**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | CG Docket No. 04-53          |
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| Rules and Regulations            | ** | CG Docket No. 02-278         |
| Implementing the Controlling the |    |                              |
| Assault of Non-Solicited         | *  |                              |
| Pornography and Marketing Act of | *) |                              |
| 2003                             | ** |                              |
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| Implementing the Telephone       | *) |                              |
| Consumer Protection Act of 1991  | ** |                              |
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**ORDER**

**Adopted: March 20, 2007 Released: March 22, 2007**

By the Commission:

# INTRODUCTION

1.  In this order we address a Petition for Reconsideration filed by
    Cingular Wireless, LLC (Cingular) of the Commission's *CAN-SPAM
    Order.*[^1] Cingular asks the Commission to reconsider its decision
    to include Commercial Mobile Radio Service (CMRS) providers sending
    Mobile Service Commercial Messages (MSCMs) to their subscribers in
    the CAN-SPAM Act's[^2] restriction on sending MSCMs to wireless
    devices.[^3] This decision requires CMRS providers such as Cingular
    to obtain express prior authorization from their subscribers before
    sending them MSCMs. For the reasons discussed below, we deny the
    petition.

# BACKGROUND

2.  On December 8, 2003, Congress passed the CAN-SPAM Act to address the
    growing number of unsolicited commercial electronic mail
    messages.[^4] The Act charged the Federal Trade Commission (FTC) and
    the Department of Justice with general enforcement responsibility,
    and, in addition, required the Federal Communications Commission
    (FCC or Commission), in consultation with the FTC, to promulgate
    rules to protect consumers from unwanted MSCMs.[^5] The Act defines
    "mobile service commercial message" as a "commercial electronic mail
    message that is transmitted directly to a wireless device that is
    utilized by a subscriber of commercial mobile service . . . in
    connection with such service."[^6] A "commercial electronic mail
    message" is in turn defined as "an electronic message for which the
    primary purpose is commercial advertisement or promotion of a
    commercial product or service (including content on an Internet
    website operated for a commercial purpose)." [^7] The Act further
    states that the term "commercial electronic mail message" does not
    include a transactional or relationship message.[^8] It defines the
    term "transactional or relationship message" as:

> an electronic mail message the primary purpose of which is---(i) to
> facilitate, complete, or confirm a commercial transaction that the
> recipient has previously agreed to enter into with the sender; (ii) to
> provide warranty information, product recall information, or safety or
> security information with respect to a commercial product or service
> used or purchased by the recipient; (iii) to provide (I) notification
> concerning a change in the terms or features of; (II) notification of
> a change in the recipient's standing or status with respect to; or
> (III) at regular periodic intervals, account balance information or
> other type of account statement with respect to a subscription,
> membership, account, loan, or comparable ongoing commercial
> relationship involving the ongoing purchase or use by the recipient of
> products or services offered by the sender; (iv) to provide
> information directly related to an employment relationship or related
> benefit plan in which the recipient is currently involved,
> participating, or enrolled; or (v) to deliver goods or services,
> including product updates or upgrades, that the recipient is entitled
> to receive under the terms of a transaction that the recipient has
> previously agreed to enter into with the sender.[^9]

3.  The CAN-SPAM Act prohibits the sending of MSCMs without the
    recipient's express prior authorization.[^10] The Act gives the
    Commission the discretion to exempt providers of commercial mobile
    services sending electronic messages to their subscribers from the
    prohibition on the sending of MSCMs to wireless devices without
    express prior authorization.[^11] The Act directs the Commission, in
    determining whether to exempt such providers, to "take into
    consideration . . . the relationship that exists between providers
    of such services and their subscribers."[^12] It further states
    that, if the Commission determines to exempt commercial mobile
    services providers sending electronic messages to their subscribers
    from the ban on sending MSCMs without express prior authorization,
    it shall require such providers to allow their subscribers to
    indicate a desire not to receive future messages at the time of
    subscribing to service and in any billing mechanism.[^13]

4.  Pursuant to these directives, the Commission in the *CAN-SPAM Order*
    adopted rules that implement the statutory definitions of the terms
    "mobile service commercial message," "commercial electronic mail
    message," and "transactional or relationship message."[^14] The
    Commission's rules also cross reference FTC rules that define the
    criteria for determining whether the primary purpose of an
    electronic message is commercial or transactional or
    relationship.[^15] Further, the Commission's rules establish a
    variety of methods for senders of MSCMs to obtain a recipient's
    express prior authorization, require senders of MSCMs to provide a
    recipient the means to revoke any express prior authorization, and
    mandate the inclusion of specified disclosures in requests for
    express prior authorization.[^16]

