This original filing is available in PDF
Format.

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

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

RM-_______

WT Docket No. 08-7

COMMENTS OF
Public Knowledge, Free Press, Consumer Federation of America,
Consumers Union, EDUCAUSE, Media Access Project, New America Foundation,
U.S. PIRG, Assemblyman Richard L. Brodsky, CREDO Mobile, INC.

Jeffrey Pearlman

Public Knowledge

1875 Connecticut Ave. NW

Suite 650

Washington, DC 20009

(202) 518-0020

jef@publicknowledge.org

March 14, 2008

COMMENTS OF PUBLIC KNOWLEDGE ET AL.

Public Knowledge et al. applaud the Commission’s decision
to seek public comment on the December 11, 2007 Petition (“the
Petition”) filed by Public Knowledge and a coalition of concerned
public interest organizations, short code service providers, and
legislators, in which we described how mobile carriers are engaging in
unjust and unreasonable discrimination in text messaging services, as
well as how this discrimination violates both the law and Commission
policy.¹

Text messaging is a critical new medium for speech whose growth is far
outpacing mobile voice calling. Mobile carriers cannot be allowed to
leverage their license to use the public’s airwaves in order to
control who may say what to whom. These carriers have demonstrated that,
given the chance, they will interfere with speech, and in fact continue
to do exactly that to this day.

In these comments, we will briefly highlight the point that text
messaging services that use short codes, like those that use traditional
10-digit phone numbers, are common carrier services governed by Title II,
and further develop the policy justifications for applying
nondiscrimination rules to text messaging through Title I and Title III.
We also reiterate our request that the commission declare that text
messaging services are subject to the section 202 prohibition against
“unjust and unreasonable discrimination,” regardless of
whether they are addressed using 10-digit phone numbers or short codes.

I. Introduction

In September 2007, NARAL Pro-Choice America rented a short code–a
5-digit telephone number employed purely for text messaging–to be
used in an opt-in text messaging campaign for its supporters. Verizon
Wireless (“Verizon”), however, refused to connect its
customers to NARAL, saying that it would refuse service to “any
organization that seeks to promote an agenda or distribute content that,
in its discretion, may be seen as controversial or unsavory to any of our
users.” After a front-page New York Times article, Verizon
reversed its decision, allowing NARAL to communicate with Verizon
customers. While it may appear at first glance that the problem has been
solved, Verizon still maintains that it is entitled to decide who its
customers could speak to, and about what, and while it claims to have a
new, less discriminatory short code policy, no policy, new or old, has
been released to the public as of this filing.²

And while NARAL is now connected to Verizon customers, three
carriers–Alltel, T-Mobile, and Verizon–all continue to refuse
connect a short code rented by Rebtel. Rebtel offers affordable long
distance and international phone calls by having two customers call local
numbers and connecting them seamlessly, behind the scenes, through the
Internet. When the carriers first began blocking Rebtel last year, they
specifically stated that they did so because Rebtel’s service
“cannibalizes” the carriers’ international rates, and
because those carriers do not, as a rule, allow their competitors to
communicate to their customers via short codes.³

We are at a crossroads with regards to new communications networks: will
the flow of speech be controlled by the citizens who use those networks,
or by the companies who run them? Chairman Martin recently contrasted the
issue here with the issue of Comcast blocking certain uses of its
network, suggesting that because Verizon backed off in this one case,
there is no longer a problem.⁴
But the problem is not solved, and the discrimination described in the
Petition is ongoing: three months later, speech is still being restricted
and innovation is still being stifled. And because any carrier can change
its policies at any time, the threat of new harms remains. The public
interest rationale for acting quickly to avert further harm is clear, and
so we ask the Commission to declare that carriers may not engage in
unjust and unreasonable discrimination in text messaging.

II. Text Messages and Short Codes are Title II Common Carrier Services
Subject to Nondiscrimination Rules

Text messaging services (also referred to as “SMS”),
including SMS services using short codes, are common carrier services
because they are offered to the public at large. As common carriers, the
providers of these services are governed by Title II of the
Communications Act, including section 202’s rule against
“unjust and unreasonable discrimination.”⁵

In 1975, the D.C. Circuit laid out the standard for identifying common
carriers.⁶ For the purposes of the
Communications Act, a common carrier is “any person engaged in
rendering communication service for hire to the
public.”⁷ The “critical
point [in invoking the common carrier concept] is the quasi-public
character of the activity involved… . What appears to be essential to
the quasi-public character implicit in the common carrier concept is that
the carrier undertakes to carry for all people
indifferently.”⁸

