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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
REPLY 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.
April 14, 2008
Summary
There is a real and ongoing problem in the U.S. communications network today. Those who control the entry points into the communications system want to be able to control who can speak to the public and what can be spoken about through the rapidly-growing medium of text messaging. Wireless carriers are currently openly engaging in discrimination against potential competitors, and claim the right to exercise editorial control over what their customers read and who they can communicate with. In response to this problem, Public Knowledge and a coalition of concerned public interest organizations, short code service providers, and legislators filed a petition asking the Commission to declare that text messaging services, including the provisioning and delivery of text messages addressed by short code, are subject to Title II nondiscrimination rules.
The Commission has recognized the importance of this issue and has sought the public’s comments. Since then, parties including communications companies, political campaigns, commercial text message service providers, public interest and advocacy organizations, and hundreds of individual citizens have filed comments supporting the petition and asking the Commission to protect text messaging.
In their own comments, the mobile carriers have tried to convince the Commission that there is no longer a problem, that the public is best served when carriers exert editorial control over the content that consumers receive, that the Commission lacks the authority to regulate text messaging services, and that the carriers’ First Amendment rights will be harmed if text messaging services must be provided in a nondiscriminatory way. These arguments are incorrect as a matter of law and policy.
First, the problem is real and current; carriers are discriminating against competitors and claiming the right to exert broad editorial control over text messages, especially those addressed to or from short codes. Second, as has been demonstrated with new communications media in the past, empowering consumers and ensuring the inability of the carriers to discriminate based on content is the best way to protect users both from unwanted communications and from the control of a small set of corporate interests. Third, as the Communications Act and case law demonstrate, the Commission is required by the law to apply the non-discrimination provisions of Title II to these services. Finally, it is the First Amendment rights of the users, not of the carriers, which should determine the direction in which our communications networks are developed.
The Commission should not accept the proposition that common carriers are allowed to decide what speech travels over the networks they operate. The FCC should recognize that text messaging services, including those addressed via short code, are offered openly to the public on standard terms, and are therefore nondiscriminatory common carrier services. The Commission should also recognize that these services qualify as interconnected mobile services, which are likewise subject to section 202 nondiscrimination rules. Finally, should the Commission decline to find that text messaging is a Title II service, it should use its Title I ancillary jurisdiction to apply those nondiscrimination rules to text messaging services.
REPLY COMMENTS OF PUBLIC KNOWLEDGE ET AL.
Public Knowledge et al. hereby submit these reply comments in the above-referenced docket.[1] These reply comments largely respond to the comments of wireless carriers arguing that the problem has already been solved, that nondiscrimination will prevent carriers from protecting consumers from unwanted speech, that the Commission does not have the power to ensure that text messaging services are nondiscriminatory, and that a nondiscrimination requirement will restrict carrier speech. For the reasons set out below, the Commission can and must act on this real, current problem and protect the rights of consumers by ensuring that text messages are not blocked and are subject to nondiscrimination rules.
Introduction
Public Knowledge et al. have petitioned the FCC to ensure that speech in a new communications system remains as free as the First Amendment promises and that competition is as robust as the FCC assures.[2] Public interest groups, communications companies, political campaigns, text message service providers, and over 200 individual citizens have submitted comments in support of the proposition that the owners of the onramps to modern communications systems should not have the right to choose who uses those systems and for what purpose. These comments also make it clear that the problems cause by carrier discrimination and raised in the petition are real and ongoing because carriers are still blocking services and claiming the right to block more.
The carriers would prefer that the Commission ignore the issue, arguing that because NARAL received its short code, there is no longer any problem. But this is simply untrue. Rebtel, an independent company which offers cost-effective VoIP[3]-based voice calling, continues to be unable to reach customers for those legal, opt-in, pro-consumer services. Carriers continue to assert that they should have the discretion to decide who can use short codes to address communications, including the ability to do so to further their own, individual corporate goals. The problem is ongoing, and the damage will continue to accrue until the Commission makes it clear that carriers cannot discriminate in providing these services.
In our petition, we pointed out that text messages, including those text messages that are addressed to or from short codes, are Commercial Mobile Radio Services (“CMRS”) subject to all Title II regulations including section 202’s prohibition against “unjust and unreasonable discrimination.”[4] We also argued that, should the Commission determine that text messages or short codes were Title I services instead, the public interest called for the application of those same nondiscrimination rules.[5] Finally, in our comments, we clarified that because carriers, through the Common Short Code Administration (“CSCA”), offer short codes to the public at large, text messaging addressed via short codes is a common carrier service which is subject to all of Title II’s regulations.[6]
Several incumbent carriers and a single ally of the carriers have raised concerns with the petition. All of these are unfounded, inaccurate, or solvable. None of them justifies giving carriers the right to refuse to serve individual parties or to arbitrarily censor text messages, be they sent to or from 10-digit numbers from cell phones or to or from a short code campaign. In these reply comments, we will make several points responding directly to comments filed in this docket: First, discrimination in text messaging services is a continuing problem, with carriers openly engaging in anticompetitive blocking of services and claiming the right to refuse to serve others. Second, consumers will still be protected from unwanted messages in a nondiscriminatory system. Third, the law requires and empowers the Commission to apply nondiscrimination to text messages, including those using Common Short Codes (“CSCs”). And finally, allowing discrimination in text messages is a far greater First Amendment concern for citizens than it is for carriers.
I. Understanding Text Messages and Short Codes
Essential to understanding the petition and comments is both a technical understanding and a real-world understanding of the services at issue. While some commenters criticize the petition for overlooking technical differences between Short Message Services (“SMS”) and short code services, in fact those commenters’ description of the technology confirm that the petition was exactly correct.[7] To clarify matters, we will describe the terminology used including the differences between the services which are discussed in this docket, and highlight the actual, varied uses that citizens are making of text messages in the marketplace.
A. Short Codes Are a Type of Address Used to Send Text Messages
Text messaging, or SMS, is the overarching service by which short, 160-character messages are sent from one point to another. SMS can also be used to send binary data, including pictures and ringtones. SMS messages can be sent to or from traditional 10-digit North American Numbering Plan (“NANP”) phone numbers, but can also be addressed using shorter numbers or “short codes.” The 5- and 6-digit variations of these short codes are called “Common Short Codes” and are rented to the public by the Common Short Code Administration. Short codes generally are not used to deliver messages from one phone to another, but to send messages between a phone and a network-based service like NARAL’s.