5.  The Commission also determined not to exempt CMRS providers sending
    MSCMs to their subscribers from the ban on sending MSCMs without
    express prior authorization.[^17] In making this determination, the
    Commission considered the record developed in response to the
    *CAN-SPAM Notice of Proposed Rulemaking,*[^18] in which it asked
    whether a separate exemption for CMRS providers sending messages to
    their subscribers was necessary in light of the Act's exclusion of
    transactional or relationship messages. The Commission expressly
    asked CMRS providers to supply specific examples of messages sent to
    their customers that did not already fall outside the ban because of
    this exclusion.[^19] In response, CMRS providers argued that they
    should be exempt from the ban, but failed to provide specific
    examples of messages not already covered by the Act's exclusion of
    transactional or relationship messages.[^20] In contrast, several
    consumer groups, the National Association of Attorneys General, and
    the non-profit Electronic Privacy Information Center all argued
    against a special exemption for CMRS providers.[^21] Consumer groups
    and individuals in particular emphasized that wireless subscribers
    deserved greater protection from unwanted commercial electronic mail
    undiluted by an exemption for their wireless service providers, and
    were concerned regarding the nuisance caused by receiving unwanted
    messages on their wireless devices.[^22] These commenters also
    argued that the bulk of CMRS providers' messages to their customers
    were transactional or relationship messages.[^23]

6.  On the basis of the record before it, the Commission concluded that
    safeguarding wireless consumers from unwanted MSCMs from their CMRS
    providers was consistent with Congressional intent in passing the
    Act to ensure consumers received "less, not more, spam."[^24] The
    Commission further reasoned that MSCMs sent by CMRS providers were
    not fundamentally different from those sent by other senders.[^25]
    The Commission noted that, while CMRS providers could send messages
    without charging their customers, Congress stated in passing the Act
    that unwanted electronic mail could still result in costs for
    storage and time spent accessing, reviewing, and discarding it.[^26]
    Finally, the Commission found that CMRS providers had unique
    channels such as monthly statements and web sites for obtaining
    express prior authorization from their customers, and that the
    CAN-SPAM rules allowed senders a number of means, such as oral,
    written, or electronic, to obtain express prior authorization.[^27]

7.  On October 18, 2004, Cingular filed its petition for reconsideration
    of the Commission's decision not to exempt CMRS providers sending
    MSCMs to their subscribers from the ban on sending MSCMs without
    express prior authorization.[^28] The Commission sought comment on
    Cingular's petition.[^29] CTIA -- The Wireless Association, formerly
    known as the Cellular Telecommunications & Internet Association, and
    T-Mobile filed comments supporting Cingular's petition, and an
    individual consumer, John Shaw, filed comments opposing the
    petition.[^30]

# DISCUSSION

8.  Cingular argues in its petition that the Commission's inclusion of
    CMRS providers sending messages to their subscribers in the ban on
    sending MSCMs without express prior authorization is inconsistent
    with the intent of Congress in passing the CAN-SPAM Act and prior
    Commission precedent.[^31] According to Cingular, because Congress
    contemplated a possible exemption for CMRS providers, the
    Commission's failure to adopt one is arbitrary and capricious and a
    violation of a Congressional mandate.[^32] Cingular further argues
    that the Commission failed to analyze the relationship between CMRS
    providers and their customers as required by the CAN-SPAM Act, and
    that the inclusion of CMRS providers in the ban unduly limited their
    First Amendment right to commercial free speech, thereby rendering
    the Act unconstitutional as applied to Cingular.[^33] Cingular or
    other CMRS providers made most of these same arguments in response
    to the *CAN-SPAM NPRM.*[^34] The Commission addressed these
    arguments in the *CAN-SPAM Order*, and also carefully analyzed the
    relationship between CMRS providers and their subscribers. We
    address these arguments again below.

## Congressional Intent

9.  Cingular asserts that the Commission's decision regarding CMRS
    providers is contrary to Congressional intent and cites the Act's
    language authorizing the Commission to determine whether to subject
    CMRS providers to the ban, after considering the relationship that
    exists between providers and their subscribers.[^35] CTIA asserts
    that "Congress also recognized that wireless carriers could be
    relied upon not to abuse their relationship with their customers by
    sending unwanted commercial electronic mail messages,"[^36] but
    provides no support for this argument.

