Today, we filed a letter with the FCC detailing why text messaging – including those 5- and 6- digit phone numbers called “short codes” – is a Title II common carrier service. This is important because without such a classification, wireless carriers could decide who says what to whom through text messages, as well as who is allowed to use short codes to address those messages. The letter is a follow-up to our text messaging petition, in which we asked the Commission to step up and make sure that carriers can’t use their ownership of the phone system’s on-ramps to block speech they don’t like or services which compete with them as they have before and are doing today.
The crux of the argument is this: With the sole exception that wireless carriers feel entitled to pick and choose which speech should be allowed, text messaging looks just like voice calls and every other Title II service. They are advertised and offered to the public on standardized terms, and the carriers transmit what the customer tells them to, not their own content. This matches the legal definition of a common carrier service perfectly. And common carriers, by law, are not allowed to pick and choose who or what speech they carry.
The wireless carriers’ primary counterargument – that provisioning a short code is somehow a completely separate service from text messaging – is a red herring. A short code is simply a shorter phone number used for addressing text messages. No one denies that carriers can’t discriminate when they offer voice services, and it would be nonsensical to have this nondiscrimination rule but say that it’s still okay to refuse a phone number to someone you don’t like. Provisioning a phone number is part of the underlying voice service. Likewise, provisioning a short code is part of an underlying text messaging service. And carriers are not permitted to discriminate in any of these activities.