Some parties have attempted to confuse the Commission with technological explanations that are not relevant to the legal characterization of the service provided to the consumer. For instance, the providers attempt to distinguish between text messaging and common short codes as two separate services.[8] They try to explain that SMS involves the storing and forwarding of messages, while common short codes are used to route messages and to provide billing and collection for those messages.[9] The providers’ efforts to separate these activities into two “services” is analogous to saying that carrying a voice phone call is a totally separate service from the provision of telephone numbers. In the context of voice telephone services, a telephone number is used to route a voice phone call to its intended destination, and it is also used to provide billing and collection. Even though there are technically several functions involved in providing telephone services, these functions are all part and parcel of providing voice common carriage service. Just like telephone numbers and voice calls, short codes are used to route and bill for the provision of text messages. These functions work together to provide the customer the experience of receiving a message sent from one user to another and to ensure that the appropriate party is billed for this service. There is nothing to distinguish the combination of SMS and CSCs from the prototypical voice common carrier service.[10]
Messages passing in either direction between phones utilizing NANP numbers and systems using short codes are all common carrier SMS services. Our petition has addressed text messages addressed to both NANP numbers (phone-to-phone text messages) and short codes, and has asked that the Commission clarify that both are subject to nondiscrimination rules.[11]
It appears that carriers are already complying with the nondiscrimination rules regarding phone-to-phone text messages. MetroPCS agrees with petitioners that “the Commission should now clarify that [non-short-code] SMS services are CMRS services for all regulatory purposes.”[12] CTIA asserts that carriers do not block any such messages, suggesting that a nondiscrimination rule would not change the status quo significantly.[13] Verizon states that “Carriers Do Not Block SMS Between Two Wireless Consumers.”[14] In other words, carriers are already acting as common carriers for these services. Since they are already providing nondiscriminatory phone-to-phone text messaging services, there is little reason not to recognize their Title II common carrier status.[15] For this reason, our reply comments will concentrate on the arguments surrounding text messages sent via the common short codes which are offered to the public, rather than phone-to-phone SMS.
We do, however, wish to make clear the distinction between standard rate text messages and premium short text messages-two separate services whose differences have sometimes been blurred by the carriers when convenient. When a standard rate message is sent to a customer, that customer pays only the normal amount (if any) that he or she pays when receiving a text message from any source. When a message is sent with premium content, the consumer is charged an additional amount, either as a subscription fee or a one-time charge.[16] Some of the premium fee is paid to the carrier, and some is paid to the content provider; the billing for these premium charges is handled by the carrier.[17]
Because premium short codes were not involved in the NARAL incident or the ongoing Rebtel situation, the petition is primarily concerned with standard rate short codes. Similar legal and policy arguments do apply to short codes offering premium services, which are also protected speech (though commercial in nature), and so, if necessary, the issue of premium short codes could be addressed in a future proceeding. Many of the counterarguments put forth by the carriers, such as those regarding unwanted charges, are relevant only to premium short codes, and should be considered in that light.[18]
B. Americans Use Short Codes for Widely Diverse of Political, Religious, Governmental, Educational, and Commercial Purposes
To understand fully the petition and the comments filed in this docket, it is necessary to understand how text messages, and specifically Common Short Codes, are being used today. All parties agree that there is extremely rapid growth in the use of text messaging in the United States.[19] The types of communications which are carried over short codes are as varied as speech itself. In our petition, we described how short codes are being used to distribute health information, communicate questions to political candidates, gather petition signatures on issues of public concern, provide consumers with information on corporations’ environmental impact, and enable citizens to contact their legislators on important political issues.[20] In our comments, we observed that organizations of all sizes and from across the political spectrum, from the Republic National Committee to the Democratic Congressional Campaign Committee and from Focus on the Family to the Human Rights Campaign, use text messaging addressed via short codes to keep in touch with their supporters.[21]
The list of ways people are using short codes continues to grow. Mobile Verses will send a Bible verse to your phone daily.[22] The National Association of Realtors, which filed comments in this proceeding, relies on short codes to provide services both to Realtors and to real estate consumers.[23] Short codes can be used for direct, person-to-person communication as well. Users of the AOL Instant Messenger service can both send messages to and receive messages from phones via a short code.[24] Any Twitter user can keep in touch with friends by texting personal up-to-the-minute updates to Twitter; those updates are retransmitted to all their interested friends, who can receive them on their phones-all using Twitter’s short code.[25]
Public safety is also making extensive use of text messaging via short codes. Numerous educational institutions and local governments offer text-based security alerts through short codes.[26] The FCC recently issued an order approving a plan to make a nationwide emergency alert system, to be delivered via text messages.[27] And the nationwide AMBER Alert system for reporting child abductions already utilizes short codes for subscribing to and transmitting AMBER alerts to local concerned citizens.[28]
These comments cannot possibly list all of the uses which Americans make of short codes, and so we have attached the list of short code campaigns which is publicly available from the CSCA’s web site.[29] Note that the 522 services listed in Attachment A-which include the political parties, newspapers, candidates, religious groups, governmental bodies, social networking services, sports teams, radio stations, hobbyist organizations, and more-are just the campaigns that have affirmatively taken action to be listed: they represent only “a subset of those registered with the Common Short Code Administration.”[30] Finally, the carriers’ attempts to pigeonhole short codes as commercial advertising services are belied by their own description of just how varied those services are; Verizon’s comments point out that those offering short code services include political candidates, weather alerts, directory services, and issue advocacy campaigns.[31]
II. Blocking of Text Messages is a Real and Ongoing Problem
The carriers have suggested that because Verizon provisioned NARAL’s short code, and because Rebtel is a competitor, that there is no longer a problem, and a nondiscrimination rule is unnecessary. The facts, however, do not support this conclusion. Verizon has never released its new or old discrimination policies, and still wants to reserve the right to block the next speaker that does not fit Verizon’s unstated policies as long as there is not enough public outcry to make it an unsound financial choice. At least three carriers are still openly blocking Rebtel solely because they do not want to carry the communications of a competitor. There is no competition to restrain this behavior in the relevant short code provisioning markets, and the competition in the consumer market is simply insufficient to do so. These problems are still alive, and will remain so until the Commission declares that discrimination is unlawful and unacceptable.
A. Carriers are Still Openly Discriminating
In their comments responding to the petition, the carriers largely glossed over the continuing refusal of several carriers to connect Rebtel to their customers.[32] The U.S. Chamber of Commerce, for example, says that the “NARAL incident was actually a case of the market working,” and fails to mention the blocking of Rebtel entirely.[33] T-Mobile is similarly “confident that the market will force providers to respond to their customers’ wishes, just as Verizon Wireless did in response to the NARAL incident,” again ignoring the evidence of market failure and anticompetitive behavior by carriers.[34]
MetroPCS’s only response to the issue is not to contest the nature of the problem, but to make the irrelevant point that “no VoIP service provider that was the alleged target of such a practice is a party to the Petition.” And while it is true that Rebtel is not a party to the petition, there is no requirement that it become one; petitioners believe that Rebtel’s filing of extensive comments supporting the petition and detailing their treatment by the carriers speaks for itself.[35]
Verizon suggests that Rebtel is attempting to advertise to their customers, and therefore carriers are entitled to discriminate against Rebtel.[36] This argument fails both factually and legally. First, Rebtel is not advertising; as Rebtel describes in detail in its comments,[37] it is actually offering a service which is enabled through a text message which informs the user how to connect to the person attempting to call them. It is no more advertising than it would be for one person to text a friend asking the friend to call them on a given phone number. Second, and perhaps more importantly, as a common carrier Verizon is obligated to carry all speech, even if that speech is commercial advertising for a competitor. If AT&T makes a legal phone call to a Verizon customer to advertise AT&T’s service, Verizon cannot block that call;[38] the same is and should be true in text messages, regardless of how those messages are addressed.
