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In my last post, I addressed how Federal Communications Commission Chairman Ajit Pai isn’t really preventing robocalls with his new draft Order to classify both SMS text messaging and short codes as Title I “information services.” Now I will discuss the potential consequences for such a maneuver, and why doing so could send consumer protections tumbling down.
The Communications Act of 1934 rests on a foundation that classifies communications things, like using a landline telephone or watching cable television, by what they do, such as Title II for telecommunications, Title III for wireless services (including broadcasting), and Title VI for cable. Title I (information service) is just the introductory section. If we get rid of the idea of “ancillary authority” (which both the courts and Chairman Pai’s FCC have been doing), then you undermine the essential foundation. (If you’re curious about ancillary authority, sometimes referred to as “Title I” authority, you can find more background here and here. Suffice it to say the law on ancillary authority is now sufficiently confused given that opponents of it say it lets the FCC do virtually anything, whereas many public interest groups, academics, and even industry lawyers now consider it a dead letter.)
Basically, the Communications Act’s very complex system of rules and obligations that make sure that our critical communications infrastructure actually works is like a big old regulatory game of Jenga, the game where you see how many bricks you can pull out before the whole thing collapses. In the beginning, it’s fine. You can pull out a whole lot of bricks and everything looks stable. Then you remove just one more brick and -- boom! -- all your bricks come tumbling down.
The FCC has a bunch of Orders in place that relate to treatment of text messages that look a lot like Title II. Since neither carriers nor consumers wished to risk a bad decision by challenging the FCC, we evolved the current status quo of leaving texting unclassified but subjecting it to roaming obligations and various public safety requirements. If enacted, Chairman Pai’s draft Order will, in its own words, end that uncertainty. As always, rather than actually grapple with any of the legal issues and uncertainties sure to be caused by this Order, Chairman Pai either ignores them entirely (as with the Universal Service Fund financing question) or airily dismisses them. We don’t go through all the implications for every FCC Order (such as the Next Generation 911 material), but here is where we review our quick list from our initial post.
If you need a refresher, playing cutesy games with regulatory definitions will have a bunch of unintended consequences that Chairman Pai’s draft Order either shrugs off or fails to consider. Notably:
- Classifying texting as Title I will take revenue away from the Universal Service Fund (USF). This will further undermine funds to support rural broadband.
- Classifying texting as Title I disrupts the current automatic roaming framework established by the FCC in 2007.
- Classifying texting as Title I may, ironically, take it out of the jurisdiction of the Robocall statute (Telephone Consumer Protection Act (TCPA) of 1991), thereby making it harder for the FCC to stop robocalls.
- Classifying texting as Title I trashes whatever consumer protections we have for text messages, and takes one more step to total administrative repeal of Title II. Which sounds like fun if you are a carrier, but leaves us little people operating without a safety net for our critical communications infrastructure (as I’ve been writing about for 10 years).
Let’s address these piece by piece.
Takes a Bite Out of USF Funding.
The Universal Service Administration Corporation (USAC) has not said how many carriers treat SMS texting revenue as telecommunications, and therefore how much money will stop flowing in to USF to fund rural broadband development and Lifeline. (As you may recall from the previous post, USF is funded through telecommunications revenues.) It is therefore hard to assess how big a bite eliminating this source of revenue will be. Certainly the opposite finding, that SMS is a Title II service, would have been a major boost to USF funding and connecting rural Americans to high-speed internet. So the concern here is not just the actual dollars lost for USF, but the missed opportunity to provide for an increasingly shrinking fund as well. So much for Chairman Pai being a friend to rural Americans.
Potentially Disrupts the Existing Roaming Framework.
Back in 2007, the FCC reclassified voice and text message roaming as a Title II service and required carriers to offer it to each other at “just and reasonable rates” (you can read about that over here). Technically, the FCC 2007 Order did not classify SMS as Title II, but said the agency would treat SMS as Title II either under Title II authority or through Title I ancillary authority.
So what’s the problem? Between 2007 and now, the D.C. Circuit Court of Appeals decided a case on data roaming called Cellco Partnership, LLC v. FCC. Under that case (and further reinforced by the 2014 net neutrality case, Verizon v. FCC), you can’t treat a non-Title II service like a Title II service, which is what the FCC did for text messaging in the 2007 Roaming Order. Needless to say, this is another one of those loose ends the draft text messaging classification Order does not bother to address.
Is this a big deal? Who knows? We probably won’t find out until someone challenges it. As carriers benefit the most from the FCC classifying text messaging as Title I, you would think carriers would behave in order to avoid a case posing the question. Also, we have no idea if text message roaming is an issue. It’s just another Jenga brick yanked out of the structure creating another point of uncertainty.
Possibly Removes Text Messages from the Telephone Consumer Protection Act.
The Communications Act did not have a formal definition of “telecommunications” or “telecommunications service.” So when Congress passed the Telephone Consumer Protection Act of 1991, the relevant robocall statute, Congress did not define things like “telephone calls.” It merely specified that it was amending Title II by adding the new Section 227. When the FCC updated its rules in 2003 to include robotexts as telephone calls, it did the same sort of hand-waving-around “maybe it is Title II, maybe it isn’t, but Congress probably wanted us to treat it as Title II, so we are.”
Now does that still stand when text messages are definitively Title I? Once again, the draft Order does not consider this possibility. To the extent Chairman Pai’s draft Order discusses the FCC’s previous treatment of text messaging, it is to explain that simply because the FCC defined text messaging as a “phone call” for Section 227 of Title II, that doesn’t mean text messaging is actually Title II. Sure, back in 2003, the FCC once again dodged the question. But there is a difference between saying “maybe it is, maybe it isn’t” and definitively saying “no, it isn’t.” And frankly, I’m having a tough time reconciling the FCC’s unexplained expansive definition of “telephone calls” in Section 227 to include text messages after now-Supreme Court Justice Brett Kavanaugh provided such a narrow interpretation of the FCC’s authority to interpret Section 227 in Bais Yaakov of Spring Valley v. FCC.
But Chairman Pai pretty much counts on nobody challenging the pro-consumer protection parts of things like TCPA because the big carriers know better and consumers would rather hope for the best than confirm the worst and see SMS text messages taken out of the TCPA. Maybe the situation will work out for consumers -- or it’ll just pull one more brick from the Jenga stack.
Eliminating Any Consumer Protections for Text Messaging Continues to Dismantle Our Infrastructure Safety Net.
Of course, we shouldn’t lose sight of Chairman Pai’s real objective with this draft Order: The complete elimination of the FCC’s role as a consumer protection agency (with the exception of dealing with robocalls, apparently) and the general administrative repeal of the core of the Communications Act through fun games with reclassification.
As we noted last year in response to the broadband reclassification Order, and demonstrated here once again, Chairman Pai has created the perfect recipe for making it virtually impossible for the FCC to ever classify a service as “Title II telecommunications” ever again. Start with the definition for “information service,” mix in some way to describe the service in a manner that fits that definition, then add a dash of treating “telecommunications services” as mutually exclusive from “information services,” and viola! You no longer need to determine if a service actually fits the definition of “telecommunications.” In short, Chairman Pai has baked the world’s best pie for abandoning consumers, and it isn’t tasty.
The reality of this draft Order is that the FCC is once again ringing the dinner bell for carriers to come and chow down at consumers’ expense. And since traditional copper-line phone service is being replaced with various forms of voice over IP, we can expect Chairman Pai to throw another holiday feast for his carrier friends next year -- on our tab. As always, Santa Pai will promise that everything will work out just fine.
Until, of course, it doesn’t.