Whether or not a carrier is common is
determined by whether the service is offered to all, not whether it is
actually usable by all: “This does not mean a given carrier’s
services must practically be available to the entire public. One may be a
common carrier though the nature of the service rendered is sufficiently
specialized as to be of possible use to only a fraction of the total
population… . But a carrier will not be a common carrier where its
practice is to make individualized decisions, in particular cases,
whether and on what terms to deal. It is not necessary that a carrier be
required to serve all indiscriminately; it is enough that its practice
is, in fact, to do so.”⁹

Text messaging, both phone-to-phone and through short codes, fits cleanly
within these definitions of a common carrier. Phone-to-phone text
messaging is available to anyone who has a mobile phone and the ability
to pay for the service. In fact, like voice calls, phone-to-phone text
messages are already subject to common carrier roaming
requirements.¹⁰

While 10-digit phone numbers are obtained directly from the carriers,
common short codes (which are 5 or 6 digits long) have been made
available by those carriers through the Common Short Code Administration
(“CSCA”), which is a part of the Cellular Telecommunications
& Internet Association (“CTIA”).¹¹ The registry of Common Short Codes is
maintained by Neustar, which also keeps the number portability database
for 10-digit phone numbers.¹² The terms on which the CSCA rents short
codes are standardized with a boilerplate contract, and not through
individualized negotiations.¹³

Short codes are explicitly advertised to all: “The Common Short
Code market in the United States represents an exciting opportunity
foranyone, including media, entertainment, consumer packaged
goods, advertising, or technology companies to connect nearly 200 million
wireless subscribers to their goods and services using interactive
applications never before available in the wireless
industry.”¹⁴ In
fact, Verizon sent a letter to the Chair of the House Energy and Commerce
Committee shortly after the NARAL incident making exactly this point. In
Verizon’s own words, it “will provide ‘short
code’ text message services to any group that is delivering legal
content to customers who affirmatively indicate they desire to receive
that content.”¹⁵ This
is not language that contemplates “individualized decisions in
particular cases whether and on what terms to serve,” but which
holds short codes out as a service offered to the public as a whole.

The fact that it is primarily
organizations who sign up for short codes provides no shelter from common
carriage: “It is not an obstacle to common carrier status that
[companies] offer a service that may be of practical use to only a
fraction of the population, … . The key factor is that the operator
offer indiscriminate service to whatever public its service may legally
and practically be of use.”¹⁶ The carriers’ disclaimers reserving
the right not to serve someone¹⁷ likewise do not alter the fact
that these services are being offered to the public at large; as a
practical matter, they are being offered to everyone save the select few
who have been singled out for discrimination. And finally, no available
evidence suggests that the market demands and technical challenges of
providing these services are unique to text messaging or short codes, or
that they in any way negate the common carrier nature of those services.

III. Alternatively, Protection of Free Speech Requires the Commission to
Prohibit Unjust and Unreasonable Discrimination in Text Messaging Through
Title I or Title III

The Commission has been mandated by Congress to “make available, so
far as possible, to all the people of the United States, without
discrimination on the basis of race, color, religion, national origin, or
sex, a rapid, efficient, Nation-wide, and world-wide wire and radio
communication service.”¹⁸ This mandate provides both the
jurisdiction and the justification for applying nondiscrimination rules
to text messages and short codes.

The thread that binds all of these mandates and their justifications
together is speech. As Chairman Martin once observed, “Protecting
free and unfettered political and religious speech is critical to our
democracy.”¹⁹ All
text messages are speech, and should be afforded the maximum protection
possible, regardless of content. Speech in the United States is only as
free as the media on which it travels; in 2008, this means text
messaging.

A. The Commission Has The Power To Regulate Text Messaging Services
Through Title I and Title III

As discussed in the Petition,²⁰ the FCC has the power under Title I to
regulate text messages and short codes because it has subject matter
jurisdiction over them, and because ensuring nondiscriminatory access to
a new, important communications medium is reasonably ancillary to the
Commission’s mandate under section 1 of the Communications
Act.²¹ It also has the
authority under Title III to issue “‘such rules and
regulations and prescribe such restrictions and conditions, not
inconsistent with the law,’ as ‘public convenience, interest,
or necessity require.”²²

The Commission has already demonstrated this jurisdiction by extending
roaming obligations to text messaging services,²³ and in fact suggested that roaming,
including text messaging roaming, was a common carrier obligation subject
to section 202.²⁴ More importantly,
the Commission’s regulation of text message roaming demonstrates
that it has subject matter jurisdiction. Finally, the Commission’s
decision reflects the importance of ensuring nationwide access to text
services; regulations which promote such access are therefore both in the
public interest and ancillary to the effective performance of the
Commission’s responsibilities.

