Over the dissent of its lone Democratic Commissioner, Jessica Rosenworcel, the FCC today declared that two forms of wireless messaging, short message service (SMS) and multimedia messaging service (MMS), are information services subject only to light regulation under Title I of the Communications Act.
The agency’s Republican Commissioners said that the declaratory ruling in WT docket 08-7 would ensure the continued ability of wireless providers to combat “spam robotexts,” which they said would be at risk if the FCC granted long-pending petitions to classify text messaging as a telecommunications service subject to common carrier regulation under Title II of the Act, given the requirements for nondiscriminatory provision of Title II services. They also argue that the information service classification is more legally sound. Moreover, Commissioner Mike O’Rielly looked forward toward the expansion of the information service classification to VoIP (voice over Internet protocol) and VoLTE.
Commissioner Rosenworcel and public interest critics of the action have argued that the declaratory ruling gives wireless carriers the ability to block, censor, throttle, or edit text messages.
The declaratory ruling rejects requests by Twilio, Inc., “and other mass-texting companies who seek to leverage the common carriage of Title II to stop wireless providers from helping consumers by incorporating robotext-blocking, anti-spoofing measures, and other anti-spam features into their offerings,” according to language in the draft version of the item released in late November (TR Daily, Nov. 26).
It also rejects a 2007 petition for declaratory ruling by Public Knowledge and other organizations to classify text messaging as Title II services or as Title I services subject to the nondiscrimination requirements in section 202 of the Act. Citing a September 2007 refusal by Verizon Communications, Inc., to issue a short code to NARAL Pro-Choice, the petitioners had said that a ruling on the regulatory classification of texting “is necessary to prevent wireless messaging providers from ‘refusing to provision a short code or otherwise blocking text messages because of the type of speech which will be engaged in, or because the party seeking service is a competitor,’” the draft item recalled (TR Daily, Nov. 26).
During his presentation of the item at today’s FCC meeting, Darrell Pae, an attorney adviser in the Competition and Infrastructure Policy Division of the FCC’s Wireless Telecommunications Bureau, said that “consumers don’t consider SMS and MMS as closely substitutable for voice services.”
In her dissenting statement, Commissioner Rosenworcel called the FCC’s explanation of the reasons for and the effects of the declaratory ruling “doublespeak.”
“We twist the law to reach the conclusion that you no longer have the final say on where your text messages go and what they say. That means your carrier now has the legal right to block your text messages and censor the very content of your messages. If that sounds familiar, it should. This agency did the same thing with internet service last year. That means on the one-year anniversary of the FCC’s misguided net neutrality decision — which gave your broadband provider the power to block websites and censor online content — this agency is celebrating by expanding those powers to also include your text messages,” she said.
Commissioner Rosenworcel said that the FCC’s argument that the declaratory ruling is “all about robocalls” is “dishonest. It’s irresponsible. Carriers are already fully empowered by this agency to protect consumers from unwanted junk text messages. The FCC has made this abundantly clear in prior rulings.”
She also criticized the ruling for ignoring the impact on roaming obligations and universal service contributions.
“Today’s decision is brought to you by the same agency that rolled back net neutrality rules and called it ‘restoring internet freedom.’ Today’s decision comes from the same agency that sought to take a broadband subsidy away from low-income individuals across the country and called it ‘bridging the digital divide for low-income consumers.’ Today’s decision comes from the same agency that decided to preempt the role of localities in wireless siting and called it ‘reaffirm[ing] local control over wireless infrastructure,’” Commissioner Rosenworcel said.
In his statement, Commissioner Mike O’Rielly said, “The classification of texting as an interstate information service is a policy decision for which I have long and vociferously advocated. Text messaging clearly meets that relevant statutory definition and does not fall within the definition of ‘telecommunications services’ or ‘commercial mobile services.’ Even in the last instance, text messaging applications are not interconnected, as only those with text-enabled mobile handsets receive these texts. Based on a straightforward statutory interpretation, text messaging should not be subject to common carrier treatment but ought to be rightfully treated as an information service.”
