Petitions for Declaratory Ruling on Regulatory Status of Wireless Messaging Service, 5008-5013 [2019-02762]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 84, Number 34 (Wednesday, February 20, 2019)]
[Rules and Regulations]
[Pages 5008-5013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02762]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 08-7; FCC 18-178]


Petitions for Declaratory Ruling on Regulatory Status of Wireless 
Messaging Service

AGENCY: Federal Communications Commission.

ACTION: Declaratory ruling; denial of petitions.

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SUMMARY: In this Declaratory Ruling, the Commission finds that two 
forms of wireless messaging--Short Message Service (SMS) and Multimedia 
Messaging Service (MMS)--are information services, not 
telecommunications services under the Communications Act (the Act), and 
that they are not commercial mobile services nor their functional 
equivalent. In so doing, the Commission denies petitions filed by 
Twilio and Public Knowledge asking that the Commission subject text 
messaging services to common carrier regulation under Title II of the 
Act. This document concludes that classifying SMS and MMS wireless 
messaging services as information services will enable wireless 
providers to continue their efforts to protect American consumers from 
unwanted text messages and is therefore in the public interest.

DATES: The Declaratory Ruling was released and became effective on 
December 13, 2018.

FOR FURTHER INFORMATION CONTACT: Elizabeth McIntyre, Deputy Chief, 
Competition and Infrastructure Policy Division, Wireless 
Telecommunications Bureau, (202) 418-0668, email 
elizabeth.mcintyre@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Declaratory Ruling, WT Docket No. 08-7; FCC 18-178, adopted December 
12, 2018 and released December 13, 2018. The full text of this document 
is available for inspection and copying during business hours in the 
FCC Reference Information Center, Portals II, 445 12th Street SW, Room 
CY-A257, Washington, DC 20554. Copies of the Declaratory Ruling and 
Order also may be obtained via the Commission's Electronic Comment 
Filing System (ECFS) by entering the docket number 08-7. Additionally, 
the complete item is available on the Federal Communications 
Commission's website at https://www.fcc.gov.

I. Discussion

A. SMS and MMS Wireless Messaging Services Are Information Services

    1. The Communications Act defines an ``information service'' as the 
offering of a capability for generating, acquiring, storing, 
transforming, processing, retrieving, utilizing, or making available 
information via telecommunications. SMS and MMS wireless messaging 
services meet this definition. First, SMS and MMS wireless messaging 
services provide the capability for ``storing'' and ``retrieving'' 
information. When a user sends a message, the message is routed through 
servers on mobile networks. When a recipient device is unavailable to 
receive the message because it is turned off, the message will be 
stored at a messaging center in the provider's network until the 
recipient device is able to receive it. The messaging center will then 
forward the message to the recipient device when it becomes available. 
After the network delivers the message, the message is then stored on 
the user's device and will remain stored there until the user deletes 
it. This storage and retrieval capability is analogous to email 
service, which has been recognized under Commission precedent as an 
information service and similarly involves storage and retrieval 
functionality. Both email and SMS and MMS messaging services support 
asynchronous transfer of information allowing users to send messages 
without the need for the recipient of the message to be available to 
receive it.
    2. The storage and retrieval functionality of SMS and MMS wireless 
messaging is an essential component of the services. It allows users to 
retrieve messages at any time and to interact with the stored 
information. The storage and retrieval functionality of SMS and MMS 
wireless messaging services also support users' expectation that the 
wireless messages they send will be delivered to their intended 
recipients even if the recipients' devices are turned off or are 
otherwise unavailable.
    3. SMS and MMS wireless messaging services also involve the 
capability for ``acquiring'' and ``utilizing'' information. MMS also 
allows users to interact with data by watching and replaying videos and 
opening attachments. The Commission has found that services that 
provide this ability for subscribers to utilize and interact with 
stored information, even information provided by third parties, are 
information services.
    4. In addition, SMS and MMS wireless messaging services involve 
``transforming'' and ``processing'' capabilities. Messaging providers, 
for example, may change the form of transmitted information by breaking 
it into smaller segments before delivery to the recipient in order to 
conform to the character limits of SMS. They can also reformat 
multimedia messages before delivery to resolve the differences in the 
media processing capabilities of the sending and receiving devices. 
Commonly, wireless providers may compress or reduce the quality or size 
of photos and videos to optimize the viewing of a message on a 
particular receiving device. The Commission