Finally, AT&T has suggested that somehow Congress’s decision to not force wireless carriers to provide customers with “equal access” (i.e., nondiscriminatory access) to other long distance providers, as wireline operators must, demonstrates that wireless providers should not be bound by any nondiscrimination rules.[39] This is a non-sequitur. Forcing local carriers to provide their customers with access to other toll carriers-which is what section 332 exempts commercial mobile service providers from-is completely different from the duty to serve consumers and competitors as a common carrier.
B. Allowing NARAL to Speak Did Not Solve a Systemic Discrimination Problem
The carriers comments suggest that the market is working and that there is no longer a problem because they responded quickly to a front-page New York Times article. Companies such as Rebtel, which offers opt-in, pro-consumer international calling services, and which are still blocked by carriers, disagree because their businesses are currently and openly being stifled by carriers’ anticompetitive behavior.[40] But even if Rebtel were to be provisioned tomorrow, the problem would not be solved.
Verizon and the other carriers still have not made public any policies they use to decide who may or may not use their networks. And even were they to do so, individual carrier policies can be changed. Carriers continue to vigorously assert their right to continue to discriminate in the future, restricted only by the extent to which those who are discriminated against can hurt the carriers’ public image.
Here we have a problem which is clearly real and current, and which demonstrates that existing competition and public oversight are insufficient to solve it. This is a situation which has repeated itself throughout the development of our nation’s communications networks: a new communications medium is rising, and those who own the medium are attempting to maintain control of the message. The Commission’s response should once more be to ensure that the medium is open, to declare that a common carrier cannot discriminate against speakers, and to let democratic processes rather than gatekeeper corporations solve any difficulties which arise.
C. There is Insufficient Competition to Protect Consumers from Abuse
Carriers argue that the competition in the wireless market is sufficient to prevent abusive discrimination, but experience demonstrates otherwise. And while it is easy to conflate them, there are three distinct markets at issue, none of which solves the problem: the market for renting short codes has no competition at all; the market for provisioning a short code so that a campaign can reach a given consumer is a monopoly as well; and the consumer market has insufficient choice to curb abuses.
1. There is No Competition in the Market for Renting Short Codes
The market as viewed by short code service providers is a market of one. They can only rent a Common Short Code from the CSCA, which is a part of the trade group belonging to all of the major wireless carriers.[41] There is nowhere else for a service provider to go: if it cannot rent a short code from the CSCA, it cannot rent one from anyone in the United States. And 10-digit phone numbers are not a substitute for CSC services because service providers lose the benefits of ease-of-use of a shorter number, cannot compete with those services (such as the carriers own) which are not blocked, and because long codes lack the technical and billing requirements offered by short codes.[42]
2. There is a Termination Monopoly for Reaching Consumers
Even if a group or individual seeking to provide short code-based services successfully rents one from the CSCA, each individual carrier can restrict the possessor of that short code from communicating with that carrier’s customers by refusing to provision that code. Arguments that there is competition between carriers at the provision level are unavailing-to reach a particular customer, a short code service has only one option: that customer’s carrier. Each carrier has a termination monopoly on its customers, with the largest two carriers covering half the market.[43] Should that carrier refuse, there is no alternate route, and therefore no meaningful competition.
3. There is Insufficient Competition in the Consumer Market to Prevent Unjust and Unreasonable Discrimination
The competition that exists in the consumer market is insufficient to curb any abuses. As the Open Internet Coalition pointed out in its comments, Competition has actually shrunk in the wireless market.[44] In measuring market concentration, the Department of Justice describes a Herfindahl-Hirschman Index (“HHI”) of above 1800 as “highly concentrated;”[45] according to the Commission, as of 2006, the average weighted HHI value in the wireless industry was 2674.[46] Two carriers now account for over half of wireless customers, and these same carriers provide not just text services, but voice services, video, Internet, and a host of other options which provide incentives to keep communications channels to customers as free from competition as possible.
Further, where, as here, all “competitors” in a market share similar goals, a choice of several carriers will not be enough to restrain anticompetitive behavior. There need be no stronger demonstration of this failure of an oligopoly to curb abuses than Rebtel. Because most carriers have the same interest in preventing consumer access to alternative, cost-effective telecommunications services, they have the incentive to collectively stifle competition rather than allow it. This is exemplified by the fact that Rebtel is still blocked by three major carriers.
Unfortunately, there are often not enough competitors and not enough informed consumers to constrain this collective behavior. While a national non-profit organization like NARAL may be able to get a front-page New York Times article in order to force a carrier’s hand when it starts restricting speech, smaller speakers like Rebtel with less political clout and fewer connections cannot. The fact that someone who wants to make legal use of a communications network is unable to get large numbers of people to switch carriers in a market with so few competitors does not make their speech any less important or deserving of protection. Yet these speakers currently lack a clear statement that they are so protected. Because the existence of some minimal competition is insufficient to protect speech to the extent necessary, the Commission must act to do so.
III. Nondiscrimination Requirements for Carriers Will Protect Consumers
In their comments, carriers argued that consumers benefit from the carriers’ policing of their networks to restrict access to legal content because they are less likely to receive pornography or unsolicited advertisements. They further argue that, should the FCC find that nondiscrimination rules apply to text messages and CSCs, that users will be flooded with unwanted messages, and that there will be no way to remedy the situation. Finally, they argue that despite their deliberate restriction of speech, there is no problem, and that competition between carriers will be sufficient to curtail any abuses. The evidence, however, demonstrates that all three assertions are incorrect.
As a threshold matter, arguments about the quality of the editorial control used by carriers put the cart before the horse: the ability to exert editorial control is a consequence of not being a common carrier, not the source of the ability to evade common carrier requirements. Because, as described in our petition and comments, providers of text messaging and short code services are common carriers, they are not allowed to engage in value judgments about content, regardless of how well or badly their values comport with the values of their consumers. Only users are allowed to do so. And to the extent that the quality of editorial control exercised and the ability of the market to control it are relevant to the Commission’s inquiry into where the public interest lies, the evidence demonstrates that carrier control is a poor substitute for actual free speech.
A. Nondiscrimination Requirements With Consumer Control Will Protect Users from Third-Party Abuses
Carriers attempt to scare the Commission away from applying nondiscrimination rules to text messages with warnings of unrestrained spam, pornography, and fraud.[47] The reality is that users can still be protected from unwanted messages by enabling those users to make the final decision about what speech to hear.
Section 202 of the Communications Act restricts only “unjust and unreasonable discrimination.”[48] Enabling customers’ ability to determine which messages they do and do not receive does not fall within this prohibition, and so carriers should ensure that consumers have the final say in what speech they receive. The First Amendment guarantees the right to speak, but allows others to choose whether to listen or not listen to certain speech. Thus, carriers could implement ways for users to determine themselves what speech they do and do not want, rather than letting the carriers decide for them.
If consumers wish not to receive certain messages, there are numerous ways to achieve that goal without giving carriers complete control. Phones can employ software that allows wireless customers to block unwanted messages. Users could opt-in to message blocking services which disallow certain types of messages, or specifically request not to receive messages from some sources. Although the service is not described in detail, Verizon suggests that carriers already perform this function, as it claims not to block message to its subscribers “except for those text messages that are captured by its spam filters, or those messages for which the subscriber has imposed an affirmative text message block.”[49] Sprint also explains that they will block or filter messages when “the customer requests such blocking or filtering.”[50] Customer-requested blocking is already a part of carriers’ networks, and does not require carriers to engage in unreasonable discrimination. Third parties are already offering software for phones which will allow parents to block text messages with unwanted keywords from reaching their children.[51] And as discussed below, regulations could require that users opt in to short code services before they are contacted.
