Key players in the U.S. wireless industry squared off against public interest groups and providers of mobile texting services in filing comments with the FCC addressing a request to define mobile messaging services as telecommunications services pursuant to Title II of the 1934 Communications Act. The comments were filed this week in response to a petition for declaratory ruling submitted to the FCC in August by Twilio, Inc., a provider of cloud-based voice and text message services. Arguing that wireless text message services qualify as telecommunications services under judicial and FCC precedent, Twilio claimed in its petition that wireless carriers engage in a variety of discriminatory and anti-competitive practices against text message providers that cannot be adequately addressed without a decision by the FCC to reclassify mobile messaging services under Title II .

Voicing support for the petition, Public Knowledge, Common Cause and Free Press advised the FCC in joint comments that mobile text messaging “fits the statutory definition of telecommunications” as evidenced by “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 joint commenters warned the FCC that “the status quo harms consumers, competition and innovation by giving carriers free rein to abuse their gatekeeper position.” Foursquare Labs, Inc. complained that, this year, “carriers have begun blocking more and more text message traffic,” which has resulted in “periods where Foursquare has seen 100% of messages being blocked by certain carriers.” (In its comments, Foursquare explained that it uses text messaging “to confirm user identity on mobile [platforms] as well as send users contextually relevant content about places near a user.”) Foursquare’s sentiments were echoed by Remind101, Inc., a provider of specialized text messaging services to teachers, students and parents which stated that “current carrier practices of contextually filtering messages, applying arbitrary rules on traffic balance, volumetric filtering and blacklisting of telephone numbers are causing irreparable harm.”

Wireless association CTIA countered, however, that wireless provider messaging practices “are designed to protect consumers, not harm them” and that a grant of the petition would thus “invalidate . . . measures that prevent massive quantities of unlawful and unwanted mobile messaging spam from reaching and harming consumers.” As CTIA declared Twilio’s request to be “wrong on the law,” AT&T termed the petition as “fundamentally flawed” because wireless text messaging services “are statutorily protected from Title II regulation—both because they are private mobile radio services under Section 332 and because they are classic information services . . . that offer computer-based storage, retrieval and net protocol conversion capabilities.” Observing that “mobile messaging—like email—is a store-and-forward service” in which “messages are stored by the service while the recipient device is located,” Verizon asserted that, because “the Commission has long correctly classified email as an information service for that very reason, mobile messaging is therefore an information service as well.”