Wireless Industry Notches Apparent Wins in Robocall/Robotext FNPRM

The draft FNPRM proposed and sought comment on “clarifying” that the Telephone Consumer Protection Act applies to robocalls and robotexts from wireless providers to their own subscribers. The final version seeks comment only about whether the TCPA applies. CTIA was among those seeking changes (see 2402130047).

The draft proposed to reject the argument “that, pursuant to the 1992 TCPA Order or statutory language, wireless providers are wholly excluded from the application of the TCPA’s requirement to obtain consent before robocalling or robotexting their own subscribers because there is no charge imposed on the subscriber.” The final notice seeks only “further comment” on the issue. The draft also sought clarification that a right to revoke consent “extends to wireless subscribers when they receive unwanted robocalls and robotexts from their wireless provider, just as it does to any robocalls or texts sent pursuant to the TCPA.” Here too, the final version is more neutral and seeks comment.

Commissioners also added a paragraph to the FNPRM seeking comment on whether to require “an automated opt-out mechanism on every call that contains an artificial or prerecorded voice.” The National Consumer Law Center (NCLC) requested the change. “NCLC argues that consumers ‘complain about the seemingly unstoppable’ prerecorded non-marketing calls from entities such as medical professionals and, in NCLC’s view, that would harmonize the treatment of such calls with those to residential lines,” the notice says.

The FCC didn’t alter one of the draft's most contested parts, requiring companies to send a confirmation text within five minutes of receiving a revocation request. The agency directly addresses arguments that some messages should be exempt.

“We disagree with commenters that argue the Commission should carve out specific subcategories of informational messages such as fraud alerts, identity theft, and breach notifications and force consumers to revoke consent to these specific categories of informational messages even when the caller chooses not to comply with the conditions of an underlying exemption for such informational messages,” according to a paragraph added to the final item: “This would be burdensome to consumers and unnecessary given the ability of callers to comply with the conditions of an exemption to make such communications in the absence of having consent and the ability to send a confirmation text informing consumers of the scope of their revocation request affording them an opportunity to provide consent for any type of calls or messages that they wish to continue receiving from the caller.”

In a paragraph on what constitutes reasonable notice, the order's final version adds text, aligning its approach with a 2015 TCPA order. “When assessing whether any particular means of revocation used by a consumer is reasonable, the finder of fact will look to the totality of the facts and circumstances surrounding the specific situation, including, for example, whether the consumer had a reasonable expectation that they could effectively communicate their request for revocation to the caller in that circumstance, and whether the caller can implement the mechanisms to effectuate a requested revocation without incurring undue burdens,” the order says.

In another tweak, a requirement that callers honor do-not-call and consent revocation requests was changed from “as soon as practical and within 10 business days” to “within a reasonable time not to exceed 10 business days.” The FCC makes a similar tweak elsewhere in the item. In a section on a requirement for honoring revocation requests within 10 days, the order notes that new technology automating the process makes this more practical. “We will continue to monitor these advances to ensure that consumers receive the full benefits of these technologies,” says a line added to the final item.

Only Chairwoman Jessica Rosenworcel and Commissioner Anna Gomez offered written statements. Gomez’s was in English and Spanish.

WMAS Changes

The final WMAS order argues that the advantages of new technology are enough to counter interference concerns. As indicated at Thursday’s open meeting, the item was changed to address broadcaster complaints that the proposed power level for unlicensed systems presents “a high risk of interference to broadcasters’ existing licensed wireless microphones.” The FCC didn’t change the proposed rules but instead refuted those concerns in a new paragraph.

“NAB/Fox/Paramount express concern that this 100 milliwatt power level for unlicensed WMAS operating in the TV bands with a bandwidth greater than 2 megahertz and up to 6 megahertz could pose a risk of harmful interference to broadcasters’ existing wireless microphones,” the WMAS order states: “We do not believe this would be the case.”

Operation at the higher power level will be limited to WMAS, “which has significantly greater spectral efficiency than narrowband wireless microphones,” the order says. “Because WMAS systems are more complex and provide support for more microphones per megahertz than traditional narrowband microphones, we expect that they will be operated at fewer locations than narrowband” mics. “Because WMAS can support many more wireless microphones in a 6-megahertz channel as compared to the number of narrowband wireless microphones that can operate at a location in the same bandwidth, WMAS implementations will encumber fewer TV channels as compared to those narrowband wireless microphone systems,” it says. In areas where unlicensed WMAS may operate, “we expect more channels to be available for licensed wireless microphones than may be available today,” the order argues.

In a discussion of why the FCC adopts power levels for unlicensed WMAS to permit mics to operate using different technologies developed by different manufacturers, the final version includes new clarifying language. “In addition to providing flexibility for multiple technologies, these rules address interference concerns described in the record by minimizing the potential for harmful interference to incumbent licensed wireless microphone operators,” the order argues.

The FCC added a clarifying statement to a paragraph on Part 74 rules: “The existing licensing mechanisms and eligibility requirements under part 74 subpart H of our rules remain unchanged.” Only Rosenworcel offered a written statement on WMAS.