10. These arguments ignore the plain language of the Act, which does not
    exempt CMRS providers, but merely permits the Commission to exempt
    them after examining the relationship between CMRS providers and
    their subscribers.[^37] The Act thus authorizes the Commission to
    choose not to exempt CMRS providers.[^38] The legislative history of
    the Act is unambiguous regarding the need to curb spam in general,
    supplying repeated references to the harms and costs of spam.[^39]
    With respect to wireless spam in particular, the *CAN-SPAM Order*
    pointed to portions of the legislative history that refer to the
    huge wireless spam problem in Japan of 800,000 million spam messages
    a day, a problem Congress intended the statute to circumvent.[^40]
    This legislative history also notes that the wireless spam
    provisions of the Act "require an FCC rulemaking to assess and put
    in place additional consumer protections\[,\]" and describes the FCC
    rulemaking as a "proceeding \[that\] permits the FCC to examine the
    nature of a consumer's relationship with their wireless phone and
    service \[provider\] and to take into account the potentially unique
    technical characteristics which may warrant wireless-specific
    rules."[^41] This legislative history indicates no absolute intent
    of Congress to exempt CMRS providers from these Commission rules,
    but instead a desire to have the Commission give particular
    consideration to the relationship between wireless service providers
    and their subscribers in determining whether such an exemption is
    appropriate. The Commission's *CAN-SPAM Order* correctly evaluated
    Congressional intent in deciding to include CMRS providers sending
    MSCMs to their subscribers in the general ban on sending MSCMs
    without express prior authorization.[^42]

## Relationship Between CMRS Providers and Their Subscribers

11. Cingular asserts that the Commission failed to analyze the
    relationship between CMRS providers and their customers as directed
    by the CAN-SPAM Act.[^43] CTIA argues that, "\[w\]ireless customers
    benefit from routine communications with their providers regarding
    new offers, special discounts, and the availability of upgraded
    service."[^44] CTIA further claims, as it claimed in response to the
    *CAN-SPAM NPRM*, that such messages would not fall within the
    transactional or relationship exclusion, but fails to explain
    why.[^45] CTIA also asks, as it requested in response to the
    *CAN-SPAM NPRM*, that we permit CMRS providers to send their
    subscribers, without express prior authorization, MSCMs regarding
    "partner" service offerings.[^46] T-Mobile asserts that "all parties
    agree that wireless customers want the carriers to advise them of
    new services, plans, and product offerings."[^47]

12. The Commission carefully examined the relationship between CMRS
    providers and their subscribers in the *CAN-SPAM Order*. First, the
    Commission refused to presume customers' willingness to receive
    messages from their CMRS providers because several groups
    representing consumers and many individual consumers stated that
    they did not want to receive any MSCMs without express prior
    authorization.[^48] Second, the Commission concluded that most of
    the electronic mail messages that CMRS providers send to their
    customers are excluded "transactional or relationship" messages, as
    defined by the CAN-SPAM Act.[^49] These messages would include
    "account balance information or other type of account statement with
    respect to a subscription, membership, account, loan or comparable
    ongoing commercial relationship involving the ongoing purchase or
    use by the recipient of products or services offered by the
    sender."[^50] The Commission reached this conclusion because,
    despite a specific request in the *CAN-SPAM* *NPRM* for examples of
    messages that would fall outside the transactional or relationship
    exclusion, CMRS providers supplied none.

13. In this proceeding T-Mobile provides a general description of three
    types of messages that it argues could fall outside the
    exclusion.[^51] T-Mobile's examples are substantially the same as
    those considered in the *CAN-SPAM Order,* and would likely fall
    within the transactional or relationship exclusion.[^52]
    Additionally, the FTC conducted a lengthy and thorough rulemaking to
    determine when the primary purpose of an electronic mail message is
    transactional or relationship, giving CMRS providers ample
    opportunity to clarify whether the electronic mail messages they
    send their customers fall within the exclusion.[^53] The FTC
    provided additional guidance on when messages should be considered
    transactional or relationship.[^54] Finally, the Commission noted in
    the *CAN-SPAM Order* that CMRS providers have several unique outlets
    unavailable to other senders of MSCMs, such as bills and web sites,
    to obtain their customers' express prior authorization.[^55]

14. CTIA argues that the market for wireless services is sufficiently
    competitive that customers receiving unwanted wireless messages from
    their providers can simply switch to a new provider.[^56] T-Mobile
    made similar arguments in response to the *CAN-SPAM NPRM*.[^57]
    While subscribers may indeed exercise this option, it may not be
    without cost. Further, customers could be discouraged from switching
    providers by the assumption that a new provider would be just as
    likely to send unwanted messages, particularly if we were to grant
    the exemption for all CMRS providers. Finally, it is far easier for
    customers desiring MSCMs to provide their express prior
    authorization than for customers not wanting MSCMs to switch
    wireless providers. For these reasons, we decline to lift the ban on
    CMRS providers sending their subscribers MSCMs without express prior
    authorization.