[[Page 5009]]

agrees with commenters that without these capabilities, some messages 
could not be delivered to their recipients. Messages that are exchanged 
between email and messaging platforms may also be reformatted to ensure 
compatibility with each platform. In the case of an email sent as a 
text message, for instance, information such as an email's subject line 
is stripped out of the message and ``time, date, status reports, and 
call-back numbers'' are added to the message. Other texting services 
similarly involve information processing functionalities, such as the 
ability to program the service to generate automatic replies upon 
receipt of incoming messages.
    5. In sum, SMS and MMS wireless messaging services offer the 
capability for ``storing'' and ``retrieving'' information, for 
``acquiring'' and ``utilizing'' information, and for ``transforming'' 
and ``processing'' information. Accordingly, the services fit squarely 
within the statutory definition of an ``information service.''
    6. The Commission has previously concluded that the question of 
whether an information service is ``offered'' should be evaluated with 
respect to the integrated finished product. Under this test, an 
integrated information service may include a transmission component 
inextricably intertwined with information processing capabilities. The 
Commission has historically looked at two factors to make this 
determination--consumer perception and the actual characteristics of 
the service. Consistent with this framework, the Commission examines 
whether wireless providers' SMS and MMS service offerings make 
available information processing capabilities inextricably intertwined 
with transmission. To make this determination, the Commission considers 
both how consumers perceive SMS and MMS wireless messaging services as 
well as how the services are provided as a factual matter. The 
Commission's analysis shows that both factors support the conclusion 
that SMS and MMS wireless messaging services inextricably intertwine 
the information processing capabilities described above with 
transmission.
    7. The Commission begins by examining what consumers perceive to be 
the ``integrated finished product'' when they purchase wireless 
messaging service. Consumers perceive the offer of wireless messaging 
service to include more than mere transmission. They expect their 
wireless messaging service to enable the information processing 
functionalities that allow wireless messages to be stored and 
retrieved, and to allow users to send different types of media among 
different devices and messaging platforms. Indeed, evidence shows that 
consumers often prefer SMS and MMS wireless messaging services 
precisely because of these functionalities. For example, consumers view 
SMS and MMS messaging services as less disruptive and intrusive than 
voice calls because the storage and retrieval functionality of the 
services allows messages to be sent without anyone being there to 
receive them.
    8. Turning next to how the service actually is provided, the 
Commission finds that, as a factual matter, SMS and MMS wireless 
messaging services are offered as a single, integrated information 
service. Although these services involve the transmission of 
information, the information processing functionalities associated with 
the services must be combined with transmission for the services to 
work. With SMS and MMS texting, the transmission of wireless messages 
is ``always and necessarily'' combined with data processing 
functionalities that enable storage and retrieval of messages and/or 
the transformation of information. In fact, SMS and MMS wireless 
messaging services are only offered along with these information 
processing capabilities. The information processing capabilities of 
messaging combined with transmission enable the asynchronous transfer 
of information and ensure that wireless messages can be exchanged and 
accessed across different platforms and devices.
    9. Twilio contends that the information processing capabilities of 
wireless messaging service should be viewed as ``add-on'' or ``adjunct 
to basic'' services that are insufficient to make wireless messaging 
service an information service. Twilio's use of the term ``adjunct'' 
refers to pre-1996 Telecommunications Act precedent under which the 
Commission held that some capabilities ``may properly be associated 
with basic [common carrier] service without changing its nature.'' The 
1996 Telecommunications Act does not use the term ``adjunct-to-basic,'' 
but rather includes a ``telecommunications management'' exception to 
the definition of information services, excluding from the definition 
those capabilities ``for the management, control, or operation of a 
telecommunication system or the management of a telecommunications 
service.'' The Commission has found that the telecommunications 
management exception is properly understood as ``directed at internal 
operations, not at services for customers or end users.'' The 
Commission finds that the information processing functionalities of SMS 
and MMS wireless messaging services are intended to benefit consumers 
and are not merely directed at internal operations. Consumers view the 
data processing functionalities that enable storage and transformation 
of information as essential elements of SMS and MMS wireless messaging 
services. The record shows that consumers often prefer texting to 
calling because of these features. The Commission has clarified that 
the scope of services viewed as falling within the telecommunications 
management exception to the information service definition is 
``narrow'' and should focus only on those services that ``facilitat[e] 
bare transmission.'' The Commission has explained that, even where 
functionalities were useful in some way to providers in managing their 
networks, where those functionalities were designed primarily to be 
essential for end users, they would not fall within the 
telecommunications systems management exception. The Commission finds 
that even if the information processing functionalities of SMS and MMS 
wireless messaging services help wireless providers route wireless 
messages through their networks, those functionalities are nonetheless 
essential to end users and their ability to use wireless messaging 
services. Thus, consistent with Commission precedent, the Commission 
rejects the argument that those functionalities fall within the 
telecommunications management exception to the definition of 
information service.
    10. Twilio also asserts that the Commission must find wireless 
messaging service to be a telecommunications service because ``the only 
offering that wireless carriers make to the public, with respect to 
messaging, is the ability of consumers to send and receive messages of 
the consumers' design and choosing.'' Public Knowledge et al. argue 
that wireless messaging service is different from other services the 
Commission has classified as information services because it does ``not 
rely on the internet and simply relay[s] the user's communications from 
one place to another, without change in the form or content of the 
communication.'' They also claim that wireless messaging service is 
intertwined with mobile voice service, and thus the two services should 
be regulated in the same manner. They note, for example, that ``most 
phones will recognize a phone number inside of a text message, and will 
allow

