Several consumer groups are opposing the FCC’s proposed declaratory ruling that intends to formally classify text-messaging services as information services, rather than telecommunications services. The FCC plans to vote on this matter during its Open Meeting of December 12, 2018.
Pursuant to the draft Declaratory Ruling, the FCC will declare that SMS and MMS messages are information services, not telecommunications services, under the Communications Act. The FCC claimed that such a move would allow phone companies and carriers to better protect consumers from receiving spam messages, and also to invest on and implement new technologies to prevent message spoofing.
The decision has received polarizing reactions. The CTIA, organization representing the wireless companies, has commended the FCC saying that “the FCC is preserving the wireless industry’s ability to protect consumers, while fostering a competitive and innovative messaging ecosystem. That’s the right result.”
However, the proposed ruling has also received strong opposition. On December 6, 2018, a number of consumer groups, including organizations with different interests and backgrounds, such as Public Knowledge, OpenMedia, Communications Workers of America, National Hispanic Media Coalition, United Church of Christ, OC, Inc., among others, sent a letter to the FCC urging the Commission to reconsider its proposed classification or, in the alternative, to defer it until a new Public Notice is published that can answer several open issues.
The letter alleges that classifying text messages as Title I would definitively “deprive the Universal Service Fund…of billions of dollars in contribution-eligible revenue at a time when the existing contribution pool continues to decline alarmingly.” The question whether texting revenue should be subject to USF contributions has been in the air for years, and now the FCC’s proposed classification could clarify that, as an information service, text messaging is not subject to it. For the consumer groups, “it would be arbitrary and potentially reckless to classify texting as an information service without considering the impact of the decision.”
Also, the consumer groups allege that the “definitive classification of texting as an information service could even make the problem of blocking spam worse. By classifying texting as being the same as email, the proposed classification order could actually be interpreted to remove texting from the anti-robocalling statute, the Telephone Consumer Protection Act of 1991 (TCPA).”
However, with regard to the TCPA, the draft Declaratory Ruling expressly clarifies that the TCPA prohibition against unconsented messages would still be applicable to SMS messages and not impacted by the classification of text messages as an information service. The draft determined that, for purposes of regulatory treatment, there is a significant difference between being subject to a Commission regulation, such as the TCPA, and being subject to per se common carrier regulation under Title II of the Communications Act. Therefore, under the proposed new classification, SMS and MMS wireless messaging will be Title I services, but will continue to be subject to the Commission’s applicable TCPA rules.
The signatories of the letter are not convinced. They allege that despite the clarification contained in the order, spammers and robocallers would get “a second bite at the apple to challenge this ruling.” They argued that “it is not clear that the Commission’s simple assertion that an information service such as SMS can still be classified as a ‘telephone call’ under the TCPA is sufficient to survive a new challenge brought by robotexters.”