Commentary

Can Cellphone Companies Censor Text Messages?

By Marjorie Heins

(October 24, 2007) - An incident of private censorship last month highlighted the tremendous power that phone companies like Verizon have over communications today. Verizon blocked a text message from Naral Pro-Choice America to subscribers who had already signed up to receive such messages, on the ground that it might "be seen as controversial or unsavory." Verizon quickly changed its mind after the New York Times reported the story on its front page. Verizon explained that its original decision "was an incorrect interpretation of a dusty internal policy."

But as Free Press's Tim Karr and other 'Net neutrality advocates — including Senators Byron Dorgan and Olympia Snowe — have pointed out, Verizon and other cellphone providers continue to claim the right to block messages they dislike and otherwise discriminate in their provision of services. Karr quotes as an example a section of AT&T's terms of service that allows the company to terminate or suspend your service for any conduct that it believes "tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries."

This is apparently an Internet access policy, but Karr assumes that it applies to cellphone text messaging as well. Indeed, most commentators have assumed that text messaging is more like an Internet service than a telephone service. The New York Times, in an editorial condemning Verizon's action and arguing that it demonstrates the need for 'Net Neutrality, wrote that if Verizon had tried this sort of censorship on "normal phone lines," it "would have been violating common carrier laws that bar interference with voice transmissions." But "unfortunately," the Times went on, "those laws do not apply to text messaging."

I'm not so sure. Under the federal Communications Act, companies providing telephone service are "common carriers" — that is, they must allow the public to use their phone lines on a nondiscriminatory basis. Section 332 of the law specifies that cellphone providers (i.e., companies providing a "commercial mobile service") are common carriers. Text messaging, as a feature of cellphone service, should likewise have common carrier obligations.

But here's where it gets complicated. In a 2005 decision, FCC v. Brand X Internet Services, the Supreme Court affirmed a Federal Communications Commission ruling that cable companies providing broadband Internet access are not "telecommunications services," and therefore aren't bound by common carrier rules. Instead, the FCC said, they are "information services," even though they obviously offer a telecommunications service when they provide access to the Internet. The FCC soon afterward categorized phone company DSL Internet access the same way. And in March of this year, the FCC extended the same logic to Internet access via cellphones. That is, it ruled that wireless broadband Internet access — whether supplied by cellphone or other wireless technology — is an "information service," and thus not subject to common carrier rules.

But where does text messaging fit in? The FCC makes only one passing reference to it in the course of its 47-page opinion on wireless Internet access, noting that some slow-speed wireless technologies "provide customers with access to mobile data applications such as text messaging, e-mail, and ring tone downloads." In a public notice the previous year (relating to e-Rate discounts), the agency simply noted in passing that text messaging is not treated as a "telecommunications service."

In the long run, it may not matter what label text messaging is given. Even on the Internet, as the FCC's March 2007 decision explains, there are some "interconnected services" that are subject to regulation. Interconnected services are basically networks that give subscribers the ability to communicate with all others on the network through the "North American Numbering Plan," telephone being the prime example. Thus, for example, the FCC says, "VoIP" (Voice Over Internet Protocol) has obligations not applicable to broadband Internet access in general. A similar argument can certainly be made for text messaging. According to Verizon's website, one can send and receive text messages via either telephone numbers or email addresses.

This may be why Senators Dorgan and Snowe, even while using the Naral incident as Exhibit A in their ongoing campaign for a 'Net Neutrality law, also wrote to the FCC on October 16, asking it whether "existing constitutional, legal and regulatory limitations" prohibit a cellphone operator "from discriminating against, blocking or otherwise conditioning the sending of messages," based on "the political content of the text message or the political affiliation of the person originating the text message."

The Supreme Court's Brand X decision was a blow to free speech, because it affirmed the FCC's refusal to control the power that telecom companies now have over our daily online communications. The legislation that Dorgan, Snowe and others are pressing to reverse Brand X and secure 'Net neutrality is vitally important, but it may not be necessary to wait for such legislation before limiting the power of cellphone providers. Existing law may already bar them from censoring text messages.

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Update, Oct. 25, 2007: I asked the folks at Public Knowledge for their views on this. They referred me to John Windhausen, a telecommunications policy consultant and former staff attorney for the Senate Commerce Committee, who wrote: "I tend to think that text messaging should be considered a commercial mobile radio service (and thus should be considered common carriage). Here's why: The wording of the FCC's classification is perhaps informative: wireline Broadband INTERNET access. Does text messaging travel over the INTERNET? Is it transferred in IP format through an ISP? I don't think so."

He adds: "I tend to think text messaging would be analogous to a fax. Just because you use your phone line to send data to someone else does not make that transmission a wireline broadband Internet access service. ... Perhaps the FCC's response to Sen. Snowe/Dorgan will reveal the FCC's view."

Other experts that Public Knowledge consulted agreed, writing that SMS text messaging runs on a cellphone company's "proprietary wireless network" and "has nothing to do with the Internet."

Another update, Nov. 14, 2007: Professor Susan Crawford believes that text messaging probably isn't covered by common carrier rules. She explains:

The Communications Act says that commercial cellular providers have to act in a nondiscriminatory fashion to the extent they are providing "commercial mobile services." But "commercial mobile telephone services" are defined as services that are interconnected with the traditional phone network - reachable via dialing a phone number. Arguably, the short codes that the carriers allow people to subscribe to ("send me weather reports daily for $2.99 a month!") are not "phone number" services. They're private numbers controlled by the carrier.

Read her blog on the issue for more detail.

Yet another update, Dec. 11, 2007: A coalition of groups led by Public Knowledge and Free Press has filed a Petition with the FCC asking for a declaratory ruling that there should be no discrimination in text messaging services. See http://www.publicknowledge.org/pdf/text-message-petition-20071211.pdf.

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On the Verizon/Naral incident, see "Verizon's Controversial and Unsavory Record," at ThinkProgress.org; "Verizon's Crocodile Tears Mask a Threat to Democracy" at Save The Internet.com; Tim Karr, "What's the Biggest Threat to Free Speech in America?" in the Huffington Post; and the New York Times editorial, "The Verizon Warning."

On 'Net Neutrality, see Save the Internet.com; Senator Byron Dorgan, "Preserving Internet Freedom"; Marjorie Heins, Net Neutrality on Center Stage.

The October 16 letter from Senators Dorgan and Snowe to the FCC is at http://www.publicknowledge.org/pdf/ds-fcc-letter-20071016.pdf.

For the FCC press release announcing that wireless Internet access is not subject to common carrier requirements, see http://www.cybertelecom.org/ci/wireless.htm. The FCC's full decision is at 22 FCC Rcd. 5901.

On the Brand X decision, see "Two Defeats and a Silver Lining" and Fact Sheets on Media Democracy.