B. Text Messaging is a Critical New Communications Medium Which Demands
Nondiscriminatory Access

In the Petition, Public Knowledge et al. described how
unreasonable discrimination in text messaging services harms speech, is
anticompetitive, causes monetary harm, stifles innovation, affects the
public health, and visits especially powerful harm on deaf and disabled
users.²⁵ The avoidance of
these harms provides both the “public interest” mandate to
regulate²⁶ and the
“ancillary” link to the Commission’s goal of a
nationwide, efficient, nondiscriminatory network.²⁷ And beyond avoiding harms, making text
messages and short codes nondiscriminatory provides affirmative public
benefits which serve these roles as well. As the Commission and the
Supreme Court have observed, “[i]t has long been a basic tenet of
national communications policy that the ‘widest possible
dissemination of information from diverse and antagonistic sources is
essential to the welfare of the public.’”²⁸ Only by providing
nondiscriminatory access to short codes can this goal be achieved.

1. The World is Going Mobile

More and more, people are using their mobile devices as their primary
method to keep connected.²⁹ Mobile phones are becoming the device of
choice for keeping in touch with others, via voice, text, and
Internet.³⁰ One recent study
showed that the number of people using mobile broadband connections
jumped from 854,000 to 2.16 million–an increase of over
150%–between the end of 2006 and the end of 2007.³¹ SMS in the U.S. continues to grow, and
SMS-over-Internet services are allowing the growth of mobile Internet to
reinforce SMS growth rather than slow it.³² The world–and the U.S.–is
going mobile, and if mobile comes to mean discriminatory, then that is
what U.S. communications will come to mean as well.

2. Text Messaging Provides a Way for Small Speakers to Reach Large
Audiences

Right now, any organization which can afford $500/month can obtain a
short code,³³ although it may
still be subject to carrier discrimination. Big campaigns often start
small. But without the ability to start those small campaigns–at
least not without the approval of a part of the wireless
oligopoly–some speakers will never get their voices heard. Much as
the Internet has provided a method for small groups to broadcast to large
audiences as a whole, text messaging provides a method whereby small
organizations, who cannot afford armies of phone workers, can still reach
out directly to their constituents. Organizations large and small, and
from across the social and political spectrum are using short codes to
reach their supporters.³⁴ A nondiscrimination rule in short codes
will ensure that speakers of all types–not just those sanctioned by
the carriers–will be able to have their voices heard.

Conclusion

For the above reasons and the reasons described in the Petition, the
Commission should declare that mobile carriers are prohibited from
engaging in unjust and unreasonable discrimination in providing text
messaging services, including services utilizing short codes.

Respectfully Submitted,

• Public Knowledge
• Free Press
• Consumer Federation of America
• Consumers Union
• EDUCAUSE
• Media Access Project
• New America Foundation
• U.S. PIRG
• Assemblyman Richard L. Brodsky
• CREDO Mobile, Inc.

BY:

Jeffrey Pearlman

Public Knowledge

1875 Connecticut Ave. NW

Suite 650

Washington, DC 20009

(202) 518-0020

jef@publicknowledge.org

March 14, 2008

1 Public Knowledge, Free Press, Consumer
Federation of America, Consumers Union, EDUCAUSE, Media Access Project,
New America Foundation, U.S. PIRG, Petition for Declaratory Ruling, WT
Docket No. 08-7, Dec. 11, 2007, available at http://www.publicknowledge.org/pdf/text-message-petition-20071211.pdf
[hereinafter Petition]. These comments incorporate by reference
the Petition and all of the arguments and facts therein. For a
description of the parties, see Petition at 1-2; Addendum to
Petition, Dec. 21, 2007, available at http://www.publicknowledge.org/pdf/text-message-addendum-20071221.pdf;
Second Addendum to Petition, January 31, 2008, available at
http://www.publicknowledge.org/pdf/text-message-addendum-20080131.pdf.

2 See Petition at 3-5 and sources cited
therein. To our knowledge, no carrier has publicly disclosed the
policies that govern their text messaging services and short code
provisioning.

3 Id. at 5, 21-22 and sources cited
therein.

4 See Ted Hearn, Martin: Expect
Comcast Broadband Ruling Before July, Multichannel News (Mar. 7,
2008), available at http://www.multichannel.com/article/CA6539635.html?nid=4262.

5 See 47 U.S.C. § 202(a).

6 Nat’l Ass’n of Regulatory
Comm’rs v. F.C.C., 525 F.2d 630 (D.C. Cir. 1975) [hereinafter
NARUC I].

7 Id. at 640 (citing 47 C.F.R. §
21.1 (1974)).

8 Id. at 641 (internal quotation marks
omitted).

9 Id. at 641 (footnotes omitted).

10 In re Reexamination of Roaming Obligations
of Commercial Mobile Radio Service Providers, 22 F.C.C.R. 15817, 15837
(2007) [hereinafter Roaming Order].