## Prior Commission Precedent

15. Cingular and its supporters claim the Commission diverged from
    precedent by including CMRS providers sending MSCMs to their
    subscribers in the ban on sending MSCMs without express prior
    authorization.[^58] Specifically, Cingular and T-Mobile assert that
    the Commission's failure to exempt CMRS providers from the express
    prior authorization requirement is inconsistent with its recognition
    of an "established business relationship" in the context of its
    rulemakings under the Telephone Consumer Protection Act (TCPA).[^59]
    CTIA similarly cites these rulemakings as support for the claim
    that, "\[t\]he Commission repeatedly has recognized that wireless
    customers want and expect to be informed of the latest and most
    innovative services their provider has to offer."[^60]

16. Cingular and its supporters' reliance on the TCPA's "established
    business relationship" exemption is misplaced.[^61] In the TCPA,
    Congress expressly exempted from its definition of "telephone
    solicitation" any telephone call or message "to any person with whom
    the caller has an established business relationship."[^62] In the
    CAN-SPAM Act, Congress stated that the Commission *could* establish
    an exemption for CMRS providers from the prohibition on sending
    MSCMs without express prior authorization, after considering the
    relationship between such providers and their subscribers.[^63]
    Thus, while the TCPA contains an express exemption, the CAN-SPAM Act
    contains only a permissible exemption to be granted or not granted
    after examination by the Commission. Further, while the legislative
    history of the TCPA indicates that it was not intended unduly to
    interfere with ongoing business relationships, the legislative
    history of the CAN-SPAM Act contains strong statements stressing the
    need for additional protections for consumers from the costs and
    intrusion of MSCMs sent to their wireless devices.[^64]

17. Further, the Commission has consistently imposed more stringent
    regulations on unsolicited calls and electronic messages to wireless
    devices than unsolicited calls and electronic messages to wireline
    devices. For example, the Commission's TCPA rules implement the
    TCPA's express ban on autodialed or prerecorded calls to wireless
    devices with a single exception: calls to subscribers for which the
    subscriber is not charged.[^65] In adopting its CAN-SPAM rules, the
    Commission implemented the CAN-SPAM Act's prohibition on sending
    MSCM's without express prior authorization, and, after considering
    the relationship between CMRS providers and their subscribers,
    decided not to exempt CMRS providers from the prohibition.[^66] In
    making this decision, the Commission considered arguments, repeated
    here by T-Mobile,[^67] that MSCMs from CMRS providers *may* be
    provided without additional cost to subscribers, but concluded that,
    "\[a\]n MSCM from a CMRS provider may be just as intrusive, and
    costly in other respects, as an MSCM from a third party."[^68] Only
    two wireless carriers, Verizon Wireless and Nextel, supported an
    exemption for CMRS providers that would apply only when the
    subscriber paid no charge for the message.[^69] Neither Verizon
    Wireless nor Nextel specified that subscribers purchasing "buckets"
    of minutes of use for a fixed monthly fee would not have minutes
    deducted for time spent accessing, reading, storing, or discarding
    the MSCMs they send.[^70] Congress made clear in the CAN-SPAM Act
    that it was concerned with such costs, as well as the "significant
    monetary costs on providers of Internet access services, businesses,
    and educational and nonprofit institutions that carry and receive
    such mail\[.\]"[^71] Thus, contrary to the assertions of Cingular
    and its supporters, the Commission has not diverged from precedent
    in refusing to exempt CMRS providers from the prohibition against
    sending MSCMs without express prior authorization, but has
    consistently examined and applied express statutory language,
    legislative history, and the record before it in adopting rules for
    unsolicited calls and messages to wireless devices.

