In December 2007, Public Knowledge filed a Petition For Declaratory Ruling asking the Federal Communications Commission to clarify that both SMS text messaging and short codes are “Title II” telecommunications services. Put another way, we asked the FCC to reaffirm the basic statutory language that if you use telephones and the telephone network to send information from one telephone number to another, it meets the definition of “telecommunications service” (47 U.S.C. 153(53)).
We did this because earlier in 2007, Verizon had blocked NARAL from using its short code for political action alerts. While we thought there might be some question about short codes, it seemed pretty obvious from reading the statute that when you send “information between or among points of the user’s choosing, without change in the form or content as sent and received” (definition of “telecommunications”), over the phone network, using phone numbers, that it is a “telecommunications service.”
But apparently FCC Chairman Ajit Pai has other ideas.
On the anniversary of the repeal of net neutrality, Chairman Pai now proposes another goodie for carriers — classifying both short codes and text messages as a Title I “information service” rather than a Title II telecommunications service. As this is even more ridiculous than last year’s reclassification of broadband as Title I, the draft Order relies primarily on the false claim that classifying text messaging as Title I is an anti-robocall measure. As we have pointed out a bunch of times when the wireless carriers first raised this argument back in 2008, this is utter nonsense.
Email, the archetypal Title I information service, is (as Chairman Pai himself pointed out) chock full of spam. Furthermore, as Chairman Pai pointed out last month, the rise in robocalls to mobile phones has nothing to do with regulatory classification and is primarily due to the carriers not implementing existing technical fixes. (And, as the Wall Street Journal explained, robocallers have figured out how to get paid just for connecting to a live number whether or not you answer, which involves a kind of arbitrage that does not work for text messages.)
As if that were not enough, the FCC issued a declaratory ruling in 2015, reaffirmed in 2016, that carriers may block unwanted calls (read: robocalls) or texts despite being Title II common carriers. There is absolutely nothing, nada, zip, zero, that classifying text messages as Title II does that makes it harder to combat spam, because carriers are already empowered to prevent it.
By contrast, Title II does prevent a bunch of blocking of wanted text messages as an anticompetitive conduct which we have already seen (and which is occurring fairly regularly on a daily basis, based on the record in the relevant FCC proceeding (08-7)). This includes carriers blocking immigrant rights groups, health alerts, information about legal medical marijuana, and competing services. We should therefore treat the claims by industry and the FCC that only by classifying text messaging as “information services” can we save consumers from a rising tide of spam for what they are — self-serving nonsense designed to justify stripping away the few remaining enforceable consumer rights in the telecommunications space.
Beyond the obvious free expression and competition concerns, playing cutesy games with regulatory definitions will have a bunch of unintended consequences that the draft Order either shrugs off or fails to consider. Notably:
- Classifying texting as Title I will take revenue away from the Universal Service Fund (USF). This will further undermine funds to support closing the digital divide for rural communities, low-income communities, schools, libraries, and telemedicine.
- Classifying texting as Title I disrupts the current automatic roaming framework established by the FCC in 2007.
- Classifying texting as Title I may, ironically, take it out of the jurisdiction of the Robocall statute (Telephone Consumer Protection Act (TCPA) of 1991), thereby making it harder for the FCC to stop robocalls.
- Classifying texting as Title I trashes whatever consumer protections we have for text messages, and takes one more step to total administrative repeal of Title II. Which sounds like fun if you are a carrier, but leaves us little people operating without a safety net for our critical communications infrastructure (as I’ve been writing about for 10 years).
Some Quick Background:
Since Chairman Pai can’t simply come out and say, “I plan to do yet another favor for carriers,” and the go-to excuse about “deregulating to encourage investment” does not even pass the laugh test, he needs to make this about robocalls so he can pretend he’s helping consumers. That means providing a somewhat disingenuous and incomplete history to save political face.
As we’ve seen with past legal arguments from Chairman Pai, in this draft ruling he once again pretends that history begins in 2015 with a Petition to classify texting as Title II by a company called Twilio (Petition here and here; request for expedited treatment here). I’ll let Twilio defend itself, but suffice it to say that Chairman Pai’s effort to make Twilio into a nefarious spamming villain is about as accurate as his claim that this deregulation is about robocalls.
Our story actually starts back in 2007, when Verizon refused to honor NARAL’s short code and thus blocked NARAL from sending out political action alerts.
Wait, What Are Short Codes?
You can find background on SMS text messaging and short codes from this fact sheet and video we made back when we were first pushing this issue a decade ago. For purposes of understanding the FCC draft Order, SMS text messaging is specifically a form of text messaging that uses phone numbers and the phone network to send a short text message (although these days it can have links or other types of media attached or embedded).
