Free Press Slams FCC Chairman Pai’s Plan to Deny Nondiscrimination Protections to Text Messaging
On Thursday,
The chairman has scheduled a vote on the issue for the agency's monthly meeting on
Next week's vote comes in response to a request for clarity on the legal status of text messaging filed almost 11 years ago by
The groups at that time urged the
"The Commission has frequently made fatal substantive and procedural errors in its information service classification decisions. It has committed reversible error on numerous occasions, especially when purporting to retain longstanding and vital communications rights while foolishly sweeping away the proper legal framework for such rights.
"Yet before
"The procedural irregularities plaguing this proceeding, the phony justification that the decision would help to combat spam and unwanted messages, and the shoddy legal analysis put forward to support the classification decision, are all alarming. Title II's mandates do not prohibit telecom carriers from honoring their subscribers' wishes to filter out unlawful or even unwanted content.
"What's more, the searingly obvious fact that not every wireless texting service subscriber can afford to or chooses to adopt wireless broadband seemingly escapes the
"As
"These individuals should not be subject to the whims of wireless carriers' decisions to block political messages -- or, in fact, any wanted messages -- when those without broadband cannot simply click over to a different application for their messaging needs."
* * *
To:
Re: WT Docket No. 08-7
Petitions for Declaratory Ruling on Regulatory Status of Wireless Messaging Service
Dear Ms. Dortch:
As any watcher of this agency knows, including the appellate courts that review its orders, the Commission has frequently made fatal substantive and procedural errors in its information service classification decisions. It has committed reversible error on numerous occasions, especially when purporting to retain longstanding and vital communications rights while foolishly sweeping away the proper legal framework for such rights.
Yet before
The Draft Declaratory Ruling ("Draft") (1) in the above-captioned docket is full of the same kinds of mistakes, errors, and lies that Pai and his team have made their specialty, all delivered with the knowing smirk and feigned concern that serves as the facade for their every utterance.
It is fitting that the final day to submit comments on the Draft falls on the same day as the annual chairman's charity dinner, where for an admittedly good cause Pai will awkwardly fumble his way through a series of jokes to amuse the corporate bar. The Draft's proposed classification of SMS and MMS services is, likewise, a joke. Yet despite the good intentions professed by its very few proponents, it is simply not funny. And it will make no one any better off or happier, save for the telecom carriers writing the script for this unpopular performance.
The procedural irregularities plaguing this proceeding, the phony justification that the decision would help to combat spam and unwanted messages, and the shoddy legal analysis put forward to support the classification decision, are all alarming.
The Poorly Reasoned Draft Appeared Out of Nowhere, Based on a Stale Record.
There is no time limit of which we are aware on Commission response to requests for declaratory ruling. Nor is there a set requirement on the record the Commission must compile to act on such requests. Even acknowledging the flexibility the agency has in such matters, the timing and process for the proposed decision are unwise at best and inexplicable at worst.
The Commission opened the above-captioned docket nearly eleven years ago in response to a Petition for Declaratory Ruling submitted by Public Knowledge,
As the Draft barely recounts, the Petition was prompted by harmful decisions like the one made by Verizon in 2007 to unreasonably discriminate against its customers' communications - and to do so based solely on the content and viewpoint of their speech. At that time,
A cursory review of ECFS shows the docket contains more than 1,200 submissions as of today. Yet just a few more than thirty of those came in 2018. Several hundred from 2016 and 2017 appear to be comments supporting Net Neutrality and Title II classification of broadband internet access services rather than text messaging services. And the Commission offered no guidance after
The sole clue as to the prompt for the Commission's headlong rush to the wrong decision now is a wireless lobby filing posted just two days before the Draft appeared. (4) That filing claims, erroneously (see below), that "a telecommunications service classification would upend wireless providers' active management . . . successfully restricting a torrent of unwanted messages." (5)
This claim is patently absurd on the law and the facts. Yet it is essentially the only show of support for the Commission's proposed course of action now, some eleven years after the Petition was originally filed and almost half a decade after the majority of the record evidence came in. The Commission should have at least sought further comment before launching this sneak attack on people's rights to nondiscriminatory telecommunications services, having failed to see the wisdom of proposing a proper telecom services classification decision on the (now stale) record it has compiled to this point.
The Draft Fails Utterly to Demonstrate the Need for an Information Service Classification When It Comes to Permitting Preventive Measures for Spam and "Robotexts."