[[Page 5010]]

the owner to easily call that number or add it to his or her address 
book.'' These arguments are unpersuasive.
    11. The definition of an information service is not limited to 
services that rely on the internet. Rather, what matters are the 
capabilities offered by the service, wireless messaging services 
feature storage, retrieval, and other information-processing 
capabilities. SMS and MMS wireless messaging services do much more than 
merely transmit ``information of the user's choosing, without change in 
the form or content of the information.'' Twilio points to providers' 
marketing materials to support its argument that what wireless 
providers are offering to consumers is only the ability to send and 
receive messages of their design and choosing, but those materials also 
discuss the information processing capabilities associated with 
wireless messaging service. While the specific description of texting 
services may differ from provider to provider, these examples provide 
evidence that information-processing capabilities are an integral part 
of the SMS and MMS wireless messaging services that wireless providers 
offer to consumers.
    12. Moreover, the fact that SMS and MMS wireless messaging services 
are typically bundled with mobile voice services does not overcome the 
Commission's findings regarding the information service capabilities 
that these services provide and does not justify their classification 
as telecommunications services. For example, the fact that fixed 
broadband internet access service is often bundled with wireline voice 
service does not render fixed broadband internet access service a 
telecommunications service.
    13. The Commission also rejects Twilio's argument that it must 
classify wireless messaging services as telecommunications services 
because the Commission has already ``held that a text message is a call 
under a portion of Title II'' (i.e., under Section 227 of the Act). The 
Commission finds no inconsistency between its decision here and its 
actions in the Telephone Consumer Protection Act (TCPA) context, and 
reject Twilio's claim that its decision finding that the TCPA's 
prohibition on placing calls to wireless numbers applies to text as 
well as voice calls implicitly addressed the regulatory classification 
of wireless messaging services and requires that they be treated as 
telecommunications services. To the contrary, the Commission's decision 
merely clarified the meaning of the undefined term ``call'' in order to 
address the obligations that apply to telemarketers and other callers 
under the TCPA. That decision neither prohibits the Commission from 
finding that wireless messaging service is an information service, nor 
compels the Commission to conclude that messaging is a 
telecommunications service. Twilio's argument amounts to an assertion 
that if any provision in Title II of the Act applies to a service, then 
that service must be a telecommunications service. But a look at Title 
II easily belies that claim. For instance, although it is titled 
``Common Carriers,'' Title II applies not only to common carriers or 
telecommunications carriers, but also to other entities such as 
electric utilities and equipment manufacturers. Section 224, for 
example, imposes requirements on electric utilities with respect to 
pole attachments. Section 255 requires telecommunications equipment 
manufacturers to provide equipment accessible for persons with 
disabilities. The TCPA provision itself generally prohibits the use of 
a facsimile machine to send unsolicited advertisements, but that does 
not constitute a determination that an individual's sending of a fax is 
a telecommunications service, just as the application to an 
individual's making ``text calls'' does not reflect a determination 
that wireless messaging is a telecommunications service. In any event, 
for purposes of regulatory treatment, there is a significant difference 
between being subject to Commission regulation and being subject to per 
se common carrier regulation. Only the latter requires classification 
as a telecommunications service. The Commission clarifies herein that 
SMS and MMS wireless messaging are Title I services, and thus, will not 
be subject to per se common carrier regulation.
    14. Having determined that wireless messaging service is an 
information service, the Commission rejects requests that it use 
ancillary authority to apply common carrier regulation. As discussed 
below, application of the non-discrimination provisions of Section 202 
of the Act or similar non-discrimination mandates under Title I would 
be contrary to the public interest.