“Short codes” are the 5-digit or 6-digit numbers that can substitute for a phone number, usually used by people trying to send and receive large numbers of text messages. Examples include charity and disaster relief organizations that use “text-to-donate” programs or TV shows like American Idol that let viewers vote.
Unlike phone numbers, you get short codes from CTIA, the wireless carrier trade association. As detailed in this court filing, getting a short code is insanely time consuming and expensive. But even when one has a short code, that doesn’t mean that all mobile carriers will acknowledge the short code. A short code holder must go to each carrier and complete their application process. Which brings us back to Verizon and NARAL in 2007.
Verizon Denies NARAL’s Short Code Request Because It Can:
NARAL completed the process of getting a short code and took it to the carriers to get the carriers to honor it. Someone at Verizon, however, decided that reproductive rights were too “controversial” to support. This Verizon short code approval person informed NARAL that its proposed use (communicating with their members about reproductive rights and calls to political action) violated Verizon’s texting policy and therefore Verizon would not honor NARAL’s short code.
NARAL, being a big-time political organization, did not take this quietly. A story promptly appeared in the New York Times, and within 24 hours of publication Verizon had reversed its decision, publicly apologized, and promised to make changes to prevent this sort of thing from happening again. (If this sounds familiar, it’s because it bears a remarkable resemblance to what happened with Verizon’s throttling of California firefighters. That’s the problem with letting companies make their own rules on blocking and throttling: The company gets to decide when and how to enact them.)
As always, industry was like, “look, problem solved; nothing to see here, move along.” But while this situation eventually worked out for NARAL, it does not work out for speakers too small to attract their own story in the media. Public Knowledge, joined by a number of other public interest organizations, filed a Petition in December 2007 asking the FCC to declare that SMS text messaging and short code use were Title II telecommunications services, or to use other authority to prevent carriers from blocking content. The FCC put the Petition out for public comment in January 2008, we had a comment cycle, and then we waited.
The Regulatory Process is Sometimes Slow, but Rarely Uneventful:
A couple of things delayed the FCC’s response to our Petition, chief among them the question of how to classify broadband services and the net neutrality fight. We tried multiple times to push the FCC to act on the texting Petition for several years. We had incidents where Sprint threatened to pull the plug on Catholic Services’ “text-to-donate” relief program for Haiti after the earthquake, then backtracked when that made the news. Similar incidents kept popping up, such as the refusal of some carriers to honor the short code for “Dreamer” advocates. We got lots of support from a fairly diverse group of civil rights groups, religious groups, and other non-profits, but the Chairman Genachowski-led FCC — which had a well-known aversion to action generally and Title II specifically — remained unmoved.
Things picked up again in 2014-15 when we and other net neutrality supporters pointed out that the experience with text messaging, which included multiple and ongoing issues of blocking and restrictions on innovation, demonstrated what would happen without a net neutrality rule for broadband. This brought attention back to text messaging, and a footnote in the FCC’s 2015 Open Internet Order promised to resolve the pending status of text messaging and short codes. That prompted Twilio to file its own Petition, prompting a bunch of other businesses and competing carriers to explain how the ongoing situation was hurting them and consumers generally.
Why Haven’t I Heard About This?
Most people have never heard of Twilio, or InBox Health, or CareMessage. So when these organizations run into problems, they don’t get stories in the media and they don’t get their problems solved. Consumers who sign up for services like these and experience problems with getting text messages they actually want have no idea why the service stopped working. (This is why even large companies that are dependent on text messaging and short codes like Zillow and FourSquare support classifying SMS and short codes as Title II telecommunications.)
But if you examine the record, you’ll find multiple examples of blocking behavior. From Textinteractions.com being arbitrarily classified as spam by Verizon to Twilio experiencing a significant increase in lawful-message blocking since Chairman Pai repealed net neutrality, it’s almost as if carriers have been emboldened to block text messages or deny short codes by a glaring lack of FCC action. (Twilio even notes that the financial incentive for this blocking is a matter of record, as 40 percent of CTIA’s 2015 revenue came from leasing and managing short codes.)
Chairman Pai is unmoved by such evidence. Unsurprisingly, the draft Order deals with them with a dismissive wave. ‘What? Carriers engaging in anticompetitive behavior, or just screwing up because they can? Preposterous!’ is the basic gist of Chairman Pai’s draft. Since it is impossible for it to happen, it simply isn’t happening. This is why, in the words of marketers having nothing whatsoever to do with the FCC or this proceeding, short codes are an expensive pain to get and use. But the advantage of an oligopoly — at least to the oligopolists — is that there aren’t a lot of alternatives.
Under Title II, carriers could not legally engage in this sort of blocking and all-around unjust and unreasonable behavior (to quote 47 U.S.C. 201(b)). Under Title I, carriers can do whatever they want. And you should be worried.
Image credit: Flickr user afagen