Petition Before The FCC To Recognize Text Messaging As A Telecommunications Service Under Title II Of The Communications Act Heats Up

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On April 26, 2016, the Secretary of the Federal Communications Commission (“FCC”) released the FCC’s list of ex parte presentations, disclosing that Twilio had conducted an ex parte meeting with FCC staff to discuss its pending petition that requests the FCC to recognize text messaging as a telecommunications service under Title II of the Communications Act, WT Docket No. 08-7.

Twilio is a cloud-based communication software company headquartered in San Francisco that provides a platform for companies to use for consumer communications.  In support of its petition, Twilio filed additional comments with the FCC in November 2015 and a letter in February 2016.  Twilio explained that express classification by the FCC of text messages as a common carriage service is necessary to stop telecommunications carriers from continuing to “abuse their gatekeeper position” by discriminatorily blocking text messages.  Twilio distinguished the text messaging for which it is advocating—SMS, MMS, and short code messaging—from “over-the-top” messaging services that are available over the internet.

Twilio emphasizes that under the current regime, businesses are harmed because their text messages are being blocked, so they cannot rely upon “this basic communications medium.”  Twilio points to the universality of text messaging and its role in government and public communications.  For example, carriers can block text-to-donate for charities based on vague commercial considerations as well as block text messages from some political candidates. 

Twilio explained that its request is aligned with the practical treatment of text messages, where text messages are already bundled and sold with other common-carrier telecommunication services, such a phone calls.

Various state Attorneys General and common carriers have opposed Twilio’s petition.  They argue that the classification will subject consumers to increased unwanted commercial and marketing text messages.  However, the FCC already has a broad consumer protection law in place to address this issue through the Telephone Consumer Protection Act (“TCPA”), which it fortified in July 2015 by issuing a declaratory ruling and order that adopted many broad pro-consumer expansions of the interpretation and application of the TCPA to text messaging.

The FCC recently requested additional public comments to “refresh” its understanding of the issues presented by Twilio’s petition.  It is anticipated that the FCC will address the petition soon.  If the FCC issues an unfavorable decision, Twilio may file a petition for reconsideration with the FCC. 

Reporter, Julie A. Stockton, San Francisco, + 1 650 422 6818, jstockton@kslaw.com.

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