B. SMS and MMS Wireless Messaging Services Are Not Commercial Mobile 
Services

    15. The Commission finds that SMS and MMS wireless messaging 
services do not constitute ``interconnected services.'' Therefore, they 
do not meet the statutory definition of commercial mobile services, and 
need not be classified as telecommunications services on that basis. In 
particular, wireless messaging services do not ``give subscribers the 
capability to communicate to or receive communications from all other 
users on the public switched network.'' Instead, users of SMS and MMS 
wireless messaging services may only send wireless messages from 
devices able to message other platforms and to other users with 
wireless messaging-enabled devices. This leaves out a significant 
number of consumers who continue to use fixed line telephones that 
generally are not wireless messaging-enabled. The Commission's most 
recent data indicate, for instance, that there were 58 million fixed 
telephone lines in service as of December 2016. The Commission agrees 
with commenters that because SMS and MMS wireless messaging services do 
not provide the ability to reach all of these landline subscribers, 
they do not meet the definition of interconnected services.
    16. Twilio argues that wireless messaging services nevertheless 
meet the definition of interconnected services because users have the 
capability to reach landline phones through the use of apps that allow 
landline phones to be text-enabled. The Commission finds this argument 
to be unavailing. First, Twilio's argument rests on the capabilities of 
a separate application or service that provides text to landline 
functionality. As the Commission has found previously, however, the 
definition of ``interconnected service'' focuses on the nature of the 
offered mobile service itself. The Commission agrees with commenters 
that the fact that users may be able to text landline numbers through 
the use of a separate application or service does not make SMS and MMS 
wireless messaging services themselves interconnected services. 
Moreover, even if text-to-landline service were not viewed as a 
separate service, text-to-landline service does not appear to be 
supported by all providers, and as a result, not all landline phones 
are able to send or receive SMS and MMS text messages. In addition, 
even in cases where text-to-landline service is available, the message 
sent to a landline number is typically sent as a digitized voice 
recording, and particularly for MMS messages, does not include any 
pictures or other media components that are regularly included in 
messages sent to other mobile devices.
    17. That wireless subscribers are capable of receiving text 
messages from all other users on the public switched network that 
possess devices capable of transmitting text messages does not change 
the Commission's analysis. MetroPCS, for example, argues that ``[i]t is 
irrelevant whether landline phones

[[Page 5011]]

