At the last meeting of 2023, the FCC enacted four new rulings around text messaging:

1. Require blocking of texts upon notification by the Commission 
2. Declare national DNC protections apply to text messages
3. Request comments around making email-to-text an opt-in service
4. Close the lead-generation loophole

1. Blocking texts upon notification

Blocking texts from a specific number upon notification by the commission will not be unduly burdensome. If a campaign’s texting reaches the threshold of the FCC Enforcement Bureau’s (EB’s) action, the chances are, at the very least, the campaign is poorly designed and needs to be shut down. However, as is typically the case, if a sender gets on the EB’s radar, they’re likely shady and can expect at least a perfunctory scrutiny by regulators.  

Secondly, the FCC listened to the commenters and abstained from requiring blocking traffic that is “substantially similar” to avoid overblocking and reducing the operational burden on service providers. 

2. National DNC requirements apply to text messages

Declaring national DNC requirements for text messages is making law what has been industry best practice for at least a decade. Every state-of-the-art CPaaS messaging platform I know has some sort of DNC functionality built in, especially if they did any kind of voice broadcasting. What may change is the optionality of the feature. While some may have made the use of the DNC for texting purposes voluntarily, now it is a requirement for everyone. 

3. Make email-to-text an opt-in feature

Every wireless phone number in North America has an email address that delivers email as text: email-to-text. The FCC wonders if this should be an opt-in feature. That is, the subscriber has to explicitly state their desire to be contacted via this email address.

Email-to-text is one of the original “API” gateways. In a past life, I’ve used it for system downtime notifications. Before that, at IBM, my pager had an email address that anyone could access. Some OTT providers used email-to-text as a way to bypass fees and backdoor carrier filters. Some still do.

These days, thankfully, systems needing attention don’t text me anymore, but I’m sure there are applications out there that are still using this feature either because of ease of access or because it’s just too much work to change them. This also means it is readily available to the unscrupulous sender. 

The simple approach would be to sunset it once and for all. The proliferation of APIs has made email-to-text superfluous for any new development. For legacy systems, it will finally trigger a software update, and for the network operator, one fewer backdoor to watch. 

Shutting down anything on the network is a technical, operational, and communications nightmare, requiring coordination among dozens of companies. Getting buy-in from the consumer, the app developer, the internal teams, the external partners, and the regulator would be a logistical nightmare. 

Would content filtering work? 

Think of how spammy email has become, and overlay on that how hard it is to control SMS spam, and you have an inkling of the content-filtering problem. You’ll never get spam rates low enough to be acceptable, and the risk of over blocking is high. Yet, Verizon reports that 80% of the traffic it sees on this feature is spam. Oof. 

So you either shut down the feature or manage content. Both are ideal solutions, but neither is optimal. Is there another way? 

Verizon, for example, has taken a subscriber-driven approach. It allows its subscribers to text “OFF”/“ON” to 4040 to subscribe/unsubscribe from any texts coming via email gateway. By doing this, Verizon is crowdsourcing the solution. This makes sense. When the problem is a small part of the overall issue, and yet an annoying hangnail, partner with the subscriber and let them help you help them. 

The FCC’s proposal is a logical extension of this approach. Instead of requiring the subscriber to turn it off, the subscriber has to request to turn it on. Keeping the feature off is a good default, and most, I bet, will not miss the feature. 

4. Close the lead-generation loophole

The final ruling was to close the lead-generation loophole. This was the most contested and controversial part of this decision and one that can have far-reaching implications. It merits a separate discussion we will reserve for next week. 

Finally

The pace of activism the FCC has shown in the messaging space in the last forty-eight months has surprised many in the industry. After the Title II issue was settled, the prevailing sentiment was that the commission was going to look elsewhere. But since summer 2022, the commission has been on a tear, chipping away at the spam problem while keeping the bigger Title II considerations at bay. How the Rosenworcel FCC, now fully staffed, navigates the regulatory landscape in a hotly contested election year will be an entertaining watch.