T-Mobile suggests in its comments that to the extent that the Commission decides to apply section 202 to text messages, it should consider explicitly declaring ex ante that certain kinds of discrimination would be just and reasonable.[52] This should be unnecessary: if carriers empower consumers to have the final say in what is received, and do not block messages based on their own value judgments, then there will be no need for the Commission to make individualized determinations of reasonableness before a problem arises.
B. Nondiscrimination Will Protect Consumers from Carrier Abuses
Speech on all of the nation’s communications networks should be as free as the law allows. Mobile carriers which filed comments have explained that they want to restrict legal, even consumer-requested speech.[53] The key contention appears to be that only carriers are properly equipped to safeguard consumers from what the carriers believe are unwanted or undesirable messages, including-as defined by those same carriers-short code campaigns which were “embarrassing,” or “counter to the brand image of the mobile network on which the campaign appears.”[54] Said another way, only Verizon can protect consumers from free speech; without that protection, consumers might see something Verizon did not like. This is exactly the type of behavior that this petition seeks to prevent.
The implications of this kind of carrier discretion are staggering. For instance, consistent with the goals quoted above, Verizon could block a consumer watchdog group critical of Verizon’s text messaging policies, or AT&T could fail to deliver a New York Post article which criticized its censorship of a concert broadcast on its Internet services.[55] Citizens are already using short codes for important purposes that are unlikely to comport with the interest of carriers. For instance, the Communications Workers of America and ver.di, Germany’s largest union, recently started a campaign to support T-Mobile employees who sought collective bargaining rights in the U.S., complete with a short code campaign to provide information to interested parties.[56] Would it be acceptable for T-Mobile to refuse to provision this short code to its customers? Carriers should not be allowed to determine what speech is acceptable and what is not, especially when they explicitly wish to use that power to curb speech which might be critical of or against their political interests.
As discussed above, there are numerous ways for the consumer to retain control of what messages they receive. But when carriers make the decisions regarding what speech to carry, consumers lose the ability to choose what legal speech they will receive.[57]
C. Common Carrier Regulations Protect Users Beyond Nondiscrimination
Although our petition and comments concentrate primarily on the role of nondiscrimination in a common carrier network, it is important to recognize that common carrier status includes other measures designed to protect consumers and improve citizens’ access to our communications infrastructure. For instance, as described in the reply comments of the American Foundation for the Blind (“AFB”),[58] section 255 of the Communications Act requires that “[a] provider of telecommunications service shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable.”[59] This provision protects users who would otherwise be entirely denied access to this new, rapidly growing medium. Petitioners endorse the reply comments to be filed by the AFB, which will demonstrate another way in which recognition of the common carrier status of text messaging providers will protect consumers.
D. If Further Consumer Protection is Necessary, it is the Role of the Commission to Provide It
Some carriers have argued that the FCC does not have the ability or the power to formulate rules that will pass First Amendment muster and still protect consumers without a congressional mandate. Carriers suggest that existing regulations are insufficient to protect consumers from unwanted messages, and that the Commission and Congress will be unable to meet the challenge of doing so. History tells us differently.
Cases cited by CTIA demonstrate only that the FCC is constrained by the First Amendment, not that it is unable to effectively regulate within those constraints.[60] For instance, as CTIA notes, the Second Circuit’s entire discussion of the FCC’s indecency test was dicta, and the case was decided on “arbitrary and capricious” grounds. [61] The discussion was not of the FCC’s authority on the whole, but of one specific new regulation which represented a significant departure form previous rules.[62] Also, the case has since been taken up by the U.S. Supreme Court, casting doubt on its value.[63] And as the CTIA recognizes, the Supreme Court has held that the Commission may regulate otherwise legal, non-obscene speech without running afoul of the First Amendment.[64]
As discussed below, courts have consistently upheld the Commission’s and Congress ability to “assure that the widest possible diversity of information sources are made available to the public”[65] by ensuring that network providers such as cable operators carry local broadcasts, public, educational, and government channels, and channels owned by unaffiliated commercial entities.[66] Like cable operators, mobile carriers deliver information from diverse sources and independent providers of information. The cable experience demonstrates that the Commission may regulate in a way that forces network operators-even those like cable, who are not common carriers-to deliver information from competing sources, precisely because of the possibility that they “might deny access to programmers if the operators disapproved the programmer’s social or political viewpoint, or if the programmers’ offerings competed with those the operators were providing.”[67] That is exactly what mobile carriers are doing here, and what they argue that the First Amendment protects their ability to do. Fortunately for consumers, the law confirms the Commission’s ability to prevent this behavior.
We do not deny that regulating in the area of speech is difficult, and should be approached with care. This is for good reason — protecting citizens’ speech rights is important, and must be done in a manner which is as minimally invasive as possible; indeed, case law requires the government, even in the presence of a compelling state interest, to employ the least restrictive means possible to protect that interest if it restricts indecent speech.[68] However, giving carriers unfettered discretion is no substitute for careful regulation by those who have a constitutional mandate rather than an uncertain market to constrain them.
And while CTIA’s description of the history of regulating 900 numbers[69] is informative, and highlights the admitted complexity in regulating speech over commercial communications systems, it also highlights the fact that both the Commission and Congress do not leave the decision as to what speech should be allowed in the hands of the carriers. Further, to the extent that the Commission should take anything from their decision not to require carriers to provide billing and collection services to 900 numbers,[70] it is that those carriers were still required to provide a phone number and route calls to those services.[71]
To the extent that there are messages that could pose problems for consumers, it is the role of Commission, as empowered by Congress, to seek remedies. It is important to recognize that none of the existing consumer protection regimes gives communications carriers the discretion to choose what types of speech are allowed on the networks: all speech must be carried unless the law provides otherwise.[72] There is no good reason to treat text messages or short codes as qualitatively different than other communications media. The default is always that speech is free and as unfettered as possible, and that lawmakers step in only when this freedom becomes actually—not theoretically—problematic for consumers. As CTIA has recognized, short codes, much like 900 numbers, are “merely an address.”[73] Billing and collection services are only an issue for premium short codes which are a better (though not perfect) analogy for 900 numbers; as described above, premium short codes are not addressed by the petition.
IV. The Law Empowers and Requires the FCC to Apply Nondiscrimination to Text Messages
In an attempt to deflect attention from the underlying fact that short codes are offered to the public, the carriers argue that delivering text messages addressed via short codes is an information service rather than a telecommunications service, that SMS is not an interconnected service, and that the Commission does not have the authority to enforce a nondiscrimination rule. As a threshold matter, SMS is a common carrier service because it is offered for a fee directly to the public, and thus meets the definitions of both a “telecommunications service” and a “common carrier” service under the Communications Act. As a result, the nondiscrimination provisions of section 202 apply.
