On November 21, 2018, the FCC released a proposed declaratory ruling announcing its intent to formally classify text-messaging services as information services, rather than telecommunications services, claiming that such a move would allow phone companies and carriers to better protect consumers from receiving spam messages and implement technologies to prevent message spoofing. The decision, however, raises several critical themes that echo the years’ old fight over net neutrality; themes that could be important for companies engaged in legal text message marketing to consumers across the nation.
Indeed, the text message classification dispute has been before the FCC for years, dating all the way back to a 2007 petition from Public Knowledge and a 2015 petition from Twilio, both of which proposed classifying text messages as “telecommunications services” and “commercial mobile services” as those terms are defined in the Communications Act. Now, however, contrary to Public Knowledge’s and Twilio’s petitions, the FCC will consider at its December Open Meeting a Declaratory Ruling that would instead classify Short Message Services (SMS) and Multimedia Messaging Services (MMS) as information services.
Pursuant to the draft Declaratory Ruling that the Commission has made available, the FCC will declare that SMS and MMS messages are information services, not telecommunications services, under the Communications Act, and that they are not commercial mobile services, nor their functional equivalent. According to the Commission, this decision will remove regulatory uncertainty, empower providers to continue protecting consumers from unwanted text messages, and foster further innovation and investment in messaging services.
With respect to the TCPA, the draft Declaratory Ruling expressly clarified that the TCPA prohibition against unconsented messages would still be applicable to SMS messages. In doing so, the FCC rejected Twilio’s argument that messaging services must be classified as telecommunications services because the Commission has already held that a text message is a call under Section 227 of the Act. According to the Commission, the decision Twilio references was made merely to clarify the meaning of the undefined term “call” within the TCPA, in order to address the obligations that apply to telemarketers and other callers. To the FCC, that decision neither prohibits the agency from now finding that wireless messaging services are information services, nor does it compel the agency to conclude that messaging is a telecommunications service.
The draft Declaratory ruling determines that, for purposes of regulatory treatment, there is a significant difference between being subject to a Commission regulation, such as the TCPA, and being subject to per se common carrier regulation under Title II of the Communications Act. Only the latter requires classification as a telecommunications service. Therefore, under the proposed new classification, SMS and MMS wireless messaging will be Title I services, but will continue to be subject to the Commission’s applicable TCPA rules.