are capable of receiving SMS messages from wireless units since the 
`or' in the definition of `interconnected service' is met as soon as 
wireless devices have demonstrated capability to receive such messages 
from landline phones.'' This argument is unpersuasive, because 
regardless of the use of the word ``or,'' wireless messaging service 
does not provide users with the ability to receive communications from 
all users of landline phones. While there are, as described above, some 
services that provide text-to-landline functionality by translating 
wireless messages to voicemail, these services do not appear to be 
available from all providers and, where these services are not 
available, wireless messaging users are not able to receive wireless 
messages from landline phones. Furthermore, to the extent that landline 
phones are capable of sending and receiving wireless messages, the 
technologies that allow such communications transform wireless messages 
into a different communications medium and exhibit the characteristics 
of information services.
    18. The Commission also disagrees with Twilio's claim that the 
Commission has already ruled that wireless messaging service is 
interconnected with the public switched network. In 2007, the 
Commission applied automatic roaming obligations to push-to-talk and 
SMS services based on its determination that doing so would serve the 
public interest because ``consumers expect the same seamless 
connectivity with respect to these features and capabilities as they 
travel outside their home network service areas.'' While the Commission 
noted that some SMS services were provided on an interconnected basis, 
the Commission did not address the question of whether SMS services 
were interconnected for purposes of addressing the regulatory 
classification of such services. To the contrary, the Commission 
specifically declined to address that issue, stating that ``nothing in 
this order should be construed as addressing regulatory classifications 
of push-to-talk, SMS or other data features/services.'' Accordingly, 
the Commission's detailed analysis and conclusion here that messaging 
does not meet the regulatory definition of ``interconnected service'' 
under the Commission's rules does not conflict with the Commission's 
2007 Roaming Report and Order.
    19. Further, the Commission finds that SMS and MMS wireless 
messaging services are not the functional equivalent of commercial 
mobile services. A mobile service that does not meet the definition of 
commercial mobile service is presumed to be a private mobile radio 
service unless the service is determined to be the functional 
equivalent of commercial mobile service. A variety of factors are 
evaluated to determine whether the mobile service in question is the 
functional equivalent of a commercial mobile radio service, including: 
Consumer demand for the service to determine whether the service is 
closely substitutable for a commercial mobile radio service; whether 
changes in price for the service under examination, or for the 
comparable commercial mobile radio service, would prompt customers to 
change from one service to the other; and market research information 
identifying the targeted market for the service under review.
    20. The Commission sees no evidence that SMS and MMS wireless 
messaging services are closely substitutable with commercial mobile 
radio services, whether from a technical or practical point of view. 
Nor has the Commission seen any evidence that a change in the price of 
SMS and MMS wireless messaging service will cause a change in the price 
of commercial mobile radio service. The record does not indicate that 
customers would switch from wireless messaging service to a comparable 
commercial mobile service due to changes in price or service terms. 
Moreover, the fact that several providers bundle messaging with voice, 
on its own, is insufficient to enable the Commission to conduct a 
demand substitution test to overcome the presumption that wireless 
messaging is not a commercial mobile service but rather a private 
mobile service.
    21. The technical characteristics and consumer use of wireless 
messaging service are also distinct from commercial mobile service. 
Wireless messaging service enables users to exchange messages 
containing text and multimedia content for viewing immediately or at a 
later time and conduct internet searches. Though recipients of SMS and 
MMS messaging may respond immediately, they are not required to be 
present at the time the message is sent. In contrast, a commercial 
mobile service call requires the caller and recipient to be available 
at the same time for the phone conversation.
    22. Marketing materials highlight the distinctions between these 
two services, suggesting under the last prong of the functional 
equivalence test that wireless providers target separate markets for 
commercial mobile service and SMS/MMS. For example, in promoting its 
business messaging service, AT&T states that consumers ``can find calls 
intrusive.'' And as a business wireless messaging firm notes, compared 
to voice service, wireless messaging is ``a more reliable way of 
communication because it may be stored and read at any moment later, 
it's clear and cannot be misunderstood,'' but that voice is important 
in a variety of situations and ``never drops off the market.'' This 
market information, in addition to the fact that wireless messaging is 
typically bundled with voice as a complementary service, indicates that 
firms recognize that consumers highly value the unique characteristics 
of each service and do not consider these services as substitutes for 
each other. Accordingly, under the functional equivalence standard, the 
Commission finds that wireless messaging today is not the functional 
equivalent of commercial mobile service.
    23. Lastly, the Commission's conclusion that SMS and MMS wireless 
messaging services meet the definition of information service also 
compels it to conclude that they are not commercial mobile services. 
Consistent with the Commission's previous findings in the context of 
mobile broadband internet access service, classifying messaging as a 
commercial mobile service under Section 332 and also as an information 
service under Section 3 of the Act could lead to ``contradictory and 
absurd results.'' Such an interpretation would create an internal 
contradiction in the statutory framework because Section 332 would 
require that a service provider be treated as a common carrier with 
respect to its provision of wireless messaging service, while Section 3 
would prohibit the application of common carrier regulation to the 
wireless messaging service provider. Construing the commercial mobile 
service definition to exclude SMS and MMS wireless messaging services 
avoids this contradiction and is consistent with the Act's overall 
intent to allow information services to develop free from common 
carrier regulations.

