How to Stop Public Knowledge from Repeating (Painful) History

The folks over at Public Knowledge sound an all-too-familiar and tired refrain in a blog post when they suggest that regulating text messaging would amount to "a little bit of government oversight." Their qualifier is akin to the claim that the Alternative Minimum Tax would only capture the "super-rich," or that access charges would be a "temporary" measure until a more rational system could be imposed. Well as anyone who’s been paying attention knows, the AMT now captures millions of middle-class Americans and access charges have been around for a quarter of a century! The "temporary" and the "limited" often turn out quite differently here in Washington, and that’s why it’s always wise to be skeptical of claims that all is needed is "a little bit of government."

The reality of what Public Knowledge and their professional pleader colleagues are asking for is to subject text messaging, which is nothing more than mobile e-mail, to Title II regulation. About a decade ago, there were groups that tried to pull e-mail into Title II (Does anyone remember the ACTA petition?), and more recently some rural telcos and a few state regulators have used the same specious arguments in an effort to subject VoIP to burdensome regulation. Those efforts would have benefited a few private parties, but disadvantaged consumers. Thankfully, they failed, and this call for regulation should too.

Public Knowledge also blurs together text messaging and Common Short Codes. A Common Short Code is totally different from an SMS text message. It’s just what it sounds like -- a "short code" of five to six digits that allows wireless subscribers to access an array of applications or content available from third-party content providers. They are a brand’s "mobile marketing address." The CSC itself isn’t communications or even a telephone number. These codes are advertising vehicles for the delivery of entertainment and information to users who choose them to send a response to an advertiser or content provider upon a prompt from some other form of advertising media (e.g., a radio ad urging someone to send a text message).

More than twenty years ago, the FCC tried to "protect" the public from the misuse and abuse of "900" and "976" Dial It services – including Dial-A-Porn and bogus chat services. The same "common carrier" rules and First Amendment principles that Public Knowledge advocates for CSCs crippled the FCC’s efforts to protect the public against "900" and "976" scams and unsolicited and inappropriate content. Customers weren't actually protected until the FCC freed the telcos from these rules and allowed the carriers themselves to protect their customers by permitting the carriers to decide which services they would offer. Back when he was a trade reporter, Public Knowledge's Art Brodsky covered the "900" and "976" abuses and the efforts to curb them, and he -- of all people -- should remember the past so we aren't condemned to repeat it.