On Friday, Petitioners (including Public Knowledge) finally got to make their case in court that the Federal Communications Commission’s reckless abdication of responsibility over broadband was also illegal. For about five hours, in the ceremonial courtroom of the E. Barrett Prettyman United States Courthouse, in front of D.C. Circuit Judges Millett, Williams, and Wilkins, attorneys for Petitioners, for the FCC, and for intervenors on both sides got a grilling in a court that has become a regular forum for disputes over the status of broadband and the lawfulness of net neutrality rules.
In December 2017, the Federal Communications Commission under Chairman Ajit Pai voted to repeal net neutrality rules enacted two years earlier. While 83 percent of Americans support net neutrality and opposed the reversal, broadband providers unsurprisingly supported it. Many said they would not use the repeal as an opportunity to discriminate among internet content -- but now there are no rules stopping them from doing exactly that.
Today, the Federal Communications Commission voted on a party-line vote to approve a Declaratory Ruling on “Text Messaging Classification,” classifying text messaging as a Title I information service under the Communications Act. This action enables 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.
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)).