FCC’s Robotext Rule Could Result in Voter Suppression
By James Erwin
A little-noticed item from the FCC last month could have major implications for future elections. The Commission’s proposed rulemaking on unwanted robotexts, unless amended, could potentially suppress voter turnout.
The FCC issued a Notice of Proposed Rulemaking seeking comment on how to best protect consumers from unwanted AI-generated robocalls and robotexts on August 7. On the surface, there is nothing unusual about this proceeding. The FCC has done a commendable job enforcing existing laws to prevent scam calls from deceiving consumers, and should continue to enforce existing law as AI technologies make these calls more convincing. There may be some need to adopt new measures to respond to new technologies used to commit fraud, and the NPRM contains such proposals as increased fines and expanded call-blocking requirements for consumers on the Do Not Call list.
But there is a delicate balance between preventing scams and blocking legitimate uses of robocalls. While the FCC should certainly block illegal robocalls and texts, unwanted communications are sometimes necessary. When the FCC gets too trigger-happy about requiring carriers to block calls and texts, businesses can’t reach customers, schools can’t notify parents, and political campaigns can’t reach voters.
This NPRM is especially alarming on that last point. According to an FCC press release from September 4, the rulemaking would:
- Expand the requirement to block calls based on a reasonable do-not-originate list to include all U.S.-based providers in the call path.
- Bolster existing requirements for providers to block calls following Commission notification to ensure that bad actors cannot circumvent the requirement.
- Establish a Session Initiation Protocol (SIP) code 603+ as the exclusive code to notify callers when calls on IP networks are blocked based on reasonable analytics to better correct erroneous blocking.
- Establish a base forfeiture for providers that fail to take affirmative, effective measures to prevent customers from using their networks to originate illegal calls, and allow the Enforcement Bureau to increase this amount to the maximum allowed for non-carriers under the Commission’s rules.
- Require originating mobile wireless providers to block text messages following Commission notification of suspected illegal texts or ultimately have all of their text messages blocked by Commission direction.
- Require mobile wireless providers to offer email-to-text as an opt-in service to better protect consumers.
The penultimate point is concerning because it would require carriers to block robotexts after FCC employees contact them about suspected illegal texts. There is no due process requirement that wrongdoing be proved or that fines be levied; bureaucrats could shut down robotexting operations on mere suspicion, perhaps without even notifying the originator of the texts by working with the carriers directly.
The problem is that robotexts are an important tool for get-out-the-vote (or GOTV, as it is known in the trade) efforts. Research has shown that robotext campaigns are one of the most effective ways to get voters to the polls. A study of Danish elections found that robotexts are effective because they are more noticeable than legacy methods like posts or mailers, are more cost-effective than making calls, and are more time-efficient than door-to-door canvassing.
Similar studies by the NAACP in Mississippi and analysis by Tech for Campaigns of 27 states in the 2020 election showed similar increases in turnout to the Danish study.
Much like the FBI, CDC, and other federal agencies contacting social media companies about deleting user posts, this could easily be abused. The Biden Administration has made clear they do not value freedom of speech on the internet when their preferred narratives about COVID-19 are contested. What is to stop the FCC from ordering carriers to block texts from the administration’s opposition on the pretext that such texts are “unwanted”? Doing so in the run-up to (on even on) Election Day would not give the campaign time to react and contest the injunction before the polls close. This FCC rulemaking could amount to bureaucratic voter suppression.
While the rule is unlikely to take effect before this election, it is not difficult to imagine abuses by future administrations, protestations of the “independence” of the FCC notwithstanding.
Even more nefarious, the FCC could use the complaints of some voters who do not want to receive text blasts as a pretext to dub all such blasts from a given campaign “unwanted,” require the carrier to shut down the GOTV operation on the “suspicion” that the unwanted calls are illegal, and block texts to voters who are happy to receive a reminder to go to the polls.
Even if no voters want to be reminded by text to vote on Election Day, is not higher voter turnout a civic good in itself? The FCC should work to increase voter information and turnout, not potentially stand in the way.
The NPRM itself does not explicitly empower the FCC to take action on mere suspicion, but authorities derived from the Telephone Consumer Protection Act of 1991 are the basis for that bullet point in the press release. Either way, it gives a clear indication of how Chairwoman Rosenworcel and her staff would choose to interpret their authorities, unless explicitly prohibited by statute or regulation.
To ensure that Americans have access to timely information about Election Day and to give campaigns a fair shake at efficiently reaching voters, the FCC should clarify in any final rule that more proof of wrongdoing than mere “suspicion” is required to block robotexts and include an explicit exemption for GOTV efforts. Our nation’s civic health will be improved by it.