Last month, the Federal Communications Commission (FCC) denied a petition for reconsideration filed by Cingular Wireless seeking to remove the restriction on sending Mobile Service Commercial Messages (MSCMs) to wireless devices. Under FCC rules promulgated pursuant to the 2003 CAN-SPAM Act, Cingular and other wireless providers must obtain prior authorization from subscribers in order to send them MSCMs. In upholding its prior decision, the FCC determined that including wireless providers in the general ban against sending MSCMs without express prior authorization was consistent with congressional intent and FCC precedent.

CAN-SPAM Act
Congress passed the CAN-SPAM Act, see Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, Pub. L. No. 108-187, 117 Stat. 2699 (2003) codified at 15 U.S.C. §§ 7701-7713, 18 U.S.C. § 1037, and 28 U.S.C. § 994, to protect consumers from unwanted commercial email messages. While the Act gave the Federal Trade Commission and the Department of Justice general enforcement responsibility, it required the FCC to promulgate regulations to protect consumers from unwanted MSCMs and gave the FCC discretion to exempt wireless providers from the prohibition against sending MSCMs to subscribers without express prior authorization.

The FCC's CAN-SPAM Order, 19 FCC Rcd 15927 (2004), held that MSCMs sent by wireless carriers were not fundamentally different from those sent by other entities and decided not to exempt the carriers from having to obtain express authorization before sending MSCMs to their subscribers. The FCC found that wireless providers have unique channels for obtaining express prior authorization from subscribers, including monthly statements and websites, and that the agency's CAN-SPAM rules authorized several means of obtaining consent, such as oral, written and electronic communications.

Denial of Cingular's Petition for Reconsideration
In rejecting Cingular's Petition for Reconsideration of its CAN-SPAM Order, the FCC found that each of the arguments raised by Cingular was carefully and properly analyzed in the 2004 Order.

Cingular asserted first that Congress, in passing the Act, recognized that wireless providers can be relied upon not to abuse their relationship with their customers by sending unwanted commercial email messages. Noting that Cingular provided no support for this argument, the FCC also explained that the Act is "unambiguous regarding the need to curb spam in general" and concluded that the agency correctly assessed the legislative history in deciding to include wireless providers in the general ban on sending MSCMs without prior consent.

Cingular next argued that subscribers benefit from communications relating to service upgrades, new offers, and special discounts, but, as the FCC noted, Cingular did not explain why such communications are not permitted by the exclusion to the ban that allows for the sending of "transactional" or "relationship" messages. Indeed, in deciding to uphold the ban against MSCMs in its CAN-SPAM Order, the FCC concluded that most of the email messages wireless providers send to their customers include account balance or other information relating to the ongoing purchase and use of services by the customers, qualifying them as transactional or relationship communications. Moreover, despite requests in the Notice of Proposed Rulemaking that led to the 2004 CAN-SPAM Order, wireless providers were unable to provide any examples of such messages that fall outside the transactional or relationship exclusion.

Cingular also argued that FCC failure to exempt wireless providers under the CAN-SPAM Act is inconsistent with the agency's recognition of an "established business relationship" in rules promulgated pursuant to the Telephone Consumer Protection Act (TCPA). The FCC explained that, in contrast to the TCPA, which contains an express exemption, the CAN-SPAM Act contains a permissible exemption to be authorized only after FCC examination and that it contains "strong statements stressing the need for additional protections for consumers from the costs and intrusions of MSCMs sent to their wireless devices."

Finally, Cingular argued that banning wireless providers from sending MSCMs without express prior authorization violates providers' First Amendment rights. The FCC explained that this argument received careful consideration in the 2004 CAN-SPAM Order, wherein the FCC determined that its rules advanced a substantial government interest and were narrowly tailored to serve that interest in accordance with First Amendment principles.