Groups Warn FCC Flawed ‘Robotext’ Order May Hurt Consumers, Reduce Federal Broadband Funding

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Today, Public Knowledge joined 19 other public interest, rural, Native American, and consumer groups in a letter urging Federal Communications Commission Chairman Ajit Pai to either issue a new Public Notice examining the classification of text messaging and short codes, or to classify both as Title II telecommunications services.

On December 12, the FCC will vote on a Declaratory Ruling in the “Text Messaging Classification” proceeding. As currently written, the FCC’s draft Order will formally classify text messaging as a Title I information service under the Communications Act. Doing so will enable wireless carriers to discriminate against short-messaging services (SMS) and short codes, the standard five or six-digit vanity numbers used by organizations such as Catholic Relief Services for disaster relief campaigns, or by political campaigns and marketing firms.

Public Knowledge, which has long spearheaded efforts to classify text messaging as a Title II “common carrier” telecommunications service, believes this action undermines the public’s right to use text messaging without undue interference from wireless companies. In addition to these concerns, the letter expresses concern that the proposed Order does not address how the potential loss of billions of dollars in revenue will impact the federal Universal Service Fund (USF), the primary federal subsidy for affordable telephone and broadband access.

Other signatories include Communications Workers of America, Consumer Reports, National Digital Inclusion Alliance, National Hispanic Media Coalition, and Tribal Digital Village Network.

The letter to Chairman Pai states:

“We write to express our opposition to the proposed Declaratory Ruling classifying SMS text messaging and short codes as an ‘information service’ rather than a ‘telecommunications service’ subject to Title II. The proposed classification will deprive the Universal Service Fund -- which funds both Lifeline and the Connect America Fund (CAF) -- of billions of dollars in contribution-eligible revenue at a time when the existing contribution pool continues to decline alarmingly.

“We therefore urge the Commission to classify SMS and short code texting as Title II services subject to USF contribution. In the alternative, we ask you to defer classification of text messaging and that you issue a new Public Notice in the above captioned proceedings to resolve the question of appropriate treatment of SMS revenues, including whether SMS revenues could be included in USF under an ‘information services’ classification.

“Based on numerous incidents in the past, we fear that permitting carriers to block messages without any oversight will result in censoring time-critical speech, hamper efforts to organize political engagement and severely restrict the ability of civil rights organizations, religious organizations, and other non-commercial organizations to use texting platforms to their full capability. Finally, we fear that classifying text messaging as an entirely unregulated ‘information service’ eliminates the important consumer protections afforded by Title II such as Truth-In-Billing, prohibitions on price gouging, and strong privacy protections under the Commission’s CPNI rules.

“While we all support the goal of reducing spam and robocalls, the Commission has repeatedly made clear in the past that Title II classification does not prevent carriers from using technological means to block unwanted texts or robocalls. Ironically, the definitive classification of texting as an information service may even make the problem of blocking spam worse. By classifying texting as being the same as email, the proposed classification order may actually remove texting from the anti-robocalling statute, the Telephone Consumer Protection Act of 1991 (TCPA).

“[Therefore], we ask that you either classify SMS text messaging and short codes as a Title II service clearly eligible for USF contribution, and subject to all other privacy and consumer protections applicable to mobile telephone calls, [or] at the least, we ask that you withdraw the proposed Order until these issues can be properly addressed on a refreshed record.”

You may view the full letter, as well as a separate ex parte filing signed by multiple groups arguing that classifying SMS text messaging and short codes as Title I information services is unlawful.

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