How the FCC Can Protect Consumers From Unwanted Political Text Message Spam

Have you been getting bombarded with unwanted political text messages on your personal cell phone? Have you noticed that opting out of these annoying messages leads to an endless game of whack-a-mole, such that replying "STOP" or "UNSUBSCRIBE" only causes you to receive similar messages from different phone numbers? It's frustrating and unnerving and these messages are clogging a once spam-free gateway. It's time for the Federal Communications Commission's (FCC) new leadership to step in and put an end to the billions of unwanted political text message spam.

I hope for the sake of all our civic lives and basic mental health that the FCC reviews and tightens its policies to finally put an end to unwanted political text spam.

Advances in technology, data mining, and list vending have made unwanted political text messaging inexpensive to deploy, virtually impossible to opt-out of and easy to abuse. Once an exclusive opt-in-only service that provided voters with the information they desired has become a ubiquitous form of spam marketing at all levels of political engagement.

It does not need to be that way. In 2008, I sent the first political text messages for Barack Obama's presidential campaign. It was an honor and a privilege--one that imbues me with the responsibility to make sure that this technology improves our political discourse, rather than degrades it.

Consequently, I have spent years updating the FCC about advances in spam technology and urging action against new and nefarious mobile political tactics.

Ten years ago, almost to the day, I wrote Obama's FCC Chair, Julius Genachowski, with a similar request to have the FCC put an end to email and text-message political spam and close any loopholes that were allowing a new type of dirty-tricks campaigning to thrive--spreading fake news and nasty rumors through mobile messages.

Using text messages for election-related outreach (e.g. getting out the vote, providing early vote reminders and supporting fundraising and crowd-building efforts) has been a huge benefit to political campaigns. Voters can subscribe to these messages by opting in to a registered five or six-digit shortcode (Barack Obama's number was 6-2-2-6-2, which spells O-B-A-M-A on a telephone keypad). These "phone numbers" can easily be blocked by the end-user, the cellphone carrier or the self-governing industry association (CTIA). While the shortcode system experienced growing pains during its infancy, it was governed by strict opt-in guidelines and published a playbook of consistently applied rules that assured that no marketer was allowed to spam consumers.

America was one of the only countries in the world that did not suffer from massive text-message spam. Strict consumer laws such as the CAN-SPAM Act and the Telephone Consumer Protection Act (TCPA), among others, limited such electronic intrusions into our personal lives. In 2015, FCC chair Tom Wheeler tried to strengthen these protections by finally ruling on the petition that my firm had filed with Genachowski's FCC back in 2012. The committee ruled that "consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers."

So, what happened?

As cell phone usage skyrocketed, text messaging proliferated, and voters cut the cord to their landlines; political marketers became more willing to risk targeting cell phone numbers with unwanted text messages.

During these same years, older marketing tactics like door-knocking and direct mail were becoming harder to deploy and less effective in reaching many nontraditional voters. Transient voters aren't easily found on traditional voter files and don't easily match with internet cookie files. So, data firms started selling these targeted voters' cell phone numbers, which they acquired through credit card companies, banks and other sources.

By 2016, a half dozen tech firms (both Democratic and Republican) were selling peer-to-peer (P2P) text message services. Sen. Bernie Sanders's (I-Vt.) and former Sec. of State Hillary Clinton's presidential campaigns were using Hustle. MoveOn had partnered with Spoke and Republican tech firms like RumbleUp were offering the same technology. Millions of dollars in investment moved into spam-tech efforts -- all to skirt the FCC and TCPA opt-in rules and spam voters.

Tactics evolved from email to text-message spam to 10-digit long-codes (10DLC) that look like normal phone numbers. These codes, unlike shortcodes, cost hundreds of dollars less per code, have a simple registration process and can be set up in a few days instead of six to eight weeks.

Unfortunately, in June of 2020 the peer-to-peer texting firms gained traction with a new FCC. And by October of 2020 (buried in the FCC's election season warnings ironically about spam) the FCC, chaired by Ajit Pai, gave permission to the P2P text messaging industry to send unrequested messages for political purposes as long as the messages are delivered without using an "auto-dialer."

In other words, the FCC actually made it easier for political spammers who lobbied them to practice business as usual and undermined years of efforts to close these loopholes. Suddenly, groups could load a bunch of targeted cell phone numbers onto their organizers' phones through a mobile app to text spam voters so that it would be considered peer-to-peer messages and not auto-dialing spam.

To protect American voters, the FCC must review its policies and close the loopholes that are causing rampant and impossible-to-stop political text spam from occurring. The FCC needs to acknowledge:

1. Texting an entire voter file of unsuspecting voters is not peer-to-peer communication. These spam messages are not intended to be two-way conversations among peers to help increase political discourse. They are not originated from humans texting their "friends." Instead, they are simply uploaded lists, crowd-sourced through a mobile app.
2. It is impossible to opt out of these messages. Political campaigns are not required to keep a permanent do-not-text list and can upload these numbers into a new 10DLC in a matter of seconds. Without strict regulation, campaigns will generate new numbers from which to send text spam quicker than a hydra sprouts new heads.
3. Nefarious spammers can send messages through unregistered 10DLC that contain false and misleading information by simply paying a slightly higher fee for using an unregistered code. Instead of hitting a roadblock, they are being given an EZ-Pass.
4. There is no punishment that prevents voter-file managers, data providers, and other campaign aides from selling cell phone numbers that have opted out of political communications. These brokers are not required to create a permanent do-not-text list. (The FCC could require this at the broker level or even a carrier-based blacklist)
5. Today's massive volume of unregulated political mobile spam is turning into a tactic of voter suppression. These unlimited messages are now being used as persuasion messaging, often sending out misleading information and thwarting civic turnout efforts by adding chaos and stress to an already divided electorate.

It's a new day for the FCC. The official biography of the current chair, Jessica Rosenworcel, says that she believes that communications can foster security and enrich our civic life. Clearly, the overblown amount of unrequested, unauthorized, political text spam desperately needs some additional regulation. I hope for the sake of all our civic lives and basic mental health that the FCC reviews and tightens its policies to finally put an end to unwanted political text spam.