The Trump Administration Just Killed Net Neutrality for Text Messages

The Trump administration just made it a lot easier for big wireless providers like Verizon, AT&T and T-Mobile to interfere with texting, all in the name of protecting consumers from spam, according Democrats and digital rights groups.

Have you ever signed up to receive text blasts from an activist campaign? Does your doctor’s office text you reminders about upcoming appointments?

The Federal Communications Commission (FCC) voted along party lines on Wednesday to classify SMS and MMS text messaging as a Title I “information service” rather than a Title II “telecommunications service” under federal law, a move that congressional Democrats and digital rights groups say will give wireless providers the power to block and censor text messages and widen the digital divide.

The decision applies to standard texting — the text messaging service that comes with your cell phone plan — rather than apps like WhatsApp or Facebook Messenger that require data or a wi-fi connection.

The move follows a long list of deregulatory decisions by the FCC under President Trump, who installed a Republican majority on the commission after taking office. The FCC also reclassified the internet as a lightly-regulated “information service” in order to ditch popular net neutrality rules aimed at preventing telecom companies from blocking or playing favorites with legal web content.

Jessica Rosenworcel, the lone sitting Democrat at the FCC, noted in her dissenting statement that the vote to classify text messaging comes on the one-year anniversary of the net neutrality decision, and she is “not celebrating.”

“That means your carrier now has the legal right to block your text messages and censor the very content of your messages,” Rosenworcel said on Wednesday. “If that sounds familiar, it should. This agency did the same thing with Internet service last year.”

Ajit Pai, the Republican FCC chairman appointed by President Trump, has framed the new classification for text messages as an effort to protect consumers from “spam and robotext messages.” Critics say it’s a thinly veiled handout to the telecom industry. Telecom companies are eager to prevent their networks from being regulated more like a utility – the way landline telephone service is regulated — that offers an essential service to the public and must treat all the information transmitted on them fairly.

The story goes back to 2007, when NARAL Pro-Choice America established a five-digit “short code” number in order to send text message updates to supporters of women’s rights who voluntarily signed up to receive them. Verizon initially blocked the group’s text blasts on its wireless network, arguing it had a right to keep “controversial and unsavory” content off its network.

The company quickly reversed its decision after media coverage sparked outcry among pro-choice activists, but digital rights groups saw a red flag in the brewing debate over network neutrality. In December 2007, Public Knowledge, Free Press and other public interest groups petitioned the FCC to classify text messages as a Title II “telecommunications service,” or to use another authority to prevent providers from blocking legal text messages.

Verizon’s decision to block pro-choice text blasts was not an isolated incident. In 2010, civil rights groups filed a comment with the FCC noting other incidents of text blast blocking, including a “text to voice” fundraising campaign for earthquake survivors in Haiti that Sprint Nextel shut out of its network in 2010.

At the time, immigrant rights groups were using text blasts to keep supporters nationwide updated about activism around immigration reform and the Dreamer movement to protect young immigrants from deportation. Many activists still use “short code” text blasts to rally their communities and orchestrate get-out-the-vote campaigns, and civil rights activists fear their vast texting networks could be compromised by wireless providers without protection from the FCC.

Under Title II, a telecom service is regulated as a “common carrier” that is barred unreasonable discrimination against information on its network, but similar anti-discrimination language does not exist under Title I, according to Matt Wood, a policy director at the digital rights group Free Press. Advocates fought a long battle to classify the internet under Title II and establish net neutrality, only to have the FCC reverse course after Trump installed Pai at its helm.

With the debate over net neutrality raising so many questions for the telecom industry, the FCC never acted on the 2007 petition to classify text messaging under Title II, until now. Pai, who butted heads with digital rights groups over net neutrality for years, has now placed SMS and MMS text messaging under Title I rather than Title II, dashing any hopes that text messages will have strong legal protection against discrimination by wireless carriers anytime soon.

“This is a decision by this FCC to deny to people protection against wireless carriers interfering with our free speech and our communication,” Wood told Truthout.

Chairman Pai, anti-regulation groups and the wireless industry argue that Title II’s non-discrimination protections would prevent wireless carriers from removing unwanted spam and “robotexts” from their networks. They point to a 2015 petition from Twilio, a Silicon Valley cloud company that offers text-based marketing services, as evidence that spammers want to tie the hands of providers with Title II. Twilio argued that placing texting under Title II would protect innovation, competition and free speech.

However, wireless phone calls are classified under Title II, and digital rights groups say the FCC has already ruled that wireless carriers may block unwanted robocalls despite the “common carrier” classification. The same goes for text messaging over wireless networks. In fact, placing texting under Title I could pull SMS and MMS text messages out from under the jurisdiction of a federal law designed to curb robocalls, according to the digital rights group Public Knowledge.

“Carriers are already fully empowered by this agency to protect consumers from unwanted junk text messages,” Rosenworcel said. “The FCC has made this abundantly clear in prior rulings.”

Wood said that under Title II, wireless carriers like Verizon would still be able to filter out spam messages for consumers, as long as they informed consumers about the filtering and perhaps gave them the option to opt in or out. However, under Title I, wireless carriers can preemptively block texts consumers may want — just like when Verizon shut down NARAL’s pro-choice text blasts in 2007.

Wood said Pai’s concern about spam messages and “robotexts” is a red herring. In reality, wireless providers with text messaging plans are trying to compete with free internet-based texting services like WhatsApp and Facebook Messenger, and they want to be regulated in the same way.

Consumers who can afford lots of wireless data or live in areas where free wi-fi is in abundance can easily choose to switch to an internet messaging app if companies like Verizon and AT&T start blocking SMS and MMS text messages they actually want to send and receive. But what about those who don’t live in areas with free and/or abundant wi-fi?

Wood said there is plenty of research to show that those who are least likely to use mobile internet-based services are low-income people and people of color at every income level. They are also more likely to live in marginalized and underserved communities.

“These individuals should not be subject to the whims of wireless carriers’ decisions to block political messages — or, in fact, any wanted messages — when those without broadband [internet] cannot simply click over to a different application for their messaging needs,” Wood said.

As they voted to approve the resolution, Pai and his fellow Republicans said the new classification for SMS and MMS text messaging was a victory for consumers. Rosenworcel said consumers should be familiar with such evasive language from the Trump FCC, and it makes telling the truth “feel revolutionary.”

“Today’s decision offers consumers no new ability to prevent robotexts,” Rosenworcel said. “It simply provides that carriers can block our text messages and censor the very content of the messages themselves. Calling this decision anything else is doublespeak.”