The carriers’ arguments against the Commission’s application of section 202 fail. First, SMS delivery performs no user-visible transformations that might justify classification as an information service. Second, as the Commission has recognized, SMS is interconnected. Third, as licensees, wireless carriers are obligated to act in the public interest. And finally, the Commission has the authority to enforce a nondiscrimination rule through Title I.[74]
A. Common Short Codes are a Telecommunications Service, not an Information Service
The carriers have argued both that the minimal amount of technological transformation performed on text messages removes them from classification as a telecommunications service, and that they are not sufficiently interconnected to qualify as a “commercial mobile service” under section 332 of the Communications Act. This claim does not hold up. Text messaging services are interconnected services which perform no relevant transformations, and are therefore subject to Title II regulations.[75]
1. Minimal Transformation Does Not Turn Telecommunications Services Into Information Services
The carriers have asserted that because SMS is stored by the carrier until the user’s mobile phone is on or in range, it is indistinguishable from email, which has been classified as an information service. The two, however, are far from identical. In support of its proposition, AT&T cites the Commission’s report to Congress on universal service, which points out that email (like text messages), “utilizes data storage as a key feature of the service offering.”[76] The story does not end there, however; in the same paragraph, the Commission states:
The fact that an electronic mail message is stored on an Internet service provider’s computers in digital form offers the subscriber extensive capabilities for manipulation of the underlying data. [After the message is delivered to the recipient’s service provider, the] recipient may then use the Internet service provider’s facilities to continue to store all or part of the original message, to rewrite it, to forward all or part of it to third parties, or otherwise to process its contents-for example, by retrieving World Wide Web pages that were hyperlinked in the message. The service thus provides more than a simple transmission path; it offers users the “capability for … acquiring, storing, transforming, processing, retrieving, utilizing, or making available information through telecommunications.[77]
Rather than demonstrating text messages’ similarity to email, the Commission has effectively distinguished the two. Recipients of text messages have no capabilities for “manipulation of the underlying data.” After an SMS is delivered to the recipient, it is removed from the carrier’s system,[78] and the recipient cannot store it, rewrite it, forward it (except as their phone supports forwarding off-network), or otherwise process it. Text services provide nothing “more than a simple transmission path,” and the fact that that path involves a temporary, one-time storage for a message is irrelevant.
The same reasoning applies to the Broadband Order, in which the Commission held that because ISPs “‘offer’ the information ‘capabilities’ of ‘email, newsgroups, the ability to create a web page … and the DNS (domain name service),” they were offering an information service, even though customers might choose not to use those services.[79] Wireless carriers offer nothing of the sort here; there are no carrier-based services offered on top of text messaging; it is simply a way to get 160 characters of text from a source to a destination, regardless of whether the source or destination is a phone or a short code service provider.
Additionally, the carriers’ recognition of the fact that a user can store a text message in his or her handset[80] after receipt as evidence that text messaging services involve storage is misleading at best. The fact that after the communications has occurred, a user can retain it on his or her handset-which does not belong to the carrier, and likely was not manufactured by the carrier-is irrelevant as to whether the communications itself was an information service. The service is no longer involved by the time the user accesses a stored text message. The fact that it is possible to record and store a telephone conversation on a consumer’s handset[81] does not take voice communications out of the common carrier classification, and it should not do so for text communications either.
Some of the alleged “transformations” are similarly misleading because they are capabilities of the phone rather than the service. As described above, the ability to forward a text message falls into that category; when a consumer forwards a text message, it is effectively the same as that consumer sending a new text message: the content originates from his or her phone, not from the carrier, who has already discarded the received message. Likewise, the features like the addition of a sender’s nickname[82] are generally done by a consumer’s telephone, not by Verizon, who does not even possess that information.
The ability to perform protocol conversions on some text messages does not render the service as a whole an information service. In the proceeding cited by AT&T, the Commission pointed out that “certain protocol processing services that result in no net protocol conversion to the end user are classified as basic services” and are therefore telecommunications services.[83] The situations are roughly analogous, but the result is different than AT&T suggests. The technology at issue in that proceeding was phone-to-phone Internet Protocol (“IP”) telephone services. To the user, these services appeared identical to traditional service, while behind the scenes, the transmission was converted to IP data and later converted back to circuit-switched service before delivery. About this, the Commission stated: “The protocol processing that takes place incident to phone-to-phone IP telephony does not affect the service’s classification, under the Commission’s current approach, because it results in no net protocol conversion to the end user.”[84] This is the case here; while AT&T and Verizon may perform behind-the-scenes conversions in order to get text messages from one network to another, one end user sends text, and another receives that same text, free of any visible difference and unaware that any transformation might have taken place.
That text messages are temporarily stored or technically transformed while in transit does not render them information services. The fact remains that the carrier’s basic purpose in delivering an SMS is to send unaltered text from point A to point B, and then to cease involvement with the message. This is the hallmark of a telecommunications service.
2. Text Messages, Including Those Utilizing Short Codes, Are Sufficiently Interconnected to Meet the Communications Act’s Requirements
AT&T also suggests that because not every user of the public switched network can connect to every other user using SMS, it is not “interconnected” within the FCC’s understanding of the term.[85] They go on to argue that the Roaming Order does not suggest that text messaging is a Title II service, but that “regardless of what the Commission may have said,” it is not a commercial mobile service.
First, we recognize that the Commission has noted that SMS is “an interconnected feature[] or service[] in some instances, but non-interconnected in others.”[86] Importantly, in that order, SMS was discussed in a separate section than the one addressing “non-interconnected features and services,” suggesting that SMS does not fall within the category of “non-interconnected features.”[87] Thus, to the extent that SMS is interconnected, it is indeed a CMRS. For instance, Sprint notes that its SMS service can provide a wireless customer the ability to send a text message to a wireline customer, demonstrating that Sprint’s wireless SMS is interconnected with the public switched telephone network.[88]
More importantly, as noted in our comments and reiterated here, section 332 provides only one route by which a communications service can be classified as a Title II service.[89] The FCC’s description and regulation of SMS in the Roaming Order demonstrates that even should the Commission decline to find that SMS services are interconnected, it still can regulate text messaging through its Title I authority. Further, as discussed in our comments, interconnection is only one route through which text messaging qualifies as a common carrier service subject to all of Title II’s regulations: it also meets the basic definition of a common carrier because it is offered to the public at large, and is therefore a common carrier regardless of whether or not it is interconnected.[90]
B. The Commission Can Protect Users Through Title I
As described in our petition and comments, even if the Commission determines that text messaging via CSCs is an information service, it has demonstrated that it can and will ensure that the interests of consumers are protected by enforcing other regulations as long as they are “reasonably ancillary” to a stated purpose under the Act.[91] Promoting competition and protecting the ability of Americans to exercise their First Amendment rights and have access to modern communications media-without being subject to the carriers’ judgment about what is or is not acceptable speech-is inherent in the Commission’s mandate. The Commission may therefore apply whatever rules necessary to accomplish this under Title I.
Further, Verizon’s contention that the provisioning of short codes falls entirely outside the purview of the Communications Act because “the decision to enable a short code does not itself create a transmission of information over the wireless operator’s network”[92] is specious. Deciding to give a phone number to a customer likewise does not involve any actual communications, and yet carriers cannot engage in unjust and unreasonable discrimination in doing so. It is not the provisioning of a service which must be communications, but the service itself. And there can be no doubt that SMS messages addressed to or from a short code are anything but transmission of information.
