Public Knowledge and more than a dozen other consumer and public interest groups have asked the FCC to reconsider its recent “SMS order,” which 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 who supported the action had 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 (TR Daily, Dec. 12, 2018).
Public Knowledge was among parties whose petitions for classifying text messaging under Title II — or Title I with nondiscrimination obligations — the FCC denied in its December order.
Public Knowledge and the other groups said that the FCC had not provided notice that it would “take the actions it did with respect to SMS messaging. “In the final order, in responding to ex partes filed after circulation of the draft order, the Commission has committed new legal errors. Petitioners therefore lacked the opportunity to respond to these errors in the record prior to this petition,” they said.
“If any communications service that has a buffer, or uses IP packets, or similar modern technologies instead of simply using a direct, dedicated line for a simple two-way communication is now to be considered a ‘store-and-forward’ service, then the Commission has simply written telecommunications services out of the law. Many voice services, for example, use similar techniques,” they added. “If this is the Commission’s goal it must say so, explain what gives it the authority to excise major parts of the Communications Act, and why it believes the broad, technologically-neutral definition of ‘telecommunications’ Congress provided it has such a short shelf life.”
They said that the order “fails to substantively address” arguments that Title II classification would not prevent providers from filtering robotexts, in light of the fact that the FCC has encouraged Title II telephony providers to block robocalls.
The petitioners also criticized the FCC for failing to address concerns raised in the record regarding the financial implications that Title I classification of texting will have for universal service programs.
They also said that media reports about the continued sale of location information by wireless carriers in the wake of the adoption of the order “confirm[s] the need for reconsideration.” With both Title I and Title II services being provided on mobile phones, it is unclear which regulatory regime applies to location information. “The Commission has failed to consider the effect of its classification decision on consumer privacy, and putting this petition out for comment would permit it to collect comment on this topic,” they said.
They also raised the possibility that carriers will take advantage of the FCC’s ruling to “make third-party services like Remind” — used by schools and teachers to communicate with students and parents “regardless of whether [they] have smartphones or featurephones, what carrier they subscribe to, home broadband, or even wireless coverage” — “untenable, or attempt to replicate some of their functionality in a carrier-specific and limited way.”
The petitioners also suggested that “practical” concerns argue for reconsideration, given that in its current form, the status of the order would come into question if the U.S. Court of Appeals for the District of Columbia Circuit overturns the agency’s 2017 restoring Internet freedom (RIF) order, given that the SMS order references without further discussion the RIF order’s analysis of the telecommunications management exception.
Joining Public Knowledge in the petition for reconsideration were Access Humboldt, Appalshop, the Benton Foundation, the California Center for Rural Policy at Humboldt State University, the Center for Democracy and Technology, the Center for Rural Strategies, Common Cause, the Consumer Federation of America, the Greenlining Institute, the Institute for Self-Reliance, the Kentucky Resources Council, the National Digital Inclusion Alliance, the New America Foundation’s Open Technology Institute, the Utility Reform Network (TURN), and X-Labs. —Lynn Stanton, [email protected]
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