Congratulations to Public Knowledge for leading the way (gathering together Consumer Federation of America, Consumers Union, EDUCAUSE, Free Press, Media Access Project and U.S. PIRG) and asking the question: Why should wireless carriers be permitted to discriminate in their allocation of short codes? Their filing is here.
It’s a clever piece of work, this filing, saying, in effect, “We think that short codes (and provision of text messaging services generally) should be treated as Title II, common carriage, services. But even if they’re not, you can apply the nondiscrimination obligations of Title II through your Title I authority.” (The filing also explains what short codes are; they’re handed out, essentially, by the wireless carriers’ trade association.)
Now, if you understand that last paragraph, you’ve probably studied U.S. communications law at some point in your life. But most people will have no idea whatsoever why this is significant, or why PK is talking about Titles at all. (What is this, real estate?)
The central thing to grasp here, with both hands, is that we have a strange legal structure in the U.S.: just as most of the interest, enthusiasm, and money has flowed to mobile wireless devices and the internet (and, soon, to mobile wireless devices accessing the internet, with any luck), the law has flowed *out* of that area. We don’t know what the nondiscrimination obligations are for wireless carriers and internet access providers. We suspect they’re minimal or non-existent, given one thing and another. And PK and others would like that situation to change – they’d like to see nondiscrimination requirements with teeth and meaning.
They have many good reasons for this. Nondiscrimination means capital can flow to new online/wireless devices and applications with some assurance that the carrier won’t be able to tweak things to favor its own business plans. Nondiscrimination means one point of view won’t be favored over another. Nondiscrimination means that carriers won’t be able to act as gatekeepers, deciding on winners and losers.
The big game here, the place this is all going, is the battle over access to the internet. We don’t have any statutory language making clear what “internet access” means – what it requires, what the limits are to “reasonable network management,” and all the rest. This PK petition is an incremental step – it’s asking for some definition of the limits to short code management in the wireless world. But that’s potentially a proxy for a larger move.
Content is not king online, as it turns out. Communication is. Raph Koster has a big recent presentation up on his blog telling the gaming world that their lunch is being eaten by the web. Everything’s flowing to the web. As Koster puts it:
the hot platform is the net
the hot audience is the non-gamer
the hot feature is other players
the hot technology is connectivity
the hot game is a mini-game
But the web world is under tremendous pressure in the US, as it is worldwide. No standardized definition of “internet access” in a place where there isn’t a lot of competition for access is leading to an awful lot of discretion and control being placed in the mitts of the carriers. Without a legal framework designed to fit this world, and without choices, all we’re left with is construing the carriers’ terms of service (!) and attempting to interpret a statute that makes as much sense as a law school exam hypothetical.
So here we are, giving way to the web world as a matter of practicality, and with only a patched-up, scruffy, hopeless statute to work with.
We need some creative leaps here, some ingenuity, some big merging of idea-spaces in a way that can be integrated with reality. (New favorite book: Smart World, by Richard Ogle.) We need a new administration and a new telecommunications law optimized on structural separation and the centrality of communication — rather than carriers’ revenues.
*Cross-posted from [Susan Crawford blog](http://scrawford.net/blog).*