C. Wireless Licensees Must Serve the Public Interest
As the Commission observed in the wireless declaratory ruling, licensees remain subject to the public interest standard.[93] For nearly 75 years, the Commission has had an obligation to regulate licensees in the public interest,[94] and licensees have held their licenses as trustees for the communities they serve.[95] This fiduciary duty exists with regard to any spectrum license.[96] If the Commission finds that it would serve the public interest for licensees to offer particular services in particular ways, up to and including acting as common carriers for the messages of others, the Commission has such authority.[97]
D. The Commission Can Decide This Matter through a Declaratory Ruling or Through a Rulemaking Proceeding
Finally, in its comments, Verizon has argued that a declaratory ruling is only meant to “clarify the existing state of the law.”[98] We agree. However, they then suggest that the petition is actually an attempt to change the state of the law.[99] We disagree with that characterization. The existing state of the law is that text messages, including those sent to and from common short codes, qualify as Title II services, both directly under the definition of a common carrier and through section 332 of the Communications Act. No rulemaking proceeding is necessary when the Commission is simply recognizing that an existing service falls within an existing, mandatory statutory definition. However, to the extent that the FCC feels it necessary to implement new rules to ensure nondiscrimination in this particular communications medium, then there are ample opportunities to do so, either through a new proceeding, or an existing related proceeding such as WT 05-265, in which the Roaming Order was filed. The Commission should therefore take whatever procedural steps are necessary to ensure that speech remains free in mobile text services.
V. Blocking Text Messages Violates the Free Speech Rights of Users
The carriers’ responses to the petition evince either a misapprehension of or misplaced goals for the role of mobile carriers in communications. They argue that nondiscrimination harms the carriers’ First Amendment interests, while ignoring the speech interests of citizens. In truth, nondiscrimination implicates the First Amendment interests of carriers much less than those of citizens, and carriers’ rights are still amply protected under a nondiscriminatory rule.
Opponents’ arguments also assume that commercial mobile services are and should be providers of information who exercise editorial control over what their users hear and read. But carriers are not newspaper editors or television stations. While citizens expect the New York Times to report the news as it sees fit, they do not expect AT&T to pick and choose between who is allowed to speak to whom. The difference is critical. Text messages of all forms contain direct, point-to-point, citizen speech, and the carriers of that speech are just that: carriers. Their role is to carry the speech from point A to point B, and not to select which speech is to be carried.
A. Nondiscrimination Favors First Amendment Rights for Consumers
In their comments, carriers have largely ignored the First Amendment rights of citizens and potential short code users, attempting to portray the carriers’ as the only entities whose free speech rights are at issue. However, the speech rights of those who use the communications network are heavily burdened by carrier discrimination.
Mobile carriers should not have editorial control over text messages sent to and from short codes any more than they have editorial control over a phone call between two individuals or an individual and a company. As detailed in section I, there are innumerable uses to which text messages, and CSCs in particular, are being put. When Mobile Verses sends a Bible verse to a subscriber, its message should not be subject to Verizon’s value judgment whether religious messages are allowed. When one citizen sends a message via short code to his friend through AOL’s instant messaging service, its content should not be subject to AT&T’s editorial discretion. When Rebtel wants to contact customers who opt in to their text-based services, T-Mobile should not get to decide if it is allowed to do so. The reason is simple: all of these examples are speech, and when this speech is discriminated against, it is the speakers who suffer the harm, not the carriers. The ability of citizens to speak freely over the nation’s communications network and to fully realize the goals of the First Amendment is far better served by a rule of a nondiscrimination than a rule of total carrier discretion.
B. Nondiscrimination Does Not Present a Significant First Amendment Burden for Carriers
The wireless industry has attempted to portray its refusal to provision CSCs as “no different than a broadcaster’s, cable company’s, or newspaper’s refusal to run commercial advertisements or advocacy pieces.”[100] This analogy fails in several key ways.
First, all three of these mediums primarily involve one-way broadcast transmission. Common short codes are not a broadcast medium, but a way to address and route two-way communications.[101] They are not broadcast — individual messages are sent from one location to another. The fact that a campaign may choose to send the same message to multiple people does not change the fundamental fact that they can and do choose not to, much as sending the same fax to numerous people does not change the sender or the phone company into a radio television broadcaster.
Second, despite the suggestion that “cable companies” can exert editorial control over programming, that control they have is circumscribed for the benefit of diverse speech. There are several classes of programming that cable operators must carry, and which those carriers cannot censor or alter, regardless of what types of information (including “commercial advertisements or advocacy pieces”) those stations are transmitting. These include local broadcast channels,[102] public, educational, and government channels,[103] and leased access channels.[104] All of these stations must be carried by cable operators, and are not subject to those operators’ editorial discretion. Even the dissent in Turner I recognized that acknowledged that cable operators could be regulated as common carriers.[105]
The Commission has also held that multipoint distribution system (MDS) common carriers must offer their services to the public without regard to content, and may only refuse to transmit content which is illegal.[106] The Commission has also established procedures for determining whether such content would be illegal before blocking it.[107] Common carriers have anything but unfettered editorial control, while the Commission has significant power to promote speech and competition by limiting that control. The ability to assert editorial control is a consequence of being a non-common carrier-not the other way around.
Third, the carriers’ suggestion that CSCs are merely a form of advertising, “simply a marketing tool,”[108] some kind of digital billboard rental,[109] or merely a “billing and collection service”[110] denies the truth of how they are being offered and used. As described above, they are actually being used for political purposes, individual communications, corporate contact, health services, governmental services, and more, by everyone from the Republican Party to individuals who want to stay in touch.[111] And, as described in our comments, they are being offered broadly to the public on standard terms.[112] The fact is that CSCs are not just a marketing tool, but a speech tool — a fact which is recognized when carriers attempt to argue for their own First Amendment rights but forgotten when they are attempting to evade common carrier status.
To the extent that broadcasters and publishers have discretion as to what content they provide, their role is very different from that of carriers. Consumers have the choice of hundreds of channels and newspapers, and if they believe that one is not providing the information they desire, they can easily switch to another. Even taking the most optimistic view of carrier competition, there are only a few choices for consumers. Further, television stations and newspapers are sources of information which produce their own stories, and consumers view them as such. Wireless carriers, however, are viewed as carriers of information, and rightly so. This distinction can be seen very simply: The Washington Post offers everyone breaking news, politics, and local news alerts over SMS by sending a simple request to their short code; the carriers’ role is invisible, involving only delivery from the Post to the consumer.[113] In fact, the discretion that the carriers wish to have is appropriate only for those doing the communicating. The situation as the carriers would have it would be equivalent to a newspaper delivery service cutting out articles from someone else’s newspaper, or a cable channel blanking out a single television show on a channel they otherwise carry.
