Wireless operators got what they were asking for when the FCC voted 3:1 to deny requests from Twilio and others to classify text messaging services as “telecommunications services,” which would subject them to harsher regulation. Instead, the FCC voted to classify SMS and MMS as “information services.”
Proponents to the classification as an information service said it will prevent wireless carriers from having to remove the types of filters and anti-spoofing measures they use to block spam. Opponents said it will give operators license to block texts if they don’t like the content or see messages coming from a competing service. In its petition (PDS), Twilio cited instances of wireless carriers blocking texts from Rebtel, an OTT international calling facilitator.
FCC Chairman Ajit Pai said a mere 3% of SMS messages are spam, and classifying text messages as telecommunications services would open the floodgates to unwanted texts. He cited numerous organizations, including the public safety association NENA, that expressed concerns about consumers getting inundated with spam texts.
“The FCC shouldn’t make it easier for spammers and scammers to bombard consumers with unwanted texts,” Pai said in a prepared statement. “And we shouldn’t allow unwanted messages to plague wireless messaging services in the same way that unwanted robocalls flood voice services. But that’s precisely what would happen if we were to classify text messaging services as telecommunications services and subject them to common-carrier regulation under Title II, as mass-texting companies and others have asked us to do.”
Commissioner Michael O’Rielly said the classification as information services allows mobile service providers to better compete with WhatsApp, Facebook Messenger and other over-the-top (OTT) apps that, according to at least one report, make up 75% of all text messages. Such OTT apps are outside the FCC’s regulatory jurisdiction, so they aren’t regulated; the ruling the commission adopted clarifies that text messaging services provided by wireless operators will be treated similarly.
He also said he appreciates that the version of the order adopted by the commission that includes language that successor technologies, like RCS, will be expected to be considered as information services and that he is hopeful the measure will expand to include the treatment of VoIP and VoLTE.
Commissioner Brendan Carr said the commission is just taking a “commonsense step” of clarifying that SMS and MMS text messaging services are, like WhatsApp, Snapchat and iMessage, not Title II telecommunications services. It doesn’t mark a sea change and simply codifies the status quo—one that has allowed innovative messaging services to launch and compete with one another, he said.
Commissioner Jessica Rosenworcel, the only Democrat on the commission, dissented, saying the whole thing amounted to “doublespeak,” or using language to make the unpleasant appear to be pleasant. The ruling doesn’t offer any new ability to prevent robotexts; it simply allows for carriers to block text messages and censor content, she said.
The petition had asked the commission to affirm what should be obvious: that text messaging is “telecommunications”—which is to say that when you send a text, you expect your carrier will send it where you want it to go without changing its content or blocking it. “It’s that simple,” she said.
Instead, the commission twists the law to reach the conclusion that consumers no longer have the final say on where their text messages go and what they say. “That means your carrier now has the legal right to block your text messages and censor the very content of your messages,” she said.
The public interest group Public Knowledge, which has long spearheaded efforts to classify text messaging as a Title II “common carrier” telecommunications service, believes the FCC's action undermines the public’s right to use text messaging without undue interference from wireless companies. In addition, it said the Declaratory Ruling doesn't address how the potential loss of billions of dollars in revenue will impact the federal Universal Service Fund (USF).
“No one should mistake today’s action as an effort to help consumers limit spam and robotexts,” said Harold Feld, senior vice president at Public Knowledge, in a statement. “There is a reason why carriers are applauding while more than 20 consumer protection advocates—along with 10 Senators—have cried foul. This decision does nothing to curb spam, and is not needed to curb spam. It is simply the latest example of Chairman Pai’s radical agenda that puts companies ahead of consumers. We urge members of Congress to overturn this decision and ensure that wireless carriers cannot block or censor personal text messages.”