On December 12, the Federal Communications Commission’s (“FCC” or “Commission”) three Republican Commissioners were in a self-congratulatory mood for standing with consumers against unwanted robotexts by classifying text messaging as a Title I service, but did the Commission’s classification decision really mark a major TCPA victory for consumers? Probably not. As Sekoia Rogers detailed on CommLawBlog, the FCC’s decision clarifies the regulatory classification of SMS and MMS messages under Title I of the Communications Act. Yet, instead of focusing on the legal or policy rationales for its classification decision the FCC chose to focus on the TCPA benefits of treating text messages as a Title I information service. So what does the Commission’s decision accomplish from a TCPA standpoint?
The FCC has long avoided classifying text messages as either an information service or telecommunications service (Title II) under the Communications Act. This ambiguity allowed wireless providers wide latitude to block spam texts without running afoul of the FCC’s prohibitions on blocking that apply to telecommunications services. Because of this ability to block texts that are likely spam, users have apparently experienced fewer issues with unwanted text messages as compared to voice robocalls. Chairman Pai highlighted this when he noted that consumers open 98% of text messages they receive (90% of which they open immediately).
The Commission’s decision comes in response to two petitions filed by Public Knowledge (with a group of other public interest organizations) and Twilio in 2007 and 2015, respectively. The petitioners asked the Commission to classify SMS and MMS messaging as a telecommunications service under Title II of the Communications Act.
This FCC decision arrives at an interesting time, especially given the apparent success of the status quo. The Commission is currently allowing telecommunications service providers more leeway to block likely robocalls and wireless carriers have been actively blocking spam texts for some time. Therefore, it seems plausible that the Commission could have classified text messages under Title II and still allowed carriers to continue blocking spam texts. At most, the Commission’s classification of text messaging as an information service gives providers no new authority to block spam text messages. Thus, the FCC probably could have achieved the same result by making no decision at all.
While this decision is getting some press for its supposed TCPA impact–protecting text messages from spam–the far bigger impact could be the precedent established by the Commission’s analysis of what constitutes an information service. As Public Knowledge pointed out in an ex parte letter to the Commission after publication of the draft Declaratory Ruling, the FCC’s analysis of what qualifies as an information service in the text message context leaves increasingly little space for any modern communications service to be classified as a telecommunications service (arguably none according to Public Knowledge). Viewed in that light, the Commission’s text messaging classification is perhaps a reflection of the current Commission’s inclination to classify services as information services.
Commissioner Rosenworcel elucidated on the seeming incongruity between the status quo for text message providers and the FCC’s insistence that its decision was necessary to fight unwanted spam texting. Calling the decision “doublespeak,” she described the decision as a victory for corporate interests’ desire to control consumer’s access to information and compared the decision to the FCC’s 2017 rollback of net neutrality protections.