Once these rules take effect, the FCC closes a significant gap in its prior rules – calls which originate outside the United States – at the same time that it acts preemptively to prohibit deceptive spoofing in a growing area – text messaging. In the process, the FCC will enhance one of its most commonly used tools in its effort to combat unlawful robocalls – fines for unlawful spoofing. Generally, the FCC has attacked parties that originate unlawful robocalls by fining them for the subsidiary violation of spoofing the unlawful calls. In telecommunications enforcement, spoofing violations are the tax evasion charges to Al Capone’s criminal enterprise.

Expansion of the Spoofing Prohibition

The first change adopted in the August 1 Report and Order was to expand the rules to cover communications originating outside the United States directed at recipients within the United States. The existing rules only applied to persons and entities within the U.S. The new rule states:

“No person in the United States, nor any person outside the United States if the recipient is in the United States, shall, with the intent to defraud, cause harm, or wrongfully obtain anything of value, knowingly cause, directly, or indirectly, any caller identification service to transmit or display misleading or inaccurate caller identification information in connection with any voice service or text messaging service.”

The second change, also incorporated in the rule above, applies the rule’s prohibition beyond voice communications to include text messages. The definition of text messages includes text, images, sounds, or other information transmitted to or from a device, specifically covering short message service ("SMS") and multimedia message service ("MMS") messages. Also covered by the rules are messages sent to or from Common Short Codes (Short Codes), which are the 5- or 6-digit codes commonly used by enterprises to communicate with consumers at high volume.

Not included in the definition is real-time, two-way voice or video communications and messages over IP-enabled messaging services so long as the communication is to another user of the same messaging service. Thus, the rules do not reach messages sent via common OTT applications such as iMessage, Google Hangouts, Whatsapp, and direct message features in Snapchat and Twitter. Rich Communications Services ("RCS") messages, which allow advanced messaging features, are also excluded. The Commission determined that Congress intended for RCS messages to fit under the statutory exclusion for “IP-enabled communications.”

The Commission also clarified its definition of “voice service” to ensure the rules cover the broader “telecommunications service,” as well as interconnected VoIP.

Implementing the RAY BAUM’S Act

The rule changes were required by amendments to the Communications Act, made by the RAY BAUM’S Act of 2018, which strengthened the FCC’s authority over spoofed calls established in the Truth in Caller ID Act of 2009. The 2009 legislation prohibited the use of misleading and inaccurate caller ID information for harmful purposes, but in a 2011 report, the FCC recommended that Congress update the rules to give the Commission authority to prohibit calls outside of the U.S. and make explicit that the Act covers text messages. The order also cited a May 2019 filing by 42 state attorneys general urging the Commission to adopt the rules.

While all voting commissioners supported the order, Commissioner Mike O’Rielly expressed some reservations prior to the vote. In particular, he said he thought the extraterritorial jurisdiction would be difficult to execute and would have preferred narrower statutory language, but did not believe it was his role to “challenge the wisdom” of the legislature. He also said the definitions of text and voice services were broader than he wanted, which he thought might cause future unintended consequences.

The new rules will go into effect on February 6, 2020, or 30 days after Federal Register publication, whichever is later.

The Ruling serves to address two outstanding petitions for declaratory ruling on the matter of classification for messaging services that were filed with the FCC years ago. First, in 2008, Public Knowledge, along with other non-profit organizations, sought to classify text messaging as a common carrier service and seven years later in a related petition, Twilio asked the FCC to declare that text messaging services were telecommunications services subject to stricter regulatory requirements under Title II of the Communications Act. The Ruling denies both parties’ declaratory ruling petitions and instead, affirms that these wireless messaging services satisfy the definitional criteria for an information service.

The FCC employs its traditional analytical approach toward the definitions of “telecommunications services” and “information services” and concludes that SMS and MMS wireless messaging are information services because they are asynchronous communications tools with the capability for storage and retrieval of content at the user’s request. Additionally, the FCC’s discussion of its decision primarily relies on the “trusted medium” idea for text messaging. The Ruling emphasizes the fact that text messaging is currently a trusted communications medium with a high approval rate among consumers which the FCC attributes to low receipt of spam. The Ruling states that the volume of attempts to send spam and fraudulent messages has increased significantly but the actual transmission to consumers continues to be low because of the ability of carriers to block or deny messages. The FCC determined that without classification as an information service, providers would be hindered in their ability to continue to eliminate text-spam.

In the draft declaratory ruling, the Commission stated that there was not enough information in the record to address RCS at this time. However, Commissioner O’Rielly strongly expressed his view that SMS and succeeding messaging technologies are applications that should also be classified as information services. As a result, in the final item the FCC included language stating its expectation that RCS and successor technologies with characteristics similar to SMS and MMS would be considered information services.

Commissioner Rosenworcel, the sole oppositional vote to this item, highlighted concerns expressed by some public interest groups about the Ruling possibly giving wireless carriers and other messaging providers more authority to block or restrict unpopular or controversial speech.