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.
In December 2007, Public Knowledge filed a Petition For Declaratory Ruling asking the Federal Communications Commission to clarify that both SMS text messaging and short codes are “Title II” telecommunications services. Put another way, we asked the FCC to reaffirm the basic statutory language that if you use telephones and the telephone network to send information from one telephone number to another, it meets the definition of “telecommunications service” (47 U.S.C. 153(53)).
Last week, the Federal Election Commission (FEC) released an advisory opinion clearing the way for campaign donations via text message. This is a positive step. However, the opinion raises some interesting questions about just how much control wireless carriers are going to have over which campaigns get to raise money via text message – and what happens when a candidate takes a policy position against the carriers.
Word broke yesterday that carriers are dragging their feet on text-to-donate for political campaigns. The Obama and Romney campaigns and their supporters find themselves completely at the mercy of the wireless carriers. If those carriers decide not to let people donate to political campaigns via text message there is not a lot that can be done about it.
While the Obama and Romney campaigns' attempt to use text messaging is currently playing out at the FEC, this all comes back to the FCC. After all, even if the campaigns win at the FEC, the carriers can still simply refuse to carry the campaigns. And the fault for that is squarely on the FCC.