At the FCC’s Open Meeting on December 12, 2018, the Commission approved two draft orders that have important implications for companies using text messages to communicate with consumers. 

First, despite opposition from industry participants and concerns from Democratic Senators, the Commission voted to classify SMS and MMS messages as “information services” under the Communications Act. Democratic Commissioner Jessica Rosenworcel dissented from the Commission’s vote, asserting that the order gives carriers the “legal right to block your text messages and censor the very content of your messages.”  This order does not address the legal status of Rich Communication Services (“RCS”), a next-generation messaging service being championed by the GSMA, Google & Android, Samsung, and many carriers and mobile phone manufacturers.  

The Commission also adopted its proposed order mandating the creation of a comprehensive reassigned number database.  This proposal received unanimous support among the Commissioners.  Notably, we have learned that, between the time the draft order was circulated on November 21, 2018, and the time the final order was approved on December 12, 2018, it was modified to create a new “safe harbor” for those companies that utilize the database to remove reassigned numbers from their calling lists.  We will take a closer look at the safe harbor once the final version of the order is released by the FCC.



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