On Thursday afternoon (Jan. 31), the telephone industry will ascend Capitol Hill with yet another plea for unlimited freedom. In this case, Congressional staffers will hear from CTIA, the wireless trade group, about the awful, dreadful consequences of subjecting poor, understaffed and beleaguered companies like AT&T and Verizon to a little bit of government oversight.
That would be the AT&T that reported $3.1 billion in earnings and picked up a net 2.7 million wireless subscribers in the fourth quarter last year. According to AT&T, that increase is “highest quarterly subscriber increase ever for any U.S. wireless provider” and brings the company’s total to 70.1 million with some healthy returns to boot. That would be Verizon which reported a mere $1 billion in earnings for the quarter while adding 2 million wireless customers to bring its total to 65.7 million.
Those companies and their kin will present the case that they be spared from the indignities of “burdensome regulation” on their text-messaging services and short-code offerings. For companies of that size, it would have to be a pretty big burden to fall into the “burdensome” category.
On the other hand, some burdens are worth it. If, for example, anyone who worked at AT&T or Verizon who may have watched the TV show, “Law & Order” over the last dozen years or so would know that the proper response to a government request for surveillance is, “Show me the warrant.” Absent such warrant, you are on your own, and now we find the telephone companies have tied Congress up in knots, and themselves potentially liable for millions of dollars in damages. Complying with a little burden up front could eliminate a bigger one down the road. An industry as lawyered-up as the telephone business should know this. Perhaps they do but, in the worst case, chose to ignore it.
It’s also worth a little burden to protect freedom of speech, because that’s what at stake here. Verizon decided on its own that it shouldn’t issue a short code – an abbreviated number for text messages – to NARAL Pro Choice America. According to some semi-mythical policy, NARAL was considered too controversial. A couple of days later, Verizon reversed course. That showed, as Verizon advocates argue, “the market is working.” Of course, they omit the crucial step – the market only “works” if a story about the denial winds up on page one of the New York Times and gets picked up around the country. NARAL was left with the formula, “What Verizon takes away, Verizon can grant.”
That's not good enough. Private-industry discretion isn't a substitute for guarantees under law, “burdensome” or not.
By exercising its judgment, Verizon by its original decision denied NARAL members access to information they had asked to receive. It was that incident which led Public Knowledge, Free Press and others to file a petition asking the FCC to rule that text messaging and related short codes are protected from “unjust and unreasonable discrimination” just as traditional voice calls are. It’s not a stretch to look at the growth of texting to see how quickly it has become an integral part of our communications ecosystem. The technology doesn't matter, whether text messages are stored and forwarded or whether they are sent directly like telephone calls. We have enjoyed unfettered speech over telecommunications networks for decades, protected by law. It doesn't matter whether the telephone company is a big monopoly or a cable company. It doesn't matter whether the means of communications is wired or wireless, speech or text. We use networks the same.
Besides the free speech aspects, we can't forget the anticompetitive element of our petition and of the actions by telephone carriers. They blocked the services of Rebtel, depriving consumers of a choice of an innovative service.
Let's be clear that even with regulations in place, the telephone companies can still manage their networks. As Jef Pearlman wrote, a non-discrimination rule would not hinder a carrier's ability to fight spam. There is already a legal framework for dealing with junk calls, junk faxes and junk email. Customers would still retain control over what messages they receive.
The invitation to the staffers also noted that once upon a time, problems with texting hurt the European market once upon a time and they drew up some marketing policies to cope. It must have survived pretty well. According to a Feb. 1, 2001 news release from the GSM Association, “In the UK customers generated 756 million text messages in December 2000, representing a growth close to 300 percent on December 1999 figures, whilst Germany achieved a staggering 1.8 billion SMS messages during the month.” We can't see where it has slowed down much. Text messaging was launched commercially in the U.K. in 1995.
In the U.K., the telecoms industry had in place a regulation scheme, led by the Independent Committee for the Supervision of Standards of the Telephone Information Services (ICSTIS), which was set up in 1986 to help regulate what the British called the “premium telephone” business – pay-per call services.
The group, which changed its name to Phonepay Plus, can level some stiff penalties for violations in its jurisdiction. On one day, Jan. 23, 2008, the group levied fines of £74,000 against a total of seven companies and took a couple out of business for six months. Last September, they fined one company £250,000 for charging customers for calls to a contest the callers could not win. In October 2006, one texting company was fined £75,000 because it provided the texting support to another company's promotion and content.
Now that's what we call “burdensome regulation.” If the telephone companies want it, that's fine. But they still shouldn't be able to refuse to send messages they don't like.