Last week, the Federal Election Commission (FEC) released an advisory opinion clearing the way for campaign donations via text message. This is a positive step. However, the opinion raises some interesting questions about just how much control wireless carriers are going to have over which campaigns get to raise money via text message – and what happens when a candidate takes a policy position against the carriers.
Request for Political Text-to-Donate
At this point, text-to-donate campaigns are nothing new. In January 2010 Americans used text messages to donate over $30 million in support of Haitian earthquake relief. Since then, many organizations have embraced text message-based fundraising as an easy way to connect with supporters. However, concerns about federal campaign finance law have prevented political campaigns from participating.
In April of this year three companies involved in running text-to-donate campaigns, Red Blue T LLC, ArmourMedia, Inc., and m-Qube, Inc., requested permission from the FEC to offer text-to-donate services to political campaigns. After a comment period (which included comments in support from both the Obama and Romney campaigns, as well as Public Knowledge), on June 11 the FEC issued an advisory opinion that found the proposal in compliance with existing law.
Request for Further Clarification
The wireless carriers did not participate in the original comment and review of the text-to-donate request. However, on July 3 CTIA – the Wireless Association wrote to the FEC seeking clarification on a number of points. This began another comment period and, perhaps more importantly, further delayed the service going live.
Refusing Service to Candidates Who May Harm Wireless Carriers’ Brands
On August 13, CTIA wrote to suggest changes to a draft opinion circulated by the FEC. Specifically, CTIA requested that the FEC insert language that would allow the carriers to refuse service to any candidate who may harm the carriers’ brands:
“In addition, the wireless service providers may refuse to sell services to candidates who, based on the wireless service providers’ business judgments, espouse views that may harm the wireless service providers’ brands.”
“Alternatively, the wireless service providers may refuse to sell services to candidates who, based on the wireless service providers’ business judgments, espouse views that may harm the wireless service providers’ brands.”
“such as, but not limited to, projected volume of transactions, demonstrated approval ratings, or harm to the wireless service providers’ brands caused by a candidate’s views. According, the wireless service providers may establish commercial eligibility requirements.”
If implemented, this type of language would have given wireless carriers a text message kill switch to bring to any policy debate. Espousing views that “harm wireless service providers’ brands” is a fairly broad category and allowing carriers to cut off campaigns on the “wrong” side of these issues would give them incredible power over candidates. Remember, the American Red Cross and others raised $30 million in ten days for Haitian earthquake relief.
Complete carrier discretion over who can and cannot employ text-to-donate could be even more effective than campaign donations. Instead of attempting to influence policy by donating (or not donating) their own funds, carriers would be able to leverage other people’s donations in support of carrier policy priorities.
Oh, you oppose our shutting down a data center in your district? It would be a shame if your text message donations went dark two weeks before the election. Support net neutrality? Your opponent sure seems to be raising a lot of money via text message. So sorry that isn’t available to you. You know, net neutrality harms our brand.
The Final Rule: No Mention of Brand Harm, Can Protect Business Interests
Fortunately, the FEC’s final advisory opinion does not explicitly allow carriers to refuse service based on perceived brand harm. However, it does allow carriers to refuse service by measuring a campaign against carriers’ “own established business requirements.”
That is not as bad as it could be, but it is not exactly a rejection of the carriers’ request. The carriers are on record as wanting explicit permission to be able to shut down any candidate who espouses an opinion that carriers do not like. The FEC did not give it to them. But the FEC also did not make it clear that such a request was ridiculous.
Is This a Problem?
The FEC did not endorse a carrier kill switch, but its language does not prevent it either. The advisory opinion allows for discretion based on business requirements, and that can be read broadly. Since the CTIA’s proposed language was also couched in the language of “business judgment,” the flexibility it asked for explicitly is at least arguably implicitly granted. While the advisory opinion also makes mention of the development of “objective business criteria” to guide this decisionmaking, the wireless industry has a decidedly mixed record on policing itself.
The Real Solution
Of course, none of this would be relevant if the Federal Communications Commission (FCC) would act on Public Knowledge’s almost five-year-old petition to extend basic consumer protections to text messaging. No matter what the FEC says, the FCC prevents wireless carriers from evaluating the policy positions of individuals, organizations, and companies that get phone numbers for voice calling (skeptical? Despite advocating against the business practices of many carriers, Public Knowledge still has a phone number).
And while other companies that sell campaign services, like direct mail and polling firms, are free to pick and choose their clients, wireless carriers are different. That is why there is an entire federal agency to regulate them. Direct mail companies do not own the postal service used to ship postcards and fliers. If one turns down a campaign, another can step in and be confident that the postal service will still carry the mail. Similarly, polling firms do not own the telephone wires used to conduct the polls. If one polling firm says no, plenty of others can conduct a poll knowing that their phone calls will go through.
But if a carrier decides that it does not want to allow a campaign to raise money via text message, that is the end of the conversation. There is no way for you to start donating to a political campaign via text message without your wireless carrier’s permission.
Uncertainty Going Forward
We may never know if a wireless carrier decides to use control over text message donations in order to reward or punish a candidate because of the position that candidate takes on an issue. The problem is that even the threat could have a subtle influence on policy decisions, and those threats can be hard to track. That is why it is critical for the FCC to recognize that text messaging deserves the same protection as voice calling.
Today, no campaign worries that crossing a wireless carrier will result in its phone number being disconnected. Going forward, no campaign should have to worry that text message donations will end because of a policy disagreement.
Click here to tell the FCC to protect text messaging just like it protects voice phone calls.