FCC Chair Acknowledges Limits of the FCC’s Authority Over SMS

Letter from Obernolte, Gottheimer, Garbarino, Dingell

In April 2024, members of Congress (Jay Obernolte (R-CA), Josh Gottheimer (D-NJ), Andrew R. Garbarino (R-NY) and Debbie Dingell (D-MI)) called on the FCC to “take decisive action in addressing the escalating issue of fraudulent and scam text messages that target American consumers.” They are particularly concerned with an increase in cybercriminals using messaging platforms to impersonate financial institutions and other reputable companies. These scams pose a severe threat to consumers’ financial security. Citing a Federal Trade Commission report, the lawmakers emphasized that these scams cost Americans millions annually. They stressed the need for clear regulatory guidance to help telecommunications companies effectively combat these fraudulent schemes. 

FCC Response

In her response letter, dated June 11, 2024, FCC Chairwoman Jessica Rosenworcel outlined the FCC's ongoing efforts and commitment to tackling the issue of scam text messages and acknowledged the challenges posed by rapidly evolving telecommunications technologies and tactics used by cybercriminals.

The Telephone Consumers Protection Act (TCPA), enacted in 1991, was designed to protect consumers from unwanted telemarketing calls and automated messages. Its provisions restrict the hours during which telemarketers can call, mandate consent for marketing messages, and establish penalties for violations. However, as noted, technology and the way bad actors exploit it has changed drastically since the TCPA was first enacted. 

Rosenworcel implies that the rise of scam text messages targeting consumers is a clear example of how the TCPA's current framework may fall short. While the FCC has taken steps, such as requiring carriers to block certain types of fraudulent texts, the volume and variety of scams continue to challenge these efforts. Rosenworcel calls on Congress to update the TCPA to empower the FCC further in combating these abuses and concludes her response by welcoming other legislative proposals to address the issues. 

In Light of Loper Bright

Chairwoman Rosenworcel sent her response letter prior to the Supreme Court’s decision to overturn Chevron, which significantly limited federal agencies regulatory power. Thus, her call to Congress to amend the TCPA to clarify the FCC’s scope of authority is now even more prudent than before. Especially in light of the letter from Republican leaders (which we discussed here), criticizing the FCC in recent years for overstepping the boundaries set by Congress, the Commission should be hesitant to adopt more regulations that go beyond what Congress intended to regulate when it first adopted the TCPA in 1991. 

Following the Supreme Court’s decision in Loper Bright, federal agencies like the FCC will no longer be given deference when interpreting ambiguous statutory language. Since the TCPA does not explicitly mention text messages, the FCC’s authority to implement new regulations, even those designed to combat fraudulent and scam text messages, is likely more limited than the agency has previously acknowledged.  Congress can bring clarity for businesses and consumers by carefully examining whether to amend the TCPA.