Commissioner O’Reilly added, “This action also allows providers to compete effectively with instant messaging services, including WhatsApp, Facebook Messenger, and others that dominate the market. In fact, one report asserts that over-the-top applications make up approximately 75 percent of all text messages. Of course, these apps are completely outside the purview of the Commission’s regulatory tentacles. Our action here clarifies that the text messaging services provided by wireless providers will be treated similarly.”
He continued, “I appreciate that today’s version of the order includes language about the long-standing national policy of not regulating information services, both in the economic and public utility sense, or if established by states. What this means is that the Commission will exert its preemption authority over states when necessary to ensure that the appropriate classification is properly recognized. Further, I am pleased that my colleagues agreed to add language to this item that successor technologies, with similar characteristics to SMS and MMS, including RCS, would be expected to be considered information services. The next-generation of texting services is on the near horizon, and without this statement, our action today would be out of date in the very near future.”
Commissioner O’Rielly added that he is “hopeful the Commission will also seek to expand this appropriate classification treatment to VoIP and VoLTE.”
In his statement, Commissioner Brendan Carr said, “Today, we take the commonsense step of clarifying that SMS and MMS text messaging services are, like WhatsApp, like Snapchat, like iMessage, not Title II telecommunications services. This is clearly the right answer as a matter of law and of policy, as we’ve heard from a broad cross-section of commenters: from state attorneys general, to consumer advocates like the American Consumer Institute, to non-partisan think tanks like the Free State Foundation. In fact, today’s decision marks no sea change. It simply codifies the status quo—one that has allowed innovative messaging services to launch and compete with one other to meet consumer demand.
“Yet, none of that — not the facts, not the law — none of that matters to those interested in the partisan politics of dissent,” Commissioner Carr continued. “Instead, they describe this decision as ‘radical’ and ‘Orwellian.’ But false and apocalyptic rhetoric is simply standard fare for this crowd. When Congress passed the broadband privacy CRA [Congress Review Act resolution], they told us that ISPs would start selling our web browsing histories. That claim was false then, and it is false now. When the FCC adopted our net neutrality decision last year, they told us that ISPs would have free reign to dictate our online experiences, ending the Internet as we know it. That claim was false then, and it’s false now. So when we confirm that SMS text messages, like WhatsApp messages, are not Title II telecommunications services, it is no surprise that these same groups trot out their ‘sky is falling’ rhetoric again. And it is no surprise that their claims will be proven false once again.”
Chairman Ajit Pai said, “If you receive a text message right now, chances are that you’re going to read it. In fact, statistics show that it’s a near-certainty: consumers open 98% of the Short Message Service, or SMS, messages they receive, and they open 90% of them almost immediately upon receipt. That’s numerical proof that Americans trust and rely on text messaging.
“One reason why is that wireless providers prevent large volumes of unwanted or malicious text traffic from reaching consumers’ phones. They do this by applying filters, blocking robotexts, and using anti-spoofing measures, among other things. They’ve been successful, considering that a mere 3% of SMS messages are spam,” the Chairman added.
“But some want the FCC to curtail these efforts to combat unwanted text messages. Specifically, they want the FCC to classify text-messaging as a telecommunications service under Title II of the Communications Act, which would open the floodgates to spam texts,” he said.
The decision to reject the petitions “is right on the law” and is “also sound policy,” Chairman Pai said. “The FCC shouldn’t make it easier for spammers and scammers to bombard consumers with unwanted texts. And we shouldn’t allow unwanted messages to plague wireless messaging services in the same way that unwanted robocalls flood voice services.”