## Constitutionality

18. Cingular includes in its petition an argument made by Verizon
    Wireless in response to the *CAN-SPAM NPRM* that the Commission's
    inclusion of CMRS providers in the ban on sending MSCMs without
    express prior authorization violates the First Amendment right of
    such providers to free commercial speech.[^72] The Commission gave
    this argument full consideration in the *CAN-SPAM Order.*[^73] Using
    the analytical framework established by the Supreme Court in
    *Central Hudson Gas & Elec. v. Pub. Serv. Comm. of N.Y.*, the
    Commission determined that its CAN-SPAM rules advanced a substantial
    government interest and were no more extensive than necessary to
    serve that interest.[^74] Cingular has advanced no new facts, law,
    or arguments here that would cause us to change the Commission's
    determination in the *CAN-SPAM Order* that nothing in the CAN-SPAM
    rules violates CMRS providers' First Amendment rights.

# CONCLUSION

19. We conclude that the Commission's decision to include CMRS providers
    sending MSCMs to their subscribers in the general ban on sending
    MSCMs without express prior authorization is consistent with
    Congressional intent in enacting the CAN-SPAM Act and prior
    Commission precedent. We further conclude that the Commission
    adequately analyzed the relationship between CMRS providers and
    their subscribers in reaching this decision. Further, as the
    Commission concluded in the *CAN-SPAM Order*, the CAN-SPAM rules do
    not violate CMRS providers' First Amendment rights. For these
    reasons, we deny Cingular's petition.

# MATERIALS IN ACCESSIBLE FORMATS

20. To request materials in accessible formats (such as Braille, large
    print, electronic files, or audio format), send an e-mail to
    <fcc504@fcc.gov> or call the Consumer & Governmental Affairs Bureau
    at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This order can
    also be downloaded in Word and Portable Document Formats (PDF) at
    <http://www.fcc.gov/cgb/>.

    **VI. ORDERING CLAUSES**

21. Accordingly, IT IS ORDERED that, pursuant to sections 0.361 and
    1.429 of the Commission's rules, 47 C.F.R. §§ 0.361 and 1.429, the
    petition for reconsideration of Cingular Wireless, LLC, filed in CG
    Docket No. 04-53, IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: *Rules and Regulations Implementing the Controlling the Assault of
    Non-Solicited Pornography and Marketing Act of 2003,* CG Docket No.
    04-53, *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Petition for
    Reconsideration (filed Oct. 18, 2004) (Petition); *see also* Order,
    19 FCC Rcd 15927 (2004) (*CAN-SPAM Order*).

[^2]: Controlling the Assault of Non-Solicited Pornography and Marketing
    Act of 2003, Pub. L. No. 108-187, 117 Stat. 2699 (2003) (CAN-SPAM
    Act or Act), *codified at* 15 U.S.C. §§ 7701-7713, 18 U.S.C. § 1037,
    and 28 U.S.C. § 994.

[^3]: Petition at 1; *see also* *CAN-SPAM Order,* 19 FCC Rcd at
    15971-72, *codified at* 47 C.F.R. §§ 64.3100(a) and (c)(7).

[^4]: CAN-SPAM Act, Section 2, *codified at* 15 U.S.C. § 7701.

[^5]: *Id.*, Section 14, *codified at* 15 U.S.C. § 7712.

[^6]: *Id.,* Section 14(d), *codified at* 15 U.S.C. § 7712(d).

[^7]: *Id.,* Section 3(2)(A), *codified at* 15 U.S.C. § 7702(2)(A).

[^8]: *Id.*, Section 3(2)(B), *codified at* 15 U.S.C. § 7702(2)(B).

[^9]: *Id.,* Section 3(17), *codified at* 15 U.S.C. § 7702(17).

[^10]: *Id.,* Section 14(b)(1), *codified at* 15 U.S.C. § 7712(b)(1).

[^11]: *Id.,* Section 14(b)(3), *codified at* 15 U.S.C. § 7712(b)(3).

[^12]: *Id.*

[^13]: *Id.*

[^14]: *CAN-SPAM Order*, 19 FCC Rcd at 15972, *codified at* 47 C.F.R. §§
    64.3100(c)(2), (7) and (8).

[^15]: *See Federal Trade Commission*, RIN 3084-AA96, Definitions and
    Implementation Under the CAN-SPAM Act, Final Rule, 70 Fed. Reg.
    3110-3129 (Jan. 19, 2005), *codified at* 16 C.F.R. §§ 316.1-316.5
    (*FTC Primary Purpose Final Rule*); *see also* *Rules and
    Regulations Implementing the Controlling the Assault of
    Non-Solicited Pornography and Marketing Act of 2003,* CG Docket No.
    04-53, *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Order, 20 FCC Rcd
    5931 (2005).

