• by Wendy Davis , Staff Writer @wendyndavis, November 30, 2022

Four years ago, when the Federal Communications Commission was led by Republican Ajit Pai, the agency rejected consumer advocates' request to prohibit wireless carriers from suppressing text messages.

Instead, the FCC voted 3-1 to classify text messaging as an “information” service -- a move that theoretically allowed wireless carriers to block texts arbitrarily. That's because “information” services aren't subject to the same long-standing common carrier rules as “communications” services, such as telephone calls. Those rules broadly prohibit carriers from engaging in censorship when putting through phone calls.

Pai said at the time that the information-service classification would allow carriers to block robotexts. But consumer groups and Senate Democrats countered that a 2016 FCC ruling allows telephone companies to block robocalls, even though phone calls are normally subject to common carrier rules.

The advocacy group Public Knowledge, which has long urged the FCC to declare texting a communications service (regulated under Title II of the Communications Act) is now reiterating that request.

“Concerns about unjust blocking, discrimination, and throttling are deeply troubling, and highlight the need for Title II classification,” the group wrote in a recent filing with the agency.

The organization's filing came in response to the FCC's request for comments about a proposal to require carriers to block messages from invalid, unallocated, or unused numbers, as well as numbers associated with fraud.

Public Knowledge supports that proposal, and also says the FCC should take the opportunity to declare texting a common carrier service.

“Consumers need to be protected from the scourge of illegal text messages, but the pressing nature of that mission should not afford carriers a veil behind which they can conceal practices that threaten to undermine the fair, open, and nondiscriminatory expectations that the public has for their communications,” the group writes.

“If the Commission adopts mandatory text blocking rules, these concerns become even more urgent,” Public Knowledge adds. “History shows that carriers will justify unfair fees or anticompetitive action by pretending that these fees and actions are required by regulation when they are not. But without Title II authority, the Commission’s ability to act in the face of such false claims is severely undermined.”

Current FCC Chair Jessica Rosenworcel likely supports the advocacy group's position, given that she dissented from the decision to classify texting as an information service. She said at the time that the move reflected a “quest to dismantle the regulatory frameworks that protect Americans.”

As a practical matter, however, the FCC is currently deadlocked politically and unlikely to revisit controversial issues until a tie-breaking fifth commissioner joins the agency. President Joe Biden nominated Gigi Sohn for that spot more than one year ago, but the full Senate has yet to hold a vote on her nomination.