The Chairman cited “overwhelming support” for the Commission’s decision “from unusually diverse quarters,” including a “bipartisan group of 20 state attorneys general from Connecticut to Idaho,” the National Organization of Black Elected Legislative Women, the National Organization of Black County Officials, the National Emergency Number Association, the National Association of Neighborhoods, the National Black Caucus of State Legislators, the American Enterprise Institute, Citizens Against Government Waste, and, “in what may be the most amazing statement of all,” petitioner Twilio, which “made clear that these changes ‘do not affect the analysis or conclusion reflected in the draft order.’ That one of the petitioners does not dispute our reasoning or results is pretty strong evidence that we’re on the right track,” Chairman Pai said.
Sen. Ed Markey (D., Mass.) criticized the action, as did Public Knowledge.
“The FCC has an obligation to promote competition and freedom of speech over our telecommunications networks,” said Sen. Markey. “With this action, the FCC stifling free speech by giving telephone carriers the freedom to block any text message they wish, potentially harming competition and our democracy values. Congress can right this wrong, which is why I intend to introduce legislation to rescind this order and establish appropriate safeguards to protect this vital means of communications.”
In a statement, Harold Feld, senior vice president at Public Knowledge, which had petitioned to have text messaging declared a Title II service, said, “No one should mistake today’s action as an effort to help consumers limit spam and robotexts. There is a reason why carriers are applauding while more than 20 consumer protection advocates — along with 10 Senators — have cried foul. This decision does nothing to curb spam, and is not needed to curb spam. It is simply the latest example of Chairman Pai’s radical agenda that puts companies ahead of consumers. We urge members of Congress to overturn this decision and ensure that wireless carriers cannot block or censor personal text messages.”
Otherwise, reaction from industry and public policy groups was generally positive.
Will Johnson, Verizon Communications, Inc.’s senior vice president–federal regulatory and legal affairs, said, “The FCC's decision to classify text messaging as an information service is the right one from both the technology and policy perspectives. This important action will ensure that consumers continue to enjoy this trusted platform, while giving providers the flexibility they need to aggressively fight spammers.”
Joan Marsh, AT&T, Inc.’s executive vice president–regulatory and state external affairs, said, “AT&T takes very seriously our commitment to protect consumers from unwanted text messages, and this is why we strongly support today’s declaratory ruling. This action empowers wireless providers to continue to protect consumers from spam and robotexts, while safeguarding legitimate texts.”
Ms. Marsh added, “As the industry upgrades from traditional SMS messaging to a more sophisticated protocol, AT&T is leading efforts to ensure the delivery of trusted traffic while minimizing inadvertent blocking. These efforts include the introduction of a ‘tagging’ pilot that assigns a trust level to certain traffic, adopting an AT&T Code of Conduct with simple rules and guidelines for pushing through legitimate traffic, creating feedback loops that provide timely information when spam issues arise, and developing a pilot False Positive Portal that enables the reporting of inappropriate blocking and provides a mechanism to request unblocking.”
CTIA Senior Vice President–regulatory affairs Scott Bergmann said, “We commend Chairman Pai and the FCC for protecting consumers from an avalanche of messaging spam and allowing them to continue to benefit from a flourishing and competitive messaging ecosystem.”
Free State Foundation President Randolph May said, “The FCC’s action definitively classifying wireless text messages as an ‘information service’ is overdue, so it’s especially welcome. It’s consistent with the law, and the classification reinforces the fact that the wireless providers possess flexibility to take actions to prevent unwanted spam. If they ever abuse this power, consumers have alternatives from which to choose.”
Roslyn Layton, visiting scholar at the American Enterprise Institute and international technology policy researcher, called the declaratory ruling “a much-needed cleanup of an issue left unresolved for more than a decade. Other countries don’t have the information and communications services distinction that the U.S. has, and this decision ensures Americans maximum enjoyment of texting services and protection from unwanted spam. Any harms that arise can be addressed by strong oversight from the Federal Trade Commission.”
Other parties issuing statements of support for the FCC’s action included text messaging service provider Zipwhip, Consumer Action for a Strong Economy, and the American Consumer Institute. —Lynn Stanton, [email protected]
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