[^16]: *CAN-SPAM Order*, 19 FCC Rcd at 15973, *codified at* 47 C.F.R. §
    64.1300(d). The Act establishes a less stringent requirement, "prior
    affirmative consent," for sending commercial electronic mail
    messages other than MSCMs*.* CAN-SPAM Act, Section 5(a)(4),
    *codified at* 15 U.S.C. § 7704(a)(4); *see also* *CAN-SPAM Order,*
    19 FCC Rcd at 15943-44, para. 42. The Act defines "affirmative
    consent" as the recipient's express consent to receive a message,
    either in response to a clear and conspicuous request for such
    consent or at the recipient's own initiative, and clear and
    conspicuous notice at the time consent is communicated that the
    recipients' electronic mail address can be transferred to another
    party for the purpose of initiating commercial electronic mail
    messages. CAN-SPAM Act, Section 3(1), *codified at* 15 U.S.C. §
    7702(1).

[^17]: *CAN-SPAM Order*, 19 FCC Rcd at 15953, para. 71.

[^18]: *Rules and Regulations Implementing the Controlling the Assault
    of Non-Solicited Pornography and Marketing Act of 2003,* CG Docket
    No. 04-53, *Rules and Regulations Implementing the Telephone
    Consumer Protection Act of 1991,* CG Docket No. 02-278, Notice of
    Proposed Rulemaking and Further Notice of Proposed Rulemaking, 19
    FCC Rcd 5056, 5072-73, para. 39 (2004) (*CAN-SPAM NPRM*).

[^19]: *Id.* Further, the Commission posed the question of how to
    implement the Act's "opt out" requirements for subscribers desiring
    to cease receiving MSCMs if the Commission decided to adopt an
    exemption for CMRS providers. *Id.* at 5073, para. 40.

[^20]: *See CAN-SPAM Order,* 19 FCC Rcd at 15950-51, para. 65.

[^21]: *Id.* at 15951, para. 66 (*citing Rules and Regulations
    Implementing the Controlling the Assault of Non-Solicited
    Pornography and Marketing Act of 2003,* CG Docket No. 04-53, *Rules
    and Regulations Implementing the Telephone Consumer Protection Act
    of 1991,* CG Docket No. 02-278, Comments of Consumer Action,
    Consumer Federation of America, and the National Consumers League at
    4 (filed Apr. 30, 2004) (Consumer Action, et al. Comments); Comments
    of the National Association of Attorneys General at 7 (filed Apr.
    30, 2004) (NAAG Comments); Comments of the Electronic Privacy
    Information Center at 7-8 (filed Apr. 30, 2004) (EPIC Comments)).

[^22]: *Id.*

[^23]: *See id.* at 15951, para. 67 (*citing* Consumer Action, et al.
    Comments at 4; NAAG Comments at 7; *Rules and Regulations
    Implementing the Controlling the Assault of Non-Solicited
    Pornography and Marketing Act of 2003,* CG Docket No. 04-53, *Rules
    and Regulations Implementing the Telephone Consumer Protection Act
    of 1991,* CG Docket No. 02-278, Reply Comments of the National
    Consumers Union at 4 (filed May 17, 2004); Reply Comments of John A.
    Shaw at 6 (filed May 17, 2004)).

[^24]: *Id.* at 15952, para. 70, (*citing* 149 Cong. Rec. H12195).

[^25]: *Id.*

[^26]: *Id.*

[^27]: *Id.*, *see also id.* at 15944, paras. 42-43.

[^28]: *See* n.1, *supra.*

[^29]: *See* *Rules and Regulations Implementing the Controlling the
    Assault of Non-Solicited Pornography and Marketing Act of 2003,* CG
    Docket No. 04-53, Public Notice, Report No. 2680 (rel. Oct. 29,
    2004); *see also* 68 Fed. Reg. 67737 (Nov. 19, 2004).

[^30]: *See Rules and Regulations Implementing the Controlling the
    Assault of Non-Solicited Pornography and Marketing Act of 2003,* CG
    Docket No. 04-53, Comments of CTIA -- The Wireless Association
    (filed Dec. 6, 2004) (CTIA Comments); Reply Comments of T-Mobile USA
    (filed Dec. 16, 2004) (T-Mobile Reply Comments); Opposition of John
    A. Shaw to Petition for Reconsideration Submitted by Cingular
    Wireless LLC (filed Nov. 15, 2004) (Shaw Opposition).

[^31]: Petition at 1, 2-4.

