• by Wendy Davis , Staff Writer @wendyndavis, September 23, 2010

T-Mobile has answered EZ Texting's lawsuit by alleging that wireless carriers have no obligation to provide short codes because text messaging is not considered a "telecommunications" service subject to common carrier rules.

In papers filed late Wednesday, T-Mobile says it has "discretion to require pre-approval for any short code marketing campaigns run on its network, and to enforce its guidelines by terminating programs for which a content provider failed to obtain the necessary approval."

EZ Texting alleged last week that its short code was being blocked by T-Mobile because the wireless company objected to one short code user's Web site -- www.legalmarijuanadispensary.com -- which offered information about obtaining medical marijuana in California and other states.

T-Mobile responded by saying it has the right to block EZ Texting's short code because no law prohibits that. T-Mobile adds that it had good reason to take action, alleging that EZ Texting applied for a short code for a text messaging campaign that would inform people about events at bars, but then used the short code for a different campaign.

"EZ Texting never submitted that new campaign for T-Mobile's prior review and approval, even though prior approval is required for all short code messaging campaigns provisioned by T-Mobile, and by every other carrier that provides such services, as recommended by the industry trade group, Mobile Marketing Association," T-Mobile alleges. "On that basis, T-Mobile unilaterally decided to terminate network access."

Even though EZ Texting and T-Mobile are caught up in litigation, advocacy groups say that this issue needs to be dealt with by the Federal Communications Commission, not the courts. Because the FCC hasn't classified text messaging services as either telecommunications services or information services, text messaging is in a state of "legal limbo," says Chris Riley, policy counsel at the advocacy group Free Press.

The result, he says, is that texting isn't necessarily subject to common carrier rules. In that case, there's a very real danger that wireless carriers could ban companies from running text messaging campaigns that the carriers deem inappropriate -- as happened three years ago, when Verizon Wireless refused to allow abortion rights group NARAL Pro-Choice to use a short code to reach members who had signed up for text messages.

Verizon reversed its decision, but Free Press and Public Knowledge both asked the FCC to declare that carriers in the future can't block short codes based on content. The groups are now repeating their call for the FCC to act.