- The Trump campaign has been battling this month with the biggest US cellphone carriers over an effort to blast millions of cell users with texts meant to coax them to vote or donate.
- President Donald Trump’s adviser and son-in-law, Jared Kushner, didn’t appreciate it when AT&T, Verizon, and T-Mobile blocked mass campaign texts to voters. He called the companies to complain, setting off the legal wrangling.
- The cellphone companies are concerned about the possibility of hefty fines related to federal anti-robocall laws and Federal Communications Commission rules.
- “Any effort by the carriers to restrict the campaign from contacting its supporters is suppression of political speech. Plain and simple,” Tim Murtaugh, the Trump campaign communications director, said in a statement to Insider.
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President Donald Trump’s campaign is locked in a battle with the biggest US cellphone carriers over an effort to blast millions of cell users with often annoying texts coaxing them to contribute or vote.
The showdown got serious at the start of July when Trump’s team sent a blast of texts to people who hadn’t signed up for them.
A third-party firm hired to screen such messages for the major cellphone companies blocked the texts. Trump’s campaign didn’t appreciate the move, according to two Republicans familiar with the effort, and Jared Kushner, the president’s top adviser and son-in-law, called the CEOs of AT&T, Verizon, and T-Mobile to complain.
What followed was a convoluted sequence of legal wrangling. The cellphone companies viewed the texts as a possible violation of federal anti-robocall laws and Federal Communications Commission rules that come with hefty fines, the two Republicans told Insider.
The Trump campaign countered that the cellphone companies were stifling its ability to reach voters. It said the texts did not violate a 1991 law, the Telephone Consumer Protection Act, which set strict limits on telemarketing and robocalling and formed the basis of anti-spamming measures ruled on by the FCC. And the campaign points to a June 25 FCC ruling, which it argued loosened the rules on what counted as spam.
“Any effort by the carriers to restrict the campaign from contacting its supporters is suppression of political speech. Plain and simple,” Tim Murtaugh, Trump’s campaign communications director, said in a statement to Insider.
Caught in the middle are millions of cell customers getting hammered with breathless fundraising requests, dire election predictions and paranoid messages meant to drive them to the polls on Election Day. Insider reviewed some of the texts, including one sent Tuesday that said: “Hi it’s Pres. Trump. I need your help ASAP to FIGHT BACK against the radical left & take back my majority. Take a stand NOW.”
Lawyers for the campaign and the cell companies are still fighting over what kinds of messages the campaign is allowed to send and what the companies have the power to stop. The showdown threatens to continue through Election Day, potentially stifling efforts beyond Trump’s campaign to also include the presumptive Democratic nominee Joe Biden as well as down-ballot campaigns that rely on text messages to reach potential voters.
A spammy election
The 2020 presidential campaign was already pretty spammy before the coronavirus pandemic grounded most people indoors. After that, the campaigns learned to rely more on digital campaigning, including mass texting.
Even Washington political operatives who are used to the deluge of campaign requests have complained in recent months about the volume of texts they get both from White House candidates they signed up for as well as from those they didn’t.
Campaigns have long used text messaging to raise money and drive volunteers to rally for them. Almost all of Trump’s campaign staff has added the request that people text the campaign to their Twitter handles.
A Republican close to the president said that as of last week the lawyers for the Trump campaign and the phone companies were still at odds over what would happen. The standoff is especially troubling for Trump, with the clock ticking fast toward Election Day with fewer options for directly reaching with voters as the coronavirus pandemic makes door-to-door canvassing and campaign rallies difficult.
With the blowup between the Trump campaign and the cell companies raging, the cellphone industry played a game of “Who’s on First” — shuffling responsibility for the decision between the companies and an industry lobbying group. Also dragged into the dispute was the third-party firm Zipwhip, which the cellphone companies use to screen for spam, according to a Republican close to the campaign.
In statements to Insider, the cell companies pushed responsibility for the decision to block the texts on their lobbying group. The Cellular Telecommunications Industry Association, however, says it doesn’t regulate text traffic but sets standards for the companies based on intricate federal laws and regulations.
A T-Mobile representative said the company relied on a third-party spam screener to curb those kinds of texts.
Zipwhip would not confirm whether it was in fact the screener used by the cellphone companies. While it also declined to comment directly about its work for the companies, the Seattle-based company insisted it was vigilant about blocking spam.
“Zipwhip’s compliance process requires all texting traffic to follow industry standard guidelines, including where appropriate, a requirement to obtain consent from the message recipient,” Zipwhip’s communications director, Keena Bean, said. “The goal of the industry standard is to protect consumers from receiving unwanted messages and spam and maintain trust in texting as a communications medium.”
Campaign strategists on both the left and the right said they saw a heavy-handed approach by the cellphone industry to skirt the law.
That kind of texting is “a critical method for campaigns and other organizations to increase voter turnout,” said Eric Wilson, a veteran Republican digital strategist who worked on Marco Rubio’s 2016 presidential campaign. “The telecom companies’ decision to selectively prevent messages from reaching voters doesn’t align with federal laws and regulations about texting. This abuse of power in the middle of an election year is tremendously concerning.”
The threat of huge FCC fines
The cellphone carriers have reason to be worried, an industry lawyer said. The FCC, under the Trump-appointed chairman Ajit Pai, has been tougher on the industry, putting the onus on companies to control spam texts.
In February, the five-member commission announced it would attempt to fine the major cell companies $200 million following accusations they wrongfully sold customers’ location data. Last month, the commission proposed fining a telemarketing company $225 million for sending roughly 1 billion robocalls.
“I don’t care if you’re AT&T — if you have to pay a $57 million fine, you’re going to remember that for a long time,” the industry lawyer said, referring to AT&T’s share of the proposed $200 million fine. “The carriers are rightfully nervous, and I think they are erring on the side of catching things.”
Trump also increased the pressure last year when he signed a new law that raised the penalties for violations of the federal robocall and spamming law to up to $10,000 a violation.
It’s unclear how much the companies at the center of the dispute would be on the hook for if Trump campaign texts were ultimately deemed spam. The industry lawyer said the firms were on edge because the FCC has arbitrary discretion to set the fines. That could mean the mobile carriers could get hit with billions of dollars in fines if they allowed the texts to go through.
Option to unsubscribe
Campaign operatives say what Trump’s team has been doing with text messages exists in a legal gray area that allows campaigns to blast cellphone users if the messages are sent manually. If the messages are automated, then they would run afoul of the law and FCC regulations.
Texts reviewed by Insider show the Trump campaign has also not included the option to unsubscribe when it sends out those mass messages.
The industry lobbying group, CTIA, which the cell companies referred questions to, says its standards go well beyond federal laws and regulations.
“We expect all senders — whether airlines, schools, banks, or campaigns — to include clear opt-out language and gain prior consent before sending a text,” a CTIA representative, Nick Ludlum, said in a statement. “These simple steps help protect consumers from spam, and maintain text messaging as a trusted medium for everyone.”
But as of Tuesday, one Democratic strategist said he was still receiving unsolicited texts from the Trump campaign. He said it’s hard for the cell carriers or their vendor to block them because campaigns can change the phone number they send from. That effectively creates a game of “whack-a-mole.”