FCC Stiffs Carrier on CAN-SPAM Rules for Messages to Subscribers

The FCC denied a Cingular petition for reconsideration seeking to let Cingular and other wireless carriers send mobile service commercial messages (MSCMs) to subscribers without “express prior authorization.” Among the premises of the 2004 petition was that such messages are permitted under the 2003 CAN-SPAM Act -- at FCC discretion. In implementing CAN-SPAM, the agency barred carriers from sending MSCMs. A wireless industry official said the rule hasn’t caused trouble for carriers and the Commission’s decision won’t hurt them.

“It’s not going to change a thing,” the industry official said: “Carriers have been complying with the FCC’s CAN-SPAM rules since the order became final.” CAN-SPAM lets carriers send “transactional” messages but not “commercial” messages. Carriers can send transactional messages about a new service or feature that applies to an existing account.

“A commercial message is something that is a message from your carrier outside of your account relationship -- maybe Cingular would send a message about a credit card,” the source said: “At the time [Cingular filed the petition] there was concern about the latitude of communications within the transactional definition, but I'm not aware that carriers have bumped into any problems.”

Cingular said in its 2004 petition that the ban bucks FCC precedent and Congressional intent. Making CMRS providers get express prior consent to send MSCMs to customers violates carriers’ First Amendment right to free commercial speech, it said. “Congress expressly authorized the Commission to exempt CMRS providers, and only CMRS providers, from the general prohibition on sending MSCMs to mobile devices without express prior authorization,” Cingular said: “On reconsideration, the Commission should do so.”

In its order rejecting the petition, the FCC reminded carriers that the CAN-SPAM Act gave it leeway on whether to exempt them from the MSCM ban. The FCC developed a full record in a rulemaking, it said.

“CMRS providers argued that they should be exempt from the ban, but failed to provide specific examples of messages not already covered by the Act’s exclusion of transactional or relationship messages,” the agency said: “In contrast, several consumer groups, the National Assn. of Attorneys General, and the non-profit Electronic Privacy Information Center all argued against a special exemption for CMRS providers. Consumer groups and individuals in particular emphasized that wireless subscribers deserved greater protection from unwanted commercial electronic mail undiluted by an exemption for their wireless service providers, and were concerned regarding the nuisance caused by receiving unwanted messages on their wireless devices.”

“We are committed to ensuring that our practices both please our customers and conform to all the relevant rules,” an AT&T spokesperson said Fri.: “This decision does not require any changes in how we do business.”