C. Classifying SMS and MMS Wireless Messaging Services as Information 
Services Is in the Public Interest

    24. The Commission's classification of SMS and MMS wireless 
messaging services as information services is not only fully consistent 
with the Communications Act, it is also independently supported by 
public policy considerations. As discussed below, such a classification 
will empower wireless providers to continue their efforts to protect 
consumers from unwanted text messages. By contrast, classifying SMS and 
MMS as Title II

[[Page 5012]]

telecommunications services would harm those efforts and open the 
floodgates to unwanted messages--drowning consumers in spam at 
precisely the moment when their tolerance for such messages is at an 
all-time low.
    25. In the absence of a Commission assertion of Title II 
regulation, wireless providers have employed effective methods to 
protect consumers from unwanted messages and thereby make wireless 
messaging a trusted and reliable form of communication for millions of 
Americans. The Commission rejects the request of Twilio to upend this 
status quo by classifying SMS and MMS as telecommunications services 
subject to common carriage obligations under Title II. Applying such 
regulation, or only non-discrimination obligations, to SMS and MMS, 
either directly or through an exercise of ancillary jurisdiction, would 
inhibit wireless providers' ability to continue protecting consumers 
from unwanted messages. In particular, in the context of voice service, 
under Title II, the Commission has generally found call blocking by 
providers to be unlawful, and typically permits it only in specific, 
well-defined circumstances. The record shows that, as a result, 
wireless providers would be limited in their efforts to prevent spam 
and unwanted messages from reaching end users under Title II 
regulation, and consequently, consumers would be bombarded with 
unwanted text messages.
    26. The record also demonstrates that applying Title II regulation 
and thereby curbing wireless providers' ability to use anti-spam and 
other protections would open SMS and MMS to more spam attacks. Indeed, 
continuing to empower wireless providers to protect consumers from spam 
and other unwanted messages is imperative in light of the fact that the 
growth and popularity of SMS and MMS wireless messaging services have 
made them an attractive target for bad actors and spammers. For 
example, according to Fact Atlas, SMS spam volumes have grown in 
proportion with overall SMS traffic volumes. Symantec also explains 
that ``[a]s more users rely on their mobile devices, more spam, scams, 
and threats are tailored to these devices,'' and ``SMS and other mobile 
messaging technologies are readily being used as a means to deliver all 
kinds of scam campaigns, such as adult content, rogue pharmacy, 
phishing and banking scams, payday loan spam, fake gifts.'' 
Additionally, two dozen state attorneys general have expressed concerns 
about the threat that scams via text messaging pose to consumers or 
provided state residents with tips on how best to avoid such scams.
    27. For these reasons, state attorneys general and other commenters 
argue that the Commission should not allow wireless messaging services 
to become plagued by unwanted messages in the same way that voice 
service is flooded with unwanted robocalls. The Commission agrees. Last 
year, Americans received approximately 30 billion robocalls, and for 
the first five months of 2018, more than 16 billion robocalls have 
already been placed. And the Commission receives over 200,000 
complaints about unwanted calls each year--around 60% of all of the 
complaints that the Commission receives from consumers. The 
Commission's classification of SMS and MMS as information services will 
enable wireless providers to continue taking steps to ensure that 
wireless messaging remains relatively spam-free, and therefore a 
trusted form of communication for millions of Americans, while a 
contrary classification would open messaging to many of the same scams 
and nuisances that plague consumers of voice services today.
    28. At the same time, the Commission finds no reason to believe 
that consumers will not receive the messages they do want as a result 
of this Declaratory Ruling. First, wireless providers have every 
incentive to ensure the delivery of messages that consumers want to 
receive in order to guarantee the integrity of this essential service 
and to retain consumer loyalty. Consumers have a wealth of options for 
wireless messaging service; if wireless providers do not ensure that 
messages consumers want are delivered, they risk losing those customers 
to other wireless providers or to over-the-top applications. In the 
occasional event that such measures have been found to block messages 
that may be wanted, wireless providers have responded quickly.
    29. Some commenters assert that under Title I, providers of SMS and 
MMS wireless messaging services might act anticompetitively, blocking 
messages in order to protect their services against competitors. But 
this concern is not borne out in the marketplace; the Commission has 
not imposed Title II or other non-discrimination obligations, and yet 
under current industry practices, competing services are thriving. In 
cases in which wireless providers are alleged to be perpetrating unfair 
or deceptive acts or practices, the U.S. Federal Trade Commission has 
broad authority to police such conduct and protect consumers. 
Similarly, if wireless providers act in an anticompetitive manner, 
their actions can be challenged under the general antitrust laws.
    30. Commenters make a number of other policy arguments for 
classifying wireless messaging as a Title II service, none of which the 
Commission finds persuasive. The Commission finds such classification 
unnecessary to protect individuals with disabilities, enforce the First 
Amendment, protect public safety and health, or foster innovation.
    31. Beyond empowering wireless providers to continue protecting 
consumers from unwanted text messages, the Commission's classification 
decision today promotes innovation and investment by removing the 
regulatory uncertainty caused by the threat of Title II classification 
of SMS and MMS wireless messaging services. The Commission has 
recognized that ``regulatory burdens and uncertainty, such as those 
inherent in Title II, can deter investment by regulated entities.'' 
Even the threat of Title II regulation can have significant deleterious 
effects on investment. In contrast, regulatory certainty and a 
``minimal regulatory environment . . . promote[ ] investment and 
innovation in a competitive market.'' The Commission's classification 
decision today not only avoids the potential pitfalls of a Title II 
regime, it is also a recognition that utility-style regulation is not 
suitable for dynamic technological industries, such as SMS and MMS 
wireless messaging services, that constantly undergo major 
developments, because such regulation inherently restricts the 
activities in which the regulated industry can engage. As the 
Commission recognized in the Vonage Order, innovative services flourish 
when they are ``subject to the Commission's long-standing national 
policy of nonregulation of information services.''
    32. Additionally, the Commission notes that its finding that SMS 
and MMS wireless messaging services are information services does not 
affect the general applicability of the spectrum allocation and 
licensing provisions of Title III and the Commission's rules to this 
service. These provisions and rules continue to apply because the 
service is using radio spectrum. Title III empowers the Commission to 
prescribe the nature of the service to be rendered and to make such 
rules and regulations and prescribe such restrictions and conditions as 
may be necessary to carry out the provisions of the Act. Application of 
provisions governing access to and use of spectrum (and their 
corresponding Commission rules) is not affected by whether the service 
using