C. The Fact that Carriers Carry Their Own Speech is Irrelevant
Verizon has pointed to the fact that it, like other wireless operators, “engages in protected speech over its text messaging system and in its own short code campaigns” as evidence that nondiscrimination will harm their First Amendment interests.[114] It is unclear, however, how a nondiscrimination rule burdens a carrier’s free speech rights. To the extent that carriers use their own networks to directly contact their customers or run their own short code campaigns,[115] it would be equally free to do so in a nondiscriminatory system. Likewise, if a carrier must add headers to a message indicating the sender and date of transmission,[116] a rule requiring nondiscriminatory access to the service would not be a barrier. In short, the carriers’ First Amendment rights would survive a nondiscrimination rule unaltered and unburdened.
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
Marvin Ammori
Free Press
501 Third Street NW
Suite 875
Washington, DC 20001
(202) 265-1490
mammori@freepress.net
[1] See 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]. See also Public Knowledge et al., WT Docket No. 08-7, Mar. 14, 2008, available at http://www.publicknowledge.org/pdf/pk-etal-comments-20080314.pdf [hereinafter PK Comments]. These reply comments incorporate by reference the Petition, PK Comments, 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.
[3] Voice over Internet Protocol.
[4] Petition at 7-13.
[5] Id. at 16-24.
[6] PK Comments at 3-5.
[7] Petition at 2-3; Comments of CTIA - The Wireless Association at 5-6, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519867094 [hereinafter CTIA Comments]; Comments of Verizon Wireless at 8-9, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519866994 [hereinafter VZW Comments].
[8] See, e.g. Verizon Comments at 2.
[9] Comments of Sprint Nextel Corporation at ii, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519867022 [hereinafter Sprint Nextel Comments].
[10] “Common Short Codes (CSCs) are phone numbers, usually four to six digits, that mobile phone users utilize to send Short Message Service (SMS) messages to in order to receive information, sports scores, weather alerts, or to participate in contests and receive electronic coupons.” Mobile Marketing Association, Common Short Code Primer at (http://www.mmaglobal.com/shortcodeprimer.pdf) (available through the CSCA web site).
[11] For brevity, petitioners use the term “short code messages” to describe SMS messages sent to or from short codes and to the related process of provisioning short codes for SMS services; this in no way implies that they are not SMS-based services. Likewise, the terms “text messaging” and “SMS” are used, as they are by the industry and general public, interchangeably; as discussed above, with current technology, text messages can contain more than text-based speech. Finally, when petitioners describe as text messages being sent “via short codes,” it is referring to the fact that the messages in question are addressed to or from a short code.
[12] Comments of MetroPCS Communications, Inc. at 8, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519866969 [hereinafter MetroPCS Comments].
[13] CTIA Comments at 9.
[14] Verizon Comments at 8. Verizon, however, goes on to clarify that this is true “[s]o long as an individual customer does not send so many identical text message that they trigger the carrier’s spam filter.” Id. at 9.
[15] Notably, the Commission’s CMRS Competition Report includes data and analysis about the text messaging market, although it is unclear whether this report includes text messages sent to or from short codes. See Federal Communications Commission, Twelfth Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services, WT Docket No. 07-71, FCC 08-28 (Feb. 4, 2008) [hereinafter 2008 CMRS Competition Report], available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-28A1.pdf.
[16] Verizon Comments at 13-14, Comments of Rebtel, Inc. at 3-4, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519867012 [hereinafter Rebtel Comments].
[17] Verizon Comments at 13-14.
[18] See, e.g., Verizon Comments at 15; AT&T Comments at 19.
[19] See, e.g., Petition at 19-20; Verizon Comments at 7; MetroPCS Comments at 2, CTIA Comments at 51.
[20] Petition at 20, 23-24.
[21] PK Comments at 9.
[22] Mobile Verses, at http://www.mobileverses.com/pin/pages/1.php?p=MV&r=menu. While Mobile Verses is a premium short code service, it still demonstrates the breadth of uses to which short codes are put.
[23] Comments of National Association of Realtors, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519854987.
[24] See America Online, AOL Introduces New AIM Version 6.5, at http://corp.aol.com/press_releases/2007/10/aol-introduces-new-aim-version-65 (Oct. 3, 2007).
[25] See Twitter, Twitter Phone FAQ, at http://help.twitter.com/index.php?pg=kb.page&id=102.
[26] See Roam Secure, Customer Profiles, at http://www.roamsecure.net/customerprofiles.php.
[27] See San Francisco Chronicle, FCC Plan Will Use Texting For National Alert System (Apr. 10, 2008), available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/04/09/BUQ1102SJK.DTL; Federal Communications Commission, Commercial Mobile Alert System First Report and Order, F.C.C. 08-99 (Apr. 9, 2008). We note that is not clear at this juncture what addressing system CMAS will use for its SMS messages.
[28] See Wireless Amber Alerts, at http://wirelessamberalerts.adcouncil.org/howwirelessamberalertswork.htm.
[29] See Attachment A; CSCA Directory, at https://www.usshortcodes.com/csc/directory/directoryList.do?method=showDirectory&group=all. For current information about how people are making new uses for text messaging and short codes, see http://www.textually.org/.
[30] CSCA Directory, at https://www.usshortcodes.com/csc/directory/directoryList.do?method=showDirectory&group=all.
[31] Verizon Comments at 10-11.
[32] See Rebtel Comments.
[33] Comments of Chamber of Commerce at 4, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519867071.
[34] Comments of T-Mobile USA, Inc. at 7, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519867018 [hereinafter T-Mobile Comments].
[35] Rebtel Comments.
[36] Verizon Comments at 22.
[37] Rebtel Comments at 6.
[38] Of course, the consumer can opt to have that marketing call blocked through the do-not-call registry.
[39] See Comments of AT&T, Inc. at 20, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519867003 [hereinafter AT&T Comments]; 47 U.S.C. § 332(c)(8) (exempting commercial mobile services from “equal access”).
[40] Rebtel Comments.
[41] See CTIA, Current Members, at http://www.ctia.org/membership/ctia_members/ (including AT&T Mobility, Verizon Wireless, T-Mobile USA, and Sprint Nextel Corporation).
[42] See Rebtel Comments at 6.
[43] Comments of the Open Internet Coalition at 7, available at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519867015. See also
[44] Id. at 7.
[45] United States Department of Justice, Horizontal Merger Guidelines § 1.51, available at http://www.usdoj.gov/atr/public/guidelines/horiz_book/15.html. See also Janice Obuchowsi, A Broadband Pipe, or a $12 Billion Pipe Dream? at 6, available at http://www.newamerica.net/files/ObuchowskiPresentationSlides.pdf (detailing concentration of wireless market from 199 to 2004).
[46] 2008 CMRS Competition Report ¶ 52.
[47] See, e.g., Verizon Comments at 3-4, 24; CTIA Comments at 8; AT&T Comments at 19.
[48] 47 U.S.C. § 202.
[49] Verizon Comments at 7.
[50] Sprint Nextel Comments at 16.
[51] See Mobile Phone Use Restricted During School and While Driving; Text Messages Monitored for Words; Cyber Bullying Protection, Fox Business (Apr. 9, 2008), available at http://www.foxbusiness.com/article/mobile-phone-use-restricted-school-driving-text-messages-monitored-words-cyber_555638_1.html.
[52] T-Mobile Comments at 9 n.14.
[53] See, e.g., Verizon Comments at 24; T-Mobile Comments at 19.
