FCC Seeks Comment on Whether Title II Regulation Applies to SMS and Short Codes

On October 13, 2015, the Wireless Telecommunications Bureau issued a Public Notice seeking comment on Twilio’s petition for declaratory ruling asking the FCC to declare that “messaging services are governed by Title II” of the Communications Act.  The Bureau also seeks to refresh the record on a similar 2007 petition from Public Knowledge, which sought to classify SMS and short codes as Title II services.

Twilio offers several reasons for seeking Title II treatment of messaging and short code services.  First, under the D.C. Circuit’s Verizon ruling on the FCC’s 2010 Open Internet Order, Twilio argues that the FCC cannot subject messaging services to some Title II rules (such as the Telephone Consumer Protection Act) without classifying the service as a telecommunications service.  Second, because carriers’ transmission of consumers’ messages is sent without change in the content of the users’ choosing, Twilio contends that Title II treatment is applicable.  Finally, Twilio argues that messaging services’ interconnection with the PSTN further compels Title II treatment.

Opening comments are due on November 20, 2015, and replies are due on December 21, 2015.