The Federal Communications Commission (“FCC”) is weighing the benefits of protecting SMS text messaging under Title II of the Communications Act of 1934, often referred to as the Open Internet rules, versus continuing to protect consumers from a potential bombardment of unwanted texts.  If the FCC reclassifies SMS text messaging as a common carrier service under Title II, it will impose net neutrality rules, which would prevent Internet providers from blocking or throttling text message traffic.  Twilio, a company that provides mass texting services to businesses, has been fighting for the FCC to clarify that texts should be regulated under the Open Internet rules.  Wireless industry players have recently responded that the change would hurt consumers.

Twilio provides services that allow customers to text with businesses, but its messages have repeatedly been blocked by wireless carriers.  According to Twilio, wireless carriers are simply leveraging their monopoly connections to increase the price of text messaging.  Twilio has been able to point to a recent study indicating that users overwhelmingly prefer text messages when communicating with brands.

Since Twilio first asked the FCC to unambiguously declare text messaging services as Title II services in August 2015, wireless carriers have opposed the change on the grounds of consumer protection.  Wireless carriers point out that they have reduced SMS spam significantly from its peak levels in 2012, and block hundreds of millions of spam text messages daily. The CTIA, an association of wireless carriers, has accused Twilio of “serving as the conduit for spam” and warned of subjecting Americans' smartphones “to the same degree of frivolous and exploitive content that many Americans’ email inboxes are subject to today.”

Companies like Remind, an automated text messaging service used by schools to communicate with students and parents, and Nomorobo, a service that blocks unwanted texts, have joined Twilio’s push to put text messaging under net neutrality rules.  If they are successful, wireless carriers will no longer be able to block text messages as spam.  The companies argue that wireless carriers are illegally blocking messages that users have solicited.  The companies also argue that customers can implement and customize their own spam blocking measures.  By contrast, last month, the CTIA noted that text messaging remains a trusted communications medium precisely because wireless service providers “have actively managed their platforms to protect consumers from spam or nuisance messages.”  The new Chairman of the FCC under President Trump, Ajit Pai, has indicated that he is generally opposed to net neutrality rules.