Clearing the Air on the Text Messaging Petition
Clearing the Air on the Text Messaging Petition
Clearing the Air on the Text Messaging Petition

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    This Tuesday we filed a petition with the FCC asking them to clarify that it is unlawful for wireless carriers to engage in “unjust and unreasonable discrimination” in text messaging and short code services, just like it is in voice services.

    Since filing we've gotten a lot of feedback. A lot of the negative responses have been based around some misconceptions and misinformation, primarily about how a nondiscrimination rule might affect carriers' ability to block spam and other unwanted messages and about the types of services NARAL and Rebtel offer.

    I thought I'd take a minute to clear some things up.

    Some background: in the petition, we refer to two recent incidents in which wireless carriers blocked groups from communicating to the carrier's customers using a short code which is a 5- or 6-digit phone number used for text messaging. In one case, Verizon Wireless refused to provision a short code for NARAL Pro-Choice America because it was “controversial or unsavory” and their policy prohibited “issue-oriented . . . programs” from using the service. Although Verizon reversed its decision to block NARAL, it still maintains that it has the right to decide what text messages its customers receive. In the second incident, three carriers refused to provision a short code to Rebtel, who offers Voice over Internet Protocol (VoIP) services which allow customers to make inexpensive domestic and international phone calls. One carrier stated that it did not provision short codes to competitors, while another stated that Rebtel's service would “cannibalize” their international rates.

    Now, clearing the air:

    A nondiscrimination rule would not hinder carriers' ability to fight spam. No one likes text spam, just like no one likes voice spam, fax spam, or email spam. But they all have something in common beyond their lack of desirability, and that is a legal and regulatory framework which works to discourage the sending of spam and enables companies to keep it from getting to their customers. The rule our petition asks for is exactly the same rule that applies to voice carriers right now, and prohibits only “unjust and unreasonable discrimination.” Blocking spam does not fall into this category, and attempts by the wireless industry to claim that a nondiscrimination rule would result in a flood of spam are simply a smokescreen.

    Rebtel's service, which has been blocked by three carriers, is not advertising. Some carriers have attempted to justify their anticompetitive blocking of Rebtel by saying that they will not carry advertising for the competition. Simply put, Rebtel's service is not the same thing as unsolicited advertising. What actually happens is that when someone using Rebtel's service calls someone, often internationally, a text message is sent to that person with a local phone number he or she can call to be connected at a much lower per-minute rate. Text messages are only sent to you when someone is calling you; calling it an unsolicited text is like calling a phone call from your friend in Italy an “unsolicited phone ring.” Blocking Rebtel is not blocking advertising; it's stifling competition which would save the customers money if it were allowed.

    NARAL's campaign is entirely opt-in, and doesn't send unrequested messages. Several observers have expressed a concern that a nondiscrimination rule would result in a flood of unwanted text announcements from groups like NARAL – announcements which would cost them money to receive. NARAL says its campaign is opt-in, and that participants can unsubscribe at any time. NARAL's short code was explicitly blocked for being “controversial” and “issue-oriented,” not for sending unsolicited messages. Blocking NARAL was in no way justified by a desire to stop text messages which customers did not want, and as described above, existing ways of dealing with less scrupulous entities would remain available to carriers and customers alike.

    Customers would retain control of what messages they receive. Some worry that a rule saying carriers cannot engage in speech-based discrimination means that customers will be unable to do the same. Much like refusing to deliver spam, refusing to deliver a message which a customer has asked not to receive would be permitted by this regulation. As several people have point out, the cost of received text messages (like the cost of received mobile phone calls) is borne by the customer. The right to free speech does not include the right to be heard – Public Knowledge simply believes that the decision of what kinds of speech a customer hears should be left to the customer and not to their wireless carrier.

    In sum: wireless carriers are there to carry wireless communications, not to be the gatekeepers of speech in a growing medium.