[[Page 5013]]

the spectrum is classified as a telecommunications or information 
service under the Act. Further, nothing in this Declaratory Ruling 
should be construed as modifying any spectrum use authorizations and 
service rule obligations arising out of license conditions or rules 
governing unlicensed use of the spectrum.
    33. Finally, the Commission notes that nothing in this Declaratory 
Ruling impacts the Commission's ability to maintain and update its 
text-to-911 rules. The Commission has previously found that Sections 
301, 303, 307, 309 and 316 support its authority in this context, and 
they continue to do so. The Commission has also relied on the Twenty-
First Century Communications and Video Accessibility Act (CVAA) to 
provide authority in this area, as well as its authority to protect the 
safety of life and property by safeguarding the public's ability to 
access 911 services. More recently, Congress specifically directed the 
Commission to consider improvements to 911 across multiple 
technological platforms when it enacted Kari's Law Act of 2017 and 
Section 506 of RAY BAUM'S Act. Similarly, the Commission's authority 
regarding wireless emergency alerts (WEAs) remains unchanged by this 
Declaratory Ruling.

II. Ordering Clauses

    34. Accordingly, it is ordered, that pursuant to sections 1-4, and 
303, of the Communications Act of 1934, as amended, 47 U.S.C. 151-54, 
and 303, and section 1.2 of the Commission's rules, 47 CFR 1.2, the 
Declaratory Ruling is adopted.
    35. It is further ordered, pursuant to sections 1-4, and 303, of 
the Communications Act of 1934, as amended, 47 U.S.C. 151-54, and 303, 
and section 1.2 of the Commission's rules, that the Petition for 
Declaratory Ruling filed by Public Knowledge et al. in WT Docket No. 
08-7 on December 11, 2007, is denied.
    36. It is further ordered, pursuant to sections 1-4, and 303, of 
the Communications Act of 1934, as amended, 47 U.S.C. 151-54, and 303, 
and section 1.2 of the Commission's rules, that the Petition for 
Expedited Declaratory Ruling filed by Twilio Inc. in WT Docket No. 08-7 
on August 26, 2015, is denied.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2019-02762 Filed 2-19-19; 8:45 am]
 BILLING CODE 6712-01-P