Today’s NYT has this op ed on Obama’s use of text messaging to announce his VP pick. It provides a nice reminder about the importance of the pending Petition by PK and others on text messaging. Filed after Verizon denied NARAL a short code but reversed itself within 24 hours the mobile texting petition often gets bundled with the Comcast complaint as if they were essentially two examples of the same thing. They aren’t. The Comcast complaint asked the FCC to follow through on its previous commitment to prevent broadband providers from blocking or degrading content or applications. For all the (well deserved) hoopla around the decision, it was at heart, as Commissioner Tate described, “a normal enforcement proceeding, regarding a particular complaint within the confines of the specific circumstances presented.”
The Petition for Declaratory Ruling on mobile text messaging and short codes is not a complaint (although it is an adjudication). It does not seek to punish Verizon as a bad actor, and it only refers to the NARAL incident as an illustration of why the Commission needs to act. Rather, we ask the Commission to decide — for the first time — whether mobile text messaging is a Title II telecommunications service, like the underlying phone number and voice service. If the Commission decides that it is a actually a Title I enhanced service (like the internet access you can buy separately), we ask the FCC to impose rules that would prevent wireless carriers from denying a short code to someone or from messing with anyone’s text messaging.
Not that Verizon or any other provider would be so foolish as to deny the Obama or McCain campaigns short codes or block their text messages. I’m not even worried about independent candidates like Barr and Nader. No, I’m worried about us ordinary schlubs, or even unpopular folks who can’t count on getting a front page story on the NYT if something happens but still deserve the right to organize and spread their message to willing listeners.
More below . . . .
To quickly review of the NARAL flap that prompted the filing of the Petition. NARAL, waking up to the fact that the young people these days use something called “text messaging” to communicate with each other, applied to Verizon for a “Short code” — which is the only way you can realistically do mass text messaging (find out more about short codes here). The employee in charge denied NARAL on the grounds that Verizon policy at the time reserved the right to deny a short code for messages it deemed “controversial.” NARAL went public, Verizon immediately backed down, gave NARAL a short code, explained that the policy in question dated back to ancient times and no longer applied in a world where people used texting as often and as easily as actually calling, and promised to do a thorough review and policy change. Verizon in fact went on to change its policy, and you can find the new policy here.
There is a tendency to regard this as similar to what happened with Comcast, except that Verizon was a smart megacorp that quickly understood it needed to manage a public relations disaster while the good folks at Comcast remained stubborn idiots. From the perspectives of folks like Republican FCC Commissioners Tate and McDowell, who wrote in their dissents to the Comcast Complaint Order that the Commission functions best when it scares the private sector into resolving things without official action, this looks like a successful outcome. Problem solved, right?
But the NYT Op Ed praising Obama for his cell phone savvy provides excellent explanation of why we should not let cell phone providers have discretion in whether or not to hand out short codes or block messages anymore than we let them have discretion on whether to give you a cell phone number or block your calls. As Garret Graff, the author of the op ed in question, observes:
A study conducted during the 2006 elections showed that text-message reminders helped increase turnout among new voters by four percentage points, at a cost of only $1.56 per vote — much cheaper than the $20 or $30 per vote that the offline work of door-to-door canvassing or phone banking costs.
For Mr. Obama, who is building his campaign around bringing in new young voters and registering minority voters, there’s no more effective outreach than a text message. Cellphones, which legally can’t be called by pollsters and can’t be reached by campaign “robo-calls,” are the most intimate form of communication technology today. Young voters of every race are more likely to use their cellphones and, in many cases, don’t even have landline service. (About one in three people between the ages of 18 and 29 doesn’t have a landline.)
The op ed goes on to describe the powerful impact of text messaging for the Obama campaign and for civic discourse around the world. By describing the power of text messaging in democracy movements in the Philippines, in Spain, and in Burma, the op ed emphasizes what is at stake here. We are not talking about rigging the votes for the next American Idol. We are getting at the heart of a right critical to our democracy — the ability to speak to one another without a private gatekeeper sitting in between.
Certainly Obama and McCain are safe. But what about protesters and organizers outside the conventions? If a cell phone company denies a short code to a group like Recreate68 or Operation Rescue or IndyMedia, or yanks a short code or blocks messages during the convention, will it make the front page of the NYT? And even if it does, and the group gets a nice apology after the convention ends, what good will it do? I wish I could dismiss such concerns as idle paranoia, but in a world where the telephone companies agreed to spy on all Americans as a favor to the government, then got retroactive immunity from Congress, I don’t think it’s tin foil hat time when I suggest that unpopular groups or potentially disruptive speakers need more protection than the assurance that the cell phone companies would never do such a thing.
The Petition filed by PK, Free Press, EDUCAUSE, Media Access Project, New America Foundation, and U.S. PIRG does not ask the FCC to punish Verizon as a bad actor. Rather, we ask the FCC to find that cell phone text messaging, sold as part of a cell phone package service, and the associated business of selling short codes, are legally like phone numbers and voice conversations rather than like email messages or other broadband “information services.” As we argue, phone companies will only sell you text messaging as part of their phone package, they will sell it to you independent of any internet access add on, and in all relevant ways matches the definition of a “telecommunications service” like the phone call itself rather than an information service. The FCC has never ruled on this issue before, never having any reason to classify text messaging or short codes.
Unlike the Comcast complaint, which asked the FCC to apply the principles it announced previously to a set of ongoing circumstances, we have asked the FCC to make a legal finding about the very nature of the service. Verizon’s quickly corrected blunder with NARAL may have raised the issue, but the Petition really has nothing to do with that specific event (indeed, NARAL is not a party to the Petition). It goes beyond Verizon to the nature of text messaging, and what rights we can expect in this “the most intimate form of communication technology today.” Giving NARAL a short code doesn’t “solve the problem” or make the issue go away. This is a fundamental question about whether everyone can count on getting access to short codes and text messaging freely regardless of whether it is BFFs sharing an OMG moment or thousands of pro-Tibet protesters strung out along miles of Los Angeles roadway chasing the Olympic torch.
Now that the FCC has resolved the Comcast complaint, it needs to turn its attention to the Text Messaging Petition. The generation Garrett Graff describes as undergoing a political awakening in the age of wireless texting deserves the same freedom the previous generation of organizers relied on for phone trees and letter campaigns. Obama may recognize the potential of mobile texting, but it should not wait for (or depend on) his election to see it protected by law.