The FCC has a bad reputation when it comes to protecting the public. Consumer advocates and their media allies have pounded the Commission’s for its net neutrality and Lifeline decisions. Moreover, the Commission’s refusal to take seriously economic data that disagree with its pre-ordained opinions on issues is indefensible. However, when it comes to stopping illegal robocalls, the agency has been very consumer focused. Its latest action is to try to preempt unwanted wireless text messages before they become a major problem. It is doing so by planning to adopt at its December 12, 2018 meeting, a Declaratory Ruling in Docket 08-7, in which it will find that wireless texting is an information service rather than a common carrier telecommunications service. This classification would enable wireless providers to take the steps needed to stop unwanted text messages. It is not without controversy. First, some background. 

In 2007, Public Knowledge filed a Petition for Declaratory Ruling requesting the Commission to classify text messaging services as commercial mobile services (i.e., telecommunications services). The consumer advocacy organization argued that this classification was necessary to ensure that wireless messaging providers could not “refus[e] to provision a short code or otherwise blocking text messages because of the type of speech which will be engaged in, or because the party seeking service is a competitor.” 

In 2015, Twilio, a provider of mass-texting and spoofing services, filed a Petition for Expedited Declaratory Ruling in which it also asked the FCC to declare that messaging and commercial mobile services are telecommunication services subject to common carrier regulation under the Telecom Act. Twilio claimed that this was necessary to prohibit wireless providers from “unfettered” blocking of text messages. According to the Commission, “Twilio seeks to leverage the common carriage obligations associated with those regulatory classifications to stop wireless messaging providers from incorporating robotext-blocking, anti-spoofing measures, and other anti-spam features into their offerings.”

The Commission sat on these petitions for years. But now, as part of its battle against illegal robocalls, finally decided to address the texting issue. In the proposed Declaratory Ruling, the Commission;

Finds that two forms of wireless messaging services—Short Message Service (SMS) and Multimedia Messaging Service (MMS)—are “information services,” not telecommunications services, under the Communications Act, and that they are not commercial mobile services, nor their functional equivalent. 

Den[ies] the requests of Twilio and other parties seeking to apply common carriage regulation to these wireless messaging services. 

Remove[s] regulatory uncertainty and empower[s] wireless messaging providers to continue protecting American consumers from unwanted text messages, including spam and scam robotexts. (FCC Fact Sheet, Docket 08-7, released November 21, 2018).

Short Message Service (SMS) enables users to send and receive short text messages, typically 160 characters or fewer, to or from mobile phones and can support a host of applications. It works as follows: 

When a user sends a message, the message is routed through servers on mobile networks. When a recipient device is unavailable to receive the message because it is turned off, the message will be stored at a messaging center in the provider’s network until the recipient device is able to receive it. The messaging center will then forward the message to the recipient device when it becomes available. After the network delivers the message, the message is then stored on the user’s device and will remain stored there until the user deletes it. (FCC Draft Declaratory Ruling, Docket 08-7, at para. 4).

SMS has evolved to allow for Mass Market Service. 

Today, the content that can be sent by wireless messaging is not limited to mere text. In particular, [Mass Market Service (MMS)] is an extension of the SMS protocol and can deliver a variety of media, and enables users to send pictures, videos, and attachments over wireless messaging channels. (Id.) 

Consumer advocates are already up in arms, claiming that this decision would allow wireless carriers to censor speech with which they disagreed with. In a November 20, 2018, statement, Harold Feld, the Senior Vice-President of Public Knowledge stated,

It wouldn’t be the holiday season without Chairman Pai giving a great big gift basket to corporate special interests at the expense of American consumers. Chairman Pai proposes to grant the wireless industry’s request to classify text messages as Title I ‘information services,’ stripping away vital consumer protections. Worse, Chairman Pai’s action would give carriers unlimited freedom to censor any speech they consider controversial...

Chairman Pai supports this outrageous action by claiming the Title II ‘telecommunications service’ classification undermines spam filtering. As the FCC made clear in 2016 (over then-Commissioner Pai’s dissent), text messages and robocalls are both ‘calls’ under the anti-robocall statute, and this Title II designation does not prevent filtering or other technological means to block unwanted robocalls or spam texts. Indeed, Chairman Pai undermines his own argument by pointing out that email, which has always been an information service, has a 50 percent spam rate whereas text messaging, which the FCC treats as a ‘phone call,’ has a 2.5 percent spam rate.”

I disagree with Public Knowledge. Unwanted robocalls are already a major problem for consumers. It is only a matter of time before the practice spreads to texting, which is especially problematic since so many easily influenced teenagers primarily communicate through this medium. If a wireless carrier does attempt to censor unlawful speech or hamstring its competitors, the Commission notes that the market can usually handle the problem:

At the same time, we find no reason to believe that consumers will not receive the messages they do want as a result of this Declaratory Ruling. First, wireless providers have every incentive to ensure the delivery of messages that consumers want to receive in order to guarantee the integrity of this essential service and to retain consumer loyalty. Consumers have a wealth of options for wireless messaging service; if wireless providers do not ensure that messages consumers want are delivered, they risk losing those customers to other wireless providers or to over-the-top applications. In the occasional event that such measures have been found to block messages that may be wanted, wireless providers have responded quickly. Some parties asserted in their 2015 comments that blocking practices were opaque, but industry has responded to calls for more transparency so that consumers or businesses can detect or appeal the blocking. (FCC Draft Declaratory Ruling, at para. 46).  

Although it seems clear that the Commission has the legal authority to classify wireless text messages as information services, this decision is likely (like virtually all controversial FCC decisions) to be appealed to the courts. Thus, a final decision is probably years away.