Federal Communications Commission FCC 07-26 
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Rules and Regulations Implementing the 
Controlling the Assault of Non-Solicited 
Pornography and Marketing Act of 2003
Rules and Regulations Implementing the 
Telephone Consumer Protection Act of 1991
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CG Docket No. 04-53
CG Docket No. 02-278
ORDER
Adopted:  March 20, 2007 Released:  March 22, 2007
By the Commission:
I. INTRODUCTION
1. In this order we address a Petition for Reconsideration filed by Cingular Wireless, LLC 
(Cingular) of the Commissions 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 Acts2 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.
II. 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 
  
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.  
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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 recipients 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 recipients 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 Commissions rules also 
cross reference FTC rules that define the criteria for determining whether the primary purpose of an 
  
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).
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electronic message is commercial or transactional or relationship.15 Further, the Commissions rules 
establish a variety of methods for senders of MSCMs to obtain a recipients 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 Acts 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 Acts 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 
  
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 recipients express consent to receive a message, 
either in response to a clear and conspicuous request for such consent or at the recipients 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 Acts 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.
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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 Commissions 
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 Cingulars 
petition.29 CTIA  The Wireless Association, formerly known as the Cellular Telecommunications & 
Internet Association, and T-Mobile filed comments supporting Cingulars petition, and an individual 
consumer, John Shaw, filed comments opposing the petition.30
III. DISCUSSION
8. Cingular argues in its petition that the Commissions 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 Commissions 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 
  
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.
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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.
A. Congressional Intent
9. Cingular asserts that the Commissions decision regarding CMRS providers is contrary to 
Congressional intent and cites the Acts 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 
consumers 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, 
  
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.
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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 Commissions 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
B. 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 
  
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.  Cingulars argument appears to be rooted in the Commissions refusal to accept Cingulars 
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). 
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that it argues could fall outside the exclusion.51 T-Mobiles 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.
C. 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 Commissions 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 
  
51 T-Mobile Reply Comments at 5.   T-Mobiles 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-Mobiles 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.
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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 TCPAs 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 Commissions TCPA rules implement the TCPAs 
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 Acts prohibition on sending MSCMs 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 
  
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., 1st 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.
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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. 
D. Constitutionality
18. Cingular includes in its petition an argument made by Verizon Wireless in response to the 
CAN-SPAM NPRM that the Commissions 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 Commissions 
determination in the CAN-SPAM Order that nothing in the CAN-SPAM rules violates CMRS providers 
First Amendment rights.
IV. CONCLUSION
19. We conclude that the Commissions 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 Cingulars petition. 
V. 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/. 
  
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 TCPAs 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)).
Federal Communications Commission FCC 07-26 
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VI.        ORDERING CLAUSES
21. Accordingly, IT IS ORDERED that, pursuant to sections 0.361 and 1.429 of the 
Commissions 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