[^32]: *See id*. at 4, 8.

[^33]: *Id.* at 1, 4-8.

[^34]: *See e.g., CAN-SPAM Order*, 19 FCC Rcd at 15952, para. 69
    (*citing Rules and Regulations Implementing the Controlling the
    Assault of Non-Solicited Pornography and Marketing Act of 2003,* CG
    Docket No. 04-53, *Rules and Regulations Implementing the Telephone
    Consumer Protection Act of 1991,* CG Docket No. 02-278, Comments of
    T-Mobile USA at 16 (filed Apr. 30, 2004) (T-Mobile Comments);
    Comments of Verizon Wireless at 14-16 (filed Apr. 30, 2004)).

[^35]: Petition at 2; *see also* T-Mobile Reply Comments at 2; CAN-SPAM
    Act, Section 14(b)(3), *codified at* 15 U.S.C. § 7712(b)(3).

[^36]: CTIA Comments at 2. Similarly, CTIA provides no support for its
    claim that, "Congress explicitly recognized an exception to the
    prior authorization requirement for CMRS providers based on their
    unique relationship with their customers . . . ." *Id.* at 3.

[^37]: *See* CAN-SPAM Act, Section 14(b)(3), *codified at* 15 U.S.C. §
    7712(b)(3) ("The Federal Communications Commission, in promulgating
    the rules, shall . . . take into consideration, in determining
    whether to subject providers of commercial mobiles services to \[the
    ban on sending MSCMs without express prior authorization\], the
    relationship that exists between providers of such services and
    their subscribers, but if the Commission determines that such
    providers should not be subject to \[the ban\], the rules shall
    require such providers, in addition to complying with the other
    provisions of this Act, to allow subscribers to indicate a desire
    not to receive future mobile services commercial messages from the
    provider\[.\]").

[^38]: *Id.*

[^39]: *See e.g.,* 149 Cong. Rec. H12195.

[^40]: *CAN-SPAM Order*, 19 FCC Rcd at 15952, n.197 (*citing* 149 Cong.
    Rec. H12854-08 at 12860).

[^41]: *See* 149 Cong. Rec. H12854-08 at 12860.

[^42]: *See CAN-SPAM Order*, 19 FCC Rcd at 15952-53, para. 70; *see
    also* Shaw Opposition at 6-7.

[^43]: Petition at 4-5. Cingular's argument appears to be rooted in the
    Commission's refusal to accept Cingular's assertion in its response
    to the *CAN-SPAM NPRM* that customers could be presumed to be
    willing to receive information about their providers' new products
    and services. *See CAN-SPAM Order*, 19 FCC Rcd at 15952, para. 69
    (*citing, e.g., Rules and Regulations Implementing the Controlling
    the Assault of Non-Solicited Pornography and Marketing Act of 2003,*
    CG Docket No. 04-53, *Rules and Regulations Implementing the
    Telephone Consumer Protection Act of 1991,* CG Docket No. 02-278,
    Comments of Cingular Wireless LLC at 5-6 and 9 (filed Apr. 30,
    2004)).

[^44]: CTIA Comments at 3.

[^45]: *Id.* at 3; *see also CAN-SPAM Order,* 19 FCC Rcd at 15952,
    n.192.

[^46]: CTIA Comments at 6, n.19; *see also* *CAN-SPAM Order,*19 FCC Rcd
    at 15950-51, para. 65; Shaw Opposition at 7.

[^47]: T-Mobile Reply Comments at 1.

[^48]: *CAN-SPAM Order*, 19 FCC Rcd at 15952-53, para. 70 (*citing*
    Consumer Action et al. Comments at 4; NAAG Comments at 7; EPIC
    Comments at 7-8; Reply Comments of Consumers Union at 4).

[^49]: *Id.* at 15953, para. 71.

[^50]: *See* CAN-SPAM Act, Section 3(17), *codified at* 15 U.S.C. §
    7702(17).

[^51]: T-Mobile Reply Comments at 5. T-Mobile's examples are: 1) account
    balance information that may not be sent "regularly;" 2) advice that
    a \$39/600 minute rate plan has been converted to a \$39/800 minute
    rate plan that the customer may not be entitled to receive in the
    subscription contract; and 3) a reminder that a customer should use
    a credit under a promotional offer before it expires.