[54] Verizon Comments at 24.
[55] See Los Angeles Times Blog, AT&T Drops Pearl Jam’s Ball (Aug. 8, 2007), at http://opinion.latimes.com/bitplayer/2007/08/att-drops-pearl.html.
[56] See Communications Workers of America, CWA and German Union Ver.di Form New ‘T Union’, at http://www.cwa-union.org/news/cwa-and-german-union-ver-di-form-new-t-union.html.
[57] We note that even when common carriers wish to block allegedly illegal activities, there are procedures which they must follow. See Humane Society v. Western Union, Inc., 30 F.C.C.2d. 711 (1971). To the extent that carriers want to be able to block illegal speech, the Commission should look to these procedures for an example of how to regulate this ability.
[58] See Reply Comments of American Federation for the Blind, WT Docket No. 08-7.
[59] 47 U.S.C. § 255.
[60] See CTIA Comments at 28.
[61] CTIA Comments at 28; Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 447 (2d Cir. 2007) (cert. granted).
[62] Fox, 489 F.3d at 461.
[63] See FCC v. Fox Television Stations, Inc., 2008 WL 695624 (Mar. 17, 2007) (granting cert.).
[64] CTIA Comments at 28; F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978) (regulating in the context of radio broadcasting).
[65] 47 U.S.C. §532(a)
[66] See infra notes 102-104.
[67] Time Warner Entertainment Co. v. FCC, 93 F.3d 957, 968 (D.C. Cir. 1996).
[68] See, e.g., Fox, 489 F.3d 444, 463 and cases cited therein.
[69] CTIA Comments at 16-27.
[70] See CTIA Comments at 13-14.
[71] See CTIA Comments at 16 (recognizing a “duty to deal”).
[72] See, e.g., Telephone Consumer Protection Act of 1991, Pub. L. 102-243, codified at 47 U.S.C. § 227 (regulating telephone marketers and unsolicited faxes); Do-Not-Call Implementation Act, Pub. L. 108-10 (2003), regulations implemented at 47 C.F.R. § 64.1200(c)(2)) (creating national do-not-call list); CAN-SPAM Act of 2003, Pub. L. 108-187, codified at 15 U.S.C. § 7701 et seq. (regulating email marketing).
[73] CTIA Comments at 6.
[74] Despite the carriers’ attempts to suggest otherwise, petitioners also agree that the Broadband Policy Statement does not currently apply to text messages, either through short codes or traditional telephone numbers. See Verizon Comments at 39-40. We do, however, reiterate our assertion that “[a]lthough text messaging does not provide Internet access, the reasoning behind the Commission’s four consumer principles in its Broadband Policy Statement apply to SMS as well.” Petition at 19 (emphasis added); Federal Communications Commission, Policy Statement, Aug. 5, 2005, at http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf. The Commission’s goal is to “promote the vibrant and open character” of all of our communications networks, not just the Internet. Broadband Policy Statement at 4. Therefore, customers of text messaging services, like those of Internet services, should be allowed to access the lawful content of their choice and the applications and services of their choice, on the device of their choice, from the provider of their choice.See id. at 4. The key is that the choice must lie with the consumer, not the carrier.
[75] See Petition at 7.
[76] AT&T Comments at 3; In re Federal-State Joint Board on Universal Service, 13 F.C.C.R. 11501, ¶ 78 (1998) [hereinafter Universal Service Report].
[77] Universal Service Report ¶ 78.
[78] A text message may remain briefly on a carrier’s system for law enforcement purposes; however, the consumer will no longer have access to it. See Verizon Comments at 33.
[79] See AT&T Comments at 14; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, 17 F.C.C.R. 4798 ¶ 39 (2002).
[80] AT&T Comments at 10.
[81] mVoice Product Information, at http://software.palminfocenter.com/product.asp?id=779&n=mVoice; CallRec Product Information, at http://software.palminfocenter.com/product.asp?id=1962.
[82] Verizon Comments at 35.
[83] In re Federal-State Joint Board on Universal Service, 13 F.C.C.R. 11830 ¶ 50 (1998).
[84] Id. ¶ 52.
[85] AT&T Comments at 12.
[86] AT&T Comments at 13 (citing Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, 22 F.C.C.R. 15817 ¶ 55 (2007) [hereinafter Roaming Order]).
[87] Cf. Roaming Order ¶¶ 55, 56.
[88] Sprint Comments at 11-12.
[89] PK Comments 3-5.
[90] Id.
[91] See Petition at 17. See, e.g., 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)).
[92] Verizon Comments at 38.
[93] Federal Communications Commission, Declaratory Ruling on Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks ¶ 35, WT Docket No. 07-53, FCC 07-30 (Mar. 23, 2007), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-30A1.pdf.
[94] See NBC v. United States, 319 U.S. 190 (1943).
[95] See 47 U.S.C. 309(a) (conditioning granting of a license on “whether the public interest, convenience, and necessity will be served ….”); United Church of Christ v. FCC, 359 F.2d 994, 1003 (1966).
[96] See, e.g., Time Warner v. FCC, 93 F.3d 957, 973-77 (D.C. Cir. 1996).
[97] Red Lion Broadcasting v. FCC, 395 U.S. 367, 390-391 (1969) (“Rather than confer frequency monopolies on a relatively small number of licensees…the Government could surely have decreed that each frequency should be shared among all or some of those who wish to use it.”). See also FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978) (upholding post-grant divestitures in the public interest).
[98] Verizon Comments at 41.
[99] See id.
[100] CTIA Comments at 54; AT&T Comments at 22; Verizon Comments at 46.
[101] See Verizon Comments at 8.
[102] See 47 U.S.C. §§ 534, 535; Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180 (1997) (upholding constitutionality of must-carry legislation, citing its promotion of competition and a variety of information sources).
[103] See 47 U.S.C. § 531(b); Time Warner Entertainment Co. v. FCC, 93 F.3d 957, 971-73 (D.C. Cir. 1996) (upholding statute granting local franchising authorities power to require local cable franchises to carry public, educational, and government channels).
[104] See 47 U.S.C. § 532(b)(1); Time Warner, 93 F.3d at 967-71 (upholding law requiring cable operators to set aside a portion of their channels “for commercial use by persons unaffiliated with the operator,” citing government goal of “bringing about ‘the widest possible diversity of information sources for cable subscribers”).
[105] See Turners Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 684 (1994) (O’Connor, dissenting) (“[I]t stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of cable companies.”)
[106] In re Enforcement of Prohibitions Against the Use of Common Carriers for the Transmission of Obscene Materials, 2 F.C.C.R. 2819 ¶ 5 (1987).
[107] See Humane Society v. Western Union International, Inc., 30 F.C.C.2d 711 (1971).
[108] See CTIA Comments at 52.
[109] Verizon Comments at 9.
[110] CTIA Comments at 14.
[111] For more specific examples, see Section I.B on page 7, as well as the extensive, but non-exhaustive list in Attachment A.
[112] PK Comments at 4-5.
[113] See Mobile News and Text Alerts from washingtonpostmobile, at http://www.washingtonpost.com/wp-srv/contents/devices.htm.
[114] Verizon Comments at 50-51.
[115] See id. at 50.
[116] See id. at 35.