11 See Common Short Code
Administration, About the CSCA, at http://www.usshortcodes.com/aboutCSCA.html.

12 See Neustar, Backgrounder
at 4, available at http://www.neustar.biz/info/backgrounder.pdf.

13 Common Short Code Administration,
Registrant Sublicense Agreement, at http://www.usshortcodes.com/csc_subLeaseAgree.html.

14 Common Short Code Administration, About
the CSCA, at http://www.usshortcodes.com/aboutCSCA.html
(emphasis added).

15 Letter from Lowell C. McAdam, Verizon
Wireless President and Chief Executive Officer, to the Honorable John D.
Dingell, Chairman, Committee on Energy and Commerce (Sept. 28, 2007).

16 NARUC I at 642.

17 Common Short Code Administration,
Registrant Sublicense Agreement, at http://www.usshortcodes.com/csc_subLeaseAgree.html
(“The Participating Carriers and other participating members of
the wireless telecommunications industry have appointed the CTIA –
The Wireless Association® (formerly Cellular Telecommunications
& Internet Association) (‘CTIA’) to serve as their
Common Short Code Administrator and CTIA, acting in that capacity, has
granted Registry a license to assign CSCs in the manner described in
this Agreement.’”).

18 See 47 U.S.C. § 151.

19 In re Rules and Regulations Implementing
Telephone Consumer Protection Act of 1991, Separate Statement of
Commissioner Kevin J. Martin, 17 F.C.C.R. 17459, 17508 (2002).

20 Petition at 16-18.

21 47 U.S.C. § 151. See id. at 16
(citing In re IP-Enabled Services Implementation of Sections 255 and
251(A)(2) of the Communications Act of 1934, 22 F.C.C.R. 11275,
11286 (2007) (quoting United States v. Southwestern Cable Co.,
392 U.S. 157, 177-78 (1968))).

22 Id. at 16 (citing Southwestern
Cable Co., 392 U.S. at 178 (quoting 47 U.S.C. § 303(r))).

23 Roaming Order at 15837. See
also Petition at 8-9.

24 See Roaming Order at 15818;
Petition at 8-9.

25 See Petition at 18-24. For example,
in the absence of a pronouncement that text messaging is a Title II
service or is otherwise subject to accessibility rules, it is unclear
whether carriers are subject to 47 U.S.C. § 255 and its
requirements that such a service is 1) “accessible to and usable by
individuals with disabilities, …”; and 2) “compatible with existing
peripheral devices or specialized customer premises equipment commonly
used by individuals with disabilities… .” applies to SMS. 47 U.S.C.
§ 255(c) & (d). Thus, a blind person could not ensure that she
would receive access to text messages through audio output or through
software that can be accessed by screen readers.

26 See 47 U.S.C. § 303(f)
(“[T]he Commission from time to time, as public convenience,
interest, or necessity requires shall … [m]ake such regulations not
inconsistent with law as it may deem necessary to … carry out the
provisions of [the] Act.”).

27 See 47 U.S.C. § 151.

28 In re Comcast Corp., 17 F.C.C.R.
23246, ¶ 27 (2002) (quoting Turner Broadcasting System, Inc. v.
FCC, 512 U.S. 622, 663 (1994)).

29 See, e.g., Barry Welford, The
Whole Is Going Mobile (describing studies showing mobile phone and
internet use rising compared to fixed services).

30 See, e.g., iPhone Features,
http://www.apple.com/iphone/features/.

31 See US Internet Users Going Mobile:
Study (Mar. 4, 2008), at http://www.physorg.com/news123871003.html.

32 See Om Malik, All Hail the
SMS (Aug. 26, 2007), at http://gigaom.com/2007/08/26/all-hail-the-sms/,
and references cited therein.

33 Common Short Code Administration,
Obtaining a CSC, at http://www.usshortcodes.com/csc_obtain_a_csc.html.

34 See, e.g., Republican National
Committee SMS Signup, at http://www.gop.com/Secure/smssignup.aspx;
Democratic Congressional Campaign Committee Mobile Action
Campaign, at http://www.dccc.org/#feature-2;
Focus on the Family, at https://www.dsofttechhosting.net/mobilephone/;
Human Rights Campaign, at http://www.hrcactioncenter.org/actioncenter/txtsignup.html;
Humane Society, at https://community.hsus.org/campaign/text_signup.
See also Mobile Commons Customers, at http://mcommons.com/customers.html;
Mobile Accord Clients, at http://mobileaccord.com/Clients.aspx.