In the Matter of the Petition of
Public Knowledge et al.
for Declaratory Ruling Stating that Text Messaging and Short Codes are Title II Services or are Title I Services Subject to Section 202 Nondiscrimination Rules
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PETITION FOR DECLARATORY RULING
OF
PUBLIC KNOWLEDGE, FREE PRESS,
CONSUMER FEDERATION OF AMERICA, CONSUMERS UNION, EDUCAUSE, MEDIA ACCESS PROJECT, NEW AMERICA FOUNDATION, U.S. PIRG
Summary
Text messaging is rapidly becoming a major mode of speech in the United States, both as a replacement for and a complement to traditional voice communications.1 As part of the text messaging infrastructure, short codes are developing into an important tool for political and social outreach. Mobile carriers currently can and do arbitrarily decide what customers to serve and which speech to allow on text messages, refusing to serve those that they find controversial or that compete with the mobile carriers’ services. This type of discrimination would be unthinkable and illegal in the world of voice communications, and it should be so in the world of text messaging as well.
In September of 2007, Verizon refused to issue a short code to NARAL Pro- Choice America, an activist group which was seeking to keep its supporters up-to-date via text messages like similar organizations had done in the past. The incident was serious enough to prompt two United States Senators to send a letter to the Commission asking for a response to the incident2 and a front-page article in the New York Times.3
Less publicized, but perhaps just as significant, several wireless carriers refuse to provision text messaging services to companies that offer Voice over Internet Protocol (“VoIP”) phone calls in competition with the wireless carrier.4 Earlier this year, several carriers including Verizon and Alltel refused to carry short code messages for Rebtel, a telecommunications entrant offering service in over forty countries. Rebtel offers consumers the ability to make phone calls, including international calls, by using a local number and connecting to a VoIP network. The mobile carriers publicly admitted that they denied Rebtel’s request because Rebtel’s services competed with their own.
The wireless industry should not be permitted to make these discriminatory decisions. After the ensuing public outcry over its refusal to serve NARAL, Verizon Wireless reversed its decision as to NARAL, but retains a policy which has never been publicly detailed, and which may allow discrimination in providing text services. And while Verizon Wireless has sent a letter to Representative John Dingell stating that it will provide services to any group delivering legal content to those who have affirmatively requested it,5 it has the authority to change this policy at any time in the future. Furthermore, Verizon Wireless’ spokesperson more recently admitted that it refuses text services to companies that offer VoIP services, and other attempts to obtain short code service have been arbitrarily denied.
Discrimination in providing mobile services is contrary to the principles which have governed both wired and wireless carriers for decades. These practices violate the Title II obligations held by all carriers and are also contrary to the public interest, which Title I mandates the FCC to protect. Such discrimination restricts free speech, is anticompetitive, stifles innovation, and even affects public health. The problem is not theoretical, but is real and imminent, as it has already been demonstrated that carriers can and will specifically target one of the most important categories of free speech — encouraging political action — and will stifle innovative competitors.
The FCC should act immediately to declare that text messaging services, including those sent to and from short-codes, are governed by the anti-discrimination provisions of Title II of the Communications Act, and that discrimination is therefore prohibited in providing these services. If the Commission chooses not to find that text messaging services are governed by Title II, it should use its Title I ancillary jurisdiction to apply the nondiscrimination provisions of Title II to these services to ensure a robust and open communications infrastructure. In either case, the Commission should make it explicit that these discriminatory actions will not be tolerated in the future.
1 See, e.g., SMS Boom in the United States, Newsfox Press Distribution, June 13, 2005, available at http://www.newsfox.com/pte.mc?pte=050613047.
2 Byron L. Dorgan and Olympia J. Snowe, Letter to FCC Chairman Kevin J. Martin, Oct. 16, 2007.
3 Adam Liptak, Verizon Blocks Messages of Abortion Rights Group, New York Times, Sept. 27, 2007, available at http://www.nytimes.com/2007/09/27/us/27verizon.html.
4 Jeffrey Silva, VoIP Provider Denied Short-Code Access, RCR Wireless News, Nov. 2, 2007, available at http://rcrnews.com/apps/pbcs.dll/article?AID=/20071102/FREE/71102007/1002/FREE.
5 Letter from Lowell C. McAdam, Verizon Wireless President and Chief Executive Officer, to the Honorable John D. Dingell, Chairman, Committee on Energy and Commerce (September 28, 2007).
