iFrom the day the FCC handed the carriers carte blanche to censor speech you knew this day was coming.
It started in 2015. The FCC recognized, for the first time, that carriers could block calls–prior to that time carriers had no choice but to faithfully connect all calls regardless of purpose.
In 2018 the FCC purported to give the carriers the power to block calls on a default basis–meaning that consumers no longer had to opt in.
In 2020-2021 the FCC beefed up safeharbors for carriers–seemingly protecting them from liability. And the Commission has–somehow–determined that text messages are “information service” that do not need to be faithfully transmitted under the Communications Act.
All of this is a castle built upon sand. The FCC cannot give unfettered control to the carriers to censor the nation’s wireless traffic–as its own recent ruling against Rising Eagle confirms:
A [rule] can be impermissibly vague for two independent reasons: (1) the [rule] “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” and (2) the [rule] “authorizes or even encourages arbitrary and discriminatory enforcement.” The first factor is ameliorated if the [rule] contains a scienter requirement. The second factor requires the [rule] to have sufficient specificity to provide standards to law enforcement. Sufficient specificity includes words or phrases that have a well-known technical or other special meaning or a well-settled common-law meaning. The level of specificity does not need to be exact as long as the public and law enforcement can readily determine what the [rule] “as a whole prohibits” as “we can never expect mathematical certainty from our language.”
The Commission’s own words.
Consider those words as applied to the default call blocking paradigm currently in place in the US.
No one knows what calls are subject to being blocked. There is no articulable standard. Legal and consented calls are being blocked by the millions without due process or notice. And industry actors are suffering hundreds of billions in damages as a result.
Yet there is a private right of action in the Communications Act permitted companies to recover all of these damages from the carriers who are acting illegally and unreasonably in blocking consented traffic.
The carriers cannot survive the crushing exposure they face in the wave of litigation to follow. It will be an absolute bloodbath.
But that’s the way it has to be. The default call blocking order is unconstitutional. The safeharbor is make believe and rests on nothing. Even the order classifying text messages as “information services” is paper mache.
Its all going to come crashing down soon. And as the FTC recently learned in AMG Capital Management v FTC , the best of intentions will not allow an agency to override statutory authority. The Courts will shut it down. If not the lower courts, the Supremes will. No quesiton about it.
This odd time in American telecom history–where carriers run roughshod over the mandates of the Communications Act aided and abetted by a runaway regulator–is coming to a close. And it looks like Troutman Amin, LLP will be on the forefront.
Where else would we be?
If YOUR company has seen your LAWFUL AND CONSENTED traffic blocked let us know. You may be entitled to compensation in the form of damages from lost business revenues and other consequential damages. Act quickly, however, as a statute of limitations may prevent you from filing a claim if too much time passes.
The days of the carriers censoring speech and acting as if they are free to determine who gets to communicate and who doesn’t are coming to a close. There needs to be accountability. And there will be. Bet on it.