Never shying away from Orwellian double-talk, this Commission casts its proposed decision in the Draft as one "helping consumers" by allowing carriers to "incorporate[e] robotextblocking, anti-spoofing measures, and other anti-spam features into their offerings." (6) Of course, as public interest commenters have pointed out repeatedly since learning of this sham justification for the Draft, "Title II classification does not prevent carriers from using technological means to block unwanted texts or robocalls." (7) In short, Title II's mandates do not prohibit telecom carriers from honoring their subscribers' wishes to filter out unlawful or even unwanted content.
While the "reasonable network management" exception language familiarized by the Commission's Open Internet proceedings is not a precise analogue to TCPA language more relevant here, the concept is the same. Thus, as the Commission properly declared in 2015, "nothing in the Communications Act or our rules or orders prohibits carriers . . . from implementing call-blocking technology that can help consumers who choose to use such technology to stop unwanted robocalls." (8) Just so here.
This Commission and this Draft nonetheless rest on the claim that the current regulatory limbo in which text messaging services reside has allowed carriers to keep wireless messaging a "relatively spam-free service," with the "spam rate" estimated at just 2.8 percent. (9) But what was the terrible fate destined to befall text messaging if the Commission had come out the other way on the classification question? Why, the same fate besetting email, of course, where (according to wireless industry trade groups) "the spam rate . . . is estimated at over 50 percent." (10) Of course, email is the quintessential information service - demonstrating with the Commission's own example more neatly than one could even hope that an information service classification is neither necessary nor sufficient to give users the rights and the tools needed to block unwanted messages.
The Commission's Shoddy Legal Reasoning Fails to Account for the Potential Differences Between Carrier's Text Messaging Services and Over-the-Top Message Services. Other public interest commenters have detailed the flawed legal analysis the Draft embraces, which unsurprisingly mirrors the misinterpretations and outright ignorance of the law on display in this Commission's broadband reclassification decision issued a year ago. (11) The Commission's attempts to once more read certain definitions out of the Communications Act fare no better now than they did in
Once again, the Commission purposefully conflates the transmission of information of the user's choosing, with no net protocol conversion or change in that information as sent and received, with an information service that still must (on a proper read of the statutory definitions) be made available via telecommunications. (12)
In other words, the use of a telecommunications service to access other information or information services is not just unsurprising, it is the very definition of what a telecommunications service makes possible: "transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." (13)
The Commission also engages in the same fallacious arguments it honed in the Open
Internet repeal to deny the reality that text messaging services are "interconnected" commercial mobile services. The Draft invents and inserts words into the statute, then posits incorrectly that since not all interconnected devices can receive text messages, the service is somehow not truly interconnected with the public switched network. (14)
Yet another failing in the Commission's legal reasoning, if it can be called reasoning, is the utterly indefensible choice to obscure the differences between (1) text messaging services (and indeed all text or voice transmission services) that exclusively utilize ten-digit telephone numbers (15) and (2) "over-the-top" or other integrated wireless messaging services that may utilize broadband connections and IP-enabled technologies.
For one thing, no matter how strenuously the
What's more, the searingly obvious fact that not every wireless texting service subscriber can afford to or chooses to adopt wireless broadband seemingly escapes the
Yet not everyone even has that option of switching to such other services. As
Title II, with its telecom services classification appropriate for text messaging services, safeguards people's rights to just, reasonable, and nondiscriminatory communications services. While this Commission has time and again shown its willingness to deprive people of those congressionally granted rights, the falsehoods and flawed arguments the Draft employs to attempt that repeal here do not withstand scrutiny.
Respectfully Submitted,
/s/
Policy Director
(202) 265-1490
Footnotes:
1. Petitions for Declaratory Ruling on Regulatory Status of Wireless Messaging Service, WT Docket No 08-7, Declaratory Ruling,
2. Petition for Declaratory Ruling of Public Knowledge,
3. See Letter to Chairman
4. See CTIA Ex Parte Presentation, WC Docket No. 18-28, WC Docket No. 17-59, WT Docket No. 08-7, CC Docket No. 95-155 (filed
5. Id. at 5.
6. Draft 2.
7. Public Interest Letter at 2 (citing Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Declaratory Ruling and Order, 30
8. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 152.. 9. Draft 12.
10. Id.
11. See, e.g., Letter to
12. See 47 U.S.C. * 153(24); id. * 153(50); id. * 153(53).
13. 47 U.S.C. * 153(50).
14. See id. at 4 ("The fact that not all users of the PSTN may employ voice- or text-capable handsets does not mean that the underlying service is not 'interconnected with the public switched network[.]' By the Commission's logic, simply attaching a credit card reader to a landline telephone transforms the underlying PSTN into an information service for the purpose of that device's use.") (citations omitted).
15. See Draft 11.
16. See id. 47.
17. Id. 46.
18. See generally
19. See, e.g., id. at 3.
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