On December 12, 2018, the Federal Communications Commission (“FCC” or “Commission”) adopted a Declaratory Ruling that finds Short Messaging Service (SMS) and Multimedia Messaging Service (MMS) are “information services” under the Communications Act and that these services are not “telecommunications services” or “commercial mobile services”. As a result, SMS/MMS won’t be subjected to the regulatory burdens that apply to telecommunications and commercial mobile services and, according to the FCC, consumers will be able to continue benefiting from measures put in place by SMS/MMS providers to block unwanted text messages.
Seems like a win-win situation, right? Not to Public Knowledge (an advocacy group) and Twilio (a mass-texting service provider) who both filed petitions for the FCC to classify these messaging services as telecommunications services and commercial mobile services that are subject to more burdensome common carrier regulations under Title II of the Communications Act. Both believe such classifications are necessary to prevent wireless messaging providers from having too much say in what kinds of messages they can block. The Declaratory Ruling rejects this belief and the petitions filed by Public Knowledge and Twilio in 2007 and 2015, respectively.
To understand why these classifications matter from both perspectives, we have to delve a bit into the Communications Act of 1934 (the “Communications Act”).
“Telecommunications service” and “information service” (and “commercial mobile service,” but we won’t get too much into that here) are defined as mutually exclusive under the Communications Act. Whether a particular service fits into a particular definition determines which other requirements under the Communications Act, and the FCC’s corresponding rules, will apply to providers of that service.
Here’s why this matters in the SMS/MMS context: the Communications Act has been interpreted to generally prohibit providers of telecommunications services from blocking messages (typically voice calls) sent across those services. The same prohibition would not apply to messages sent across information services.
Now that you know what’s at stake, let’s take a look at how the FCC applied the definitions of telecommunications service and information service with respect to SMS/MMS. In a nutshell, telecommunications is the transmission of information of a user’s choosing without making any changes to the form or content of the information. An information service, on the other hand, allows the user to store, retrieve, process, utilize and transform (among other features) information via telecommunications. (Take a look at the Communications Act if you’re interested in seeing the full definitions.)
To support classifying SMS/MMS as information services, the Declaratory Ruling finds that the basic features of these services fit squarely in the definition. With SMS/MMS, messages are stored and can be sent and retrieved at a later time, unlike communicating with someone via cellphone or landline, which requires answering a call immediately and talking in real time. Additionally, the FCC highlights that SMS/MMS involves transforming and processing capabilities, such as where wireless providers format messages based on a user’s phone capabilities. Overall, the Commission finds when looking at the “integrated finished product,” that SMS/MMS are more suitable to be considered information services.
So why not classify SMS/MMS as a telecommunications service? As Twilio pointed out, the FCC itself previously determined that a text message is considered a “call” for purposes of the Telephone Consumer Protection Act (TCPA); therefore, wireless messaging is already subject to regulations applicable to other telecommunications services. However, the Declaratory Ruling rejected that argument as well as others presented by Twilio. According to the Declaratory Ruling, the capabilities of the service are what really counts. In this case, the information processing and other capabilities of SMS/MMS go far beyond the basic transmission of information that is considered telecommunications. The fact that wireless messaging service is typically intertwined with mobile voice service did not persuade the Commission that the two services should be regulated in the same manner.
While Chairman Pai, and Commissioners Carr and O’Reilly declared the Declaratory Ruling as a “win” for consumers, Commissioner Rosenworcel vehemently voiced her opinion that the “decision offers consumers no new ability to prevent robotexts. It simply provides that carriers can block our text messages and censor the very content of those messages themselves. Calling this decision anything else is just doublespeak.”