt-collection exception to the TCPA’s 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.
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. 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 past strict scrutiny with a compelling government interest and narrowly tailored law.
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.
Jared A. Mark
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 Program, Moot Court, the Conservation and Agricultural Law Federation, and his internship with the U.S. Coast Guard JAG.