[^52]: *CAN-SPAM Order*, 19 FCC Rcd at 15951, para. 67 (noting that
    messages "alert\[ing\] consumers about fraud" are not commercial
    messages and that messages alerting "a prepaid customer that his
    account balance is running low" would fall under the exclusion for a
    transactional or relationship message). As to T-Mobile's examples
    here: account balance information likely falls within the
    transactional and relationship message exclusion; a change in the
    terms of a pricing plan, even if the customer is not entitled to
    received notice of the change, likely falls within the exclusion;
    and a reminder to use a credit likely falls within the exclusion.

[^53]: *See FTC Primary Purpose Final Rule*, n.15, *supra*.

[^54]: *See Federal Trade Commission*, RIN 3084-AA96, Definitions,
    Implementation, and Reporting Requirements Under the CAN-SPAM Act,
    Notice of Proposed Rulemaking, 70 Fed. Reg. 25426-25455 (May 12,
    2005).

[^55]: *CAN-SPAM Order*, 19 FCC Rcd at 15952-53, para. 70.

[^56]: CTIA Comments at 4.

[^57]: T-Mobile Comments at 17.

[^58]: Petition at 2-4; T-Mobile Reply Comments at 2; CTIA Comments at
    5.

[^59]: Petition at 2-4; T-Mobile Reply Comments at 2 (*citing Rules and
    Regulations Implementing the Telephone Consumer Protection Act of
    1991,* CC Docket No. 92-90, Report and Order, 7 FCC Rcd 8752,
    8770-71, para. 34 (1992) (*1992 TCPA Order*); *Rules and Regulations
    Implementing the Telephone Consumer Protection Act of 1991,* CG
    Docket No. 02-278, Report and Order, 18 FCC Rcd 14014, 14042-43,
    para. 42 (2003) (*2003 TCPA Order*)); *see also* Pub. L. No.
    102-243, 105 Stat. 2394 (1991), *codified at* 47 U.S.C. § 227.

[^60]: CTIA Comments at 5 (*citing 1992 TCPA Order*, 7 FCC Rcd at
    8770-71, para. 34 (1992); *2003 TCPA* *Order*, 18 FCC Rcd at
    14042-43, paras. 42 and 43 (2003)).

[^61]: *See* Shaw Opposition at 3 ("The regulations adopted in this
    \[CAN-SPAM\] docket serve a different purpose \[from the TCPA
    regulations\] -- the protection of consumers from text messages sent
    to a wireless phone. These unwanted text messages, in addition to
    the intrusiveness caused by calls to wireline phones, may interrupt
    the subscriber while in locations where the subscriber cannot
    receive such messages, (e.g., while driving, while in meetings,
    etc.). A higher level of protection is given to wireless subscribers
    than to wireline subscribers.").

[^62]: *See* 47 U.S.C. § 227(a)(3)(B).

[^63]: CAN-SPAM Act, Section 14(b)(3), *codified at* 15 U.S.C. §
    7712(b)(3).

[^64]: *See* para. 10, *supra; see also 1992 TCPA Order*, 7 FCC Rcd at
    8770-71, para. 34 (*citing* House Report 102-317 at 13, 102d Cong.,
    1^st^ Session (1991)).

[^65]: *See* *2003 TCPA Order,* 18 FCC Rcd. at 14111, para.160 (*citing*
    *1992 TCPA Order*, 7 FCC Rcd at 8775, para. 45).

[^66]: *CAN-SPAM Order*, 19 FCC Rcd at 15952-53, paras. 70-71.

[^67]: T-Mobile Reply Comments at 4.

[^68]: *CAN-SPAM Order*, 19 FCC Rcd at 15952-53, para. 70.

[^69]: *Id.* at 15950, n.177 and 15950-51, para. 65.

[^70]: *See 2003 TCPA Order*, 18 FCC Rcd at 14115, n.610 (determining
    that forbearing from deducting minutes for time spent on autodialed
    or prerecorded messages to wireless devices is a necessary
    prerequisite for an exemption from the TCPA's ban on such messages).

[^71]: CAN-SPAM Act*,* Sections 2(a)(3) and 2(a)(6), *codified at* 15
    U.S.C. §§ 7701(a)(3) and 7701(a)(6).

[^72]: Petition at 6; *see also CAN-SPAM Order*, 19 FCC Rcd at 15035,
    para. 21.

[^73]: *CAN-SPAM Order*, 19 FCC Rcd at 15935-36, paras. 21-23.

[^74]: *Id. at* 15935, para. 21 (*citing Central Hudson Gas & Elec. v.
    Pub. Serv. Comm. of N.Y.*, 447 U.S. 557 (1980)).