Amid Allegations of Doublespeak, FCC Clarifies Texts as a Title I Service

Commissioner Jessica Rosenworcel accused FCC colleagues of regulatory “doublespeak,” in a decision clarifying text messages are a lightly regulated Communications Act Title I service. Members approved the declaratory ruling 3-1 over her dissent, as expected (see 1812050019). Commission staff couldn't identify any instances where lightly regulating wireless texting would have better prevented spam, and groups that generally back regulation cried foul. Members separately approved a reassigned number database order targeting some unwanted robocalls, with safe harbor from liability (see 1812120026).

Chairman Ajit Pai said the order will give carriers tools to fight spam. He slammed the “rhetoric” of opponents. A year after the FCC voted 3-2 to overturn 2015 net neutrality rules, the discussion brought back some of that fight's fiery rhetoric.

”It feels like this agency is becoming part of the problem” of doublespeak, Rosenworcel said. “We twist the law to reach the conclusion that you no longer have the final say on where your text messages go and what they say,” she said. ”That means your carrier now has the legal right to block your text messages and censor the very content.”

Commissioner Brendan Carr fired back that the ruling codifies the status quo. “None of that matters to those interested in the partisan politics of dissent,” Carr said. “They describe this decision as radical and Orwellian.” Such “false and apocalyptic rhetoric is simply standard fare for this crowd,” he said.

Text messaging is clearly not a Title II common-carrier service, said Commissioner Mike O’Rielly. “Wireless providers and their customers deserve the certainty, flexibility and regulatory environment afforded to Title I services in order to avoid new burdens on existing services and invest, innovate and deploy the next generation of text messaging services,” he said.

“This decision is right on the law -- just read the declaratory ruling’s painstaking analysis of the statutory terms and the nature of text messaging and you’ll understand why,” Pai said. “It’s also sound policy.”

Public Knowledge slammed the vote. “There is a reason why carriers are applauding while more than 20 consumer protection advocates … have cried foul,” said Harold Feld, PK senior vice president. “This decision does nothing to curb spam, and is not needed to curb spam.”

Reclassification “will do nothing new to protect consumers from unwanted robotexts,” said Jonathan Schwantes, Consumer Reports senior policy counsel. “The Commission already made it explicitly clear in 2015 that phone companies can and should take action to protect consumers from these types of unwanted text messages.”

CTIA credited the order with “protecting consumers from an avalanche of messaging spam." The decision “is the right one from both the technology and policy perspectives,” said Will Johnson, Verizon senior vice-president-federal regulatory and legal affairs. “This important action will ensure that consumers continue to enjoy this trusted platform, while giving providers the flexibility they need to aggressively fight spammers.”

The spam rate for texts is under 3 percent, said Zipwhip CEO John Lauer. "That is because texting providers such as my company… are able to monitor for and subsequently block fraudulent messages,” he said. “In any given month, we will toss out more than 20 percent of texting traffic due to fraudulent messages such as loan scams, fake credit card alerts and false bank notices.”

Though Twilio lost its push for a common-carrier designation for texts, the outcome was as expected, said Sanford Reback, vice president-global public policy and government affairs: “Twilio looks forward to working with the FCC and all players in the communications ecosystem to safeguard fundamental consumer interests.”

“Twilio boasts of meeting its goal to send a billion messages in 10 years in half the time,” said Roslyn Layton, visiting scholar at the American Enterprise Institute. “Instead of having the FCC ruin a service consumers enjoy by denying mobile operators the ability to filter spam, it can encourage its partners to engage in the desirable communication that consumers want.”

Sen. Ed Markey, D-Mass., criticized the declaratory ruling, planning "legislation to rescind this order and establish appropriate safeguards.” The FCC's action stifles “free speech by giving telephone carriers the freedom to block any text message they wish, potentially harming competition and our democracy,” he said.

Meeting Notebook

Commissioners adopted a communications market report, which consolidates a variety of reports into one to fulfill Ray Baum's Act mandate (see 1811210032) (see here), though some suggested changes in subsequent reports. Pai called the report “a destination for one-stop shopping,” and said it's an opportunity for an overview of actions the agency has taken over the past two years to promote competition and reduce market entry barriers. Rosenworcel -- who concurred -- called it a missed opportunity by lacking analysis of where various industries are headed. “We only have a backward-looking story,” she said. She said it “doubles down” on flawed data and there need to be new looks at data gathering techniques, such as crowdsourcing for broadband and wireless service mapping. She said it lacks details that had been in previous reports, such as discussions of how data caps and zero rating affect video viewer habits. O’Rielly hopes future reports won’t “be as siloed” by technology and regulatory regime and could, for example, delve into increased competition between mobile and fixed broadband providers and their different regulatory burdens. Public Knowledge Senior Policy Counsel Phillip Berenbroick said the report is a “Herculean” task showing a market in a sorry state, with cable pricing rising faster than inflation, few if any consumer choices in broadband providers and heavy concentration and significant barriers to entry in the wireless market. He said FCC decisions such as allowing conditions on Comcast’s buy of NBCUniversal to expire exacerbate many of these issues.

Pai said it’s unclear when the FCC will hold a Mobility Fund Phase II auction in light of the investigation of whether top wireless carriers submitted incorrect coverage maps (see 1812070048). “Until that investigation is concluded, we can’t give a forecast in terms of timing,” he said. The importance of the MF-II program “continue[s] to be clear,” he said. “Wireless service is very important for many Americans, especially when it comes to things like public safety.” The chairman said the FCC is working on an NPRM that proposes to bar use of money in any USF program to buy equipment or services from companies that “pose a national security threat” to U.S. communications networks or the communications supply chain. Commissioners approved the NPRM 5-0 in April (see 1804170038). “There are serious national security issues at stake in this proceeding,” Pai said. “We are continuing to get feedback.”

The FCC’s Broadband Deployment Advisory Committee has been “helpful” in some areas, O’Rielly said after the FCC meeting. Pai said last week he will charter the group for another two years and ask it to address additional issues, including resiliency during and after disasters and deployment in low-income areas (see 1812070050). “They were aggressively trying to find compromise,” O’Rielly said. “It didn’t exactly happen in every single place.” O’Reilly said he wasn’t aware before the announcement the group would get two new assignments. Carr, who spent 48 hours with telecom crews in Florida after Hurricane Michael (see 1811060055), said BDAC should examine some of the logistical problems he found. Rosenworcel noted that former BDAC Chair Elizabeth Pierce was indicted on charges of investment fraud (see 1804130055). “On a going-forward basis, I am just going to ask that there are no criminals at the helm of our committees,” she said. BDAC also had too few members from the public sector, Rosenworcel said. “It was dominated by industry,” she said. “If we want BDAC to be a productive forum it needs to be a balanced forum.”

Rosenworcel suggested the FCC was hiding something, given its refusal to investigate millions of fake comments in the 2017 net neutrality proceeding. Of about 24 million filings, 9.5 million used stolen identities, which is a federal, and often state, crime, she said: "We need to figure out what's happening." Noting another half million came from Russian email addresses, she asked, "What is going on?" The docket is "flooded with fraud" and "it's an embarrassment" that the FCC hasn't investigated, she said. An agency spokesperson declined comment.