Wireless Carriers Oppose Twilio Title II Bid; Consumer Groups, Others Supportive
Parties voiced mixed opinions on a Twilio petition asking the FCC to clarify that messaging services should be regulated under Title II of the Communications Act (see 1510130040). In comments in FCC docket 08-7, AT&T, CTIA, Verizon and a few others opposed the petition and said a Title II declaration would be bad policy, legally wrong and harmful to wireless consumers. AT&T said granting the petition would open the "floodgates" to unwanted text messages, the “very harms” that the FCC has tried to combat through other actions such as a Telephone Consumer Protection Act ruling in June (see 1506180046).
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Some consumer groups and various others supported the petition. “The status quo harms consumers, competition, and innovation by giving carriers free rein to abuse their gatekeeper position,” said Public Knowledge joined by Common Cause and Free Press. “Discriminatory text message blocking by the carriers not only raises competitive concerns, but also interferes with free speech rights. Even with the rise of over-the-top messaging services, text messaging remains a uniquely important communications mechanism, with particular significance owing to its universality, verifiability, importance to public safety and government functions, and its ubiquity as a fallback communications medium available to all mobile phone users.”
The Voice over the Net Coalition agreed that “wireless carriers have unreasonably disadvantaged non-carrier messaging services,” but it didn't support a classification decision now. “Instead, the Commission should use its existing authority over wireless and broadband networks, employing its available existing enforcement,” VON said. Replies are due Dec. 21.
CTIA said Twilio framed its petition as intended to curb “blocking” and “throttling” of messaging traffic. “But in fact,” the wireless group said, “Twilio is asking the Commission to invalidate consumer protection measures that prevent massive quantities of unlawful and unwanted mobile messaging spam from reaching and harming consumers.” CTIA said wireless carrier messaging practices were designed to protect consumers, the value of which it said Twilio had previously recognized. “Its call to subject mobile messaging to Title II common carriage requirements is the wrong policy and wrong on the law,” the group said. “At its core, Twilio’s request is for the Commission to require mobile operators to cease using spam filters and to instead deliver every message that seeks to defraud, trick, and abuse end-user customers.” CTIA said the "regulatory maneuvering" served Twilio's interests because under the company’s business model, the more traffic it sends, the more profit it generates.
Verizon said the messaging market flourished without regulatory burdens. Users are sending tens of billions of messages daily, switching among wireless carriers and over-the-top application providers, and seeing "little, if any, messaging spam on their mobile devices," the carrier said. “That stands in stark contrast to the overwhelming scourge of email spam, as well as the robocalling that still plagues telephone customers” despite congressional and FCC efforts, it said. Wireless industry best practices had effectively protected consumers from messaging spam, but despite that, Twilio wanted to upend the status quo and impose Title II on wireless carriers, Verizon said. “That is a solution in search of a problem and would open the floodgates to spam, harming consumers,” it said. “Wireless providers would face customers’ ire at the new spam flooding into their mobile devices. ... Although Twilio seeks to create an unequal playing field among messaging providers, with over-the-top providers exempt from Commission regulation and free to continue operating under the industry-generated guidelines to protect their users from spam, its arguments in favor of classifying wireless providers’ messaging service as a common carrier service apply equally to over-the-top providers’ services.”
Public Knowledge and others said the FCC legal path to Title II is straightforward. “Text messaging fits the statutory definition of telecommunications, and recognizing it as such is consistent with precedent,” they said. And it's CMRS, "which means it must be treated as a common carriage service," they said. "Text messaging is legally and factually distinct from newer over-the-top messaging services, whose regulatory status this petition would not affect.”
CallFire said the FCC should grant the petition on an expedited basis. “In contrast to the sporadic incidents of traffic blocking that led the Commission to adopt its Open Internet rules, CallFire and its subscribers of messaging services face wireless carrier blocking every day,” it said. “In the absence of the Commission expressly bringing messaging services into the Title II framework, the wireless carriers have used their monopoly power over their end users to stifle innovation and competition. For no other means of communication has such unfettered carrier blocking been allowed to occur."
ClearCare, Foursquare Labs, HeyWire, NexGen Global Technologies, Peach Labs, Polaris, Remind 101, Showingtime, Trek Medics International and Zillow were among other parties supporting the petition. Others opposing the petition were the American Consumer Institute, DoSomething.org, Voxiva and Zipwhip.