These comments are submitted in reply to the comments requested by the Commission regarding Twilio's petition for a declaratory ruling on the regulatory status of mobile (wireless) messaging services. Twilio's petition requests that the Commission define messaging services as "telecommunications services" and declare that messaging services are subject to Title II of the Communications Act.

 

The Commission should not subject messaging services to Title II common carrier regulation. The wireless messaging services market is competitive and consumers have choices not only among messaging services provided by wireless carriers but among wirelessly-accessible IP-based alternatives, including instant messaging, social media, and email. Title II regulation would saddle messaging services with special burdens and unnecessary costs and put them at a competitive disadvantage vis-à-vis those alternatives, most of which are not (at least presently) regulated by the Commission.

 

Title II is a vestige of the analog-era monopoly telephone service regime, itself based on a 19th Century regulatory apparatus adopted for railroads. Title II is ill-suited to the wireless market and to contemporary messaging services. No evidence of market power or consumer harm has been shown regarding messaging services. Continuing innovation and growth in wireless services would be severely threatened if wireless messaging services were subjected to Title II. Importantly, no consumer welfare-focused case exists for subjecting messaging services to Title II common carrier regulations. In contrast, though, imposing Title II regulation on messaging services almost certainly would harm consumers by restricting the ability of carriers to combat spam and unwanted messages. Imposing common carrier regulation would make it more difficult for wireless providers to devise and implement new business models and protocols designed to restrict the flow of unwanted and possibly harmful and fraudulent messages.

 

Subjecting messaging services to Title II would also likely infringe on First Amendment rights of wireless carriers. Title II regulations would constitute compelled speech mandates, requiring carriers to send messaging content through their networks in a manner not of their own choosing. A First Amendment violation is especially likely where Title II mandates infringe upon carriers' exercise of editorial judgments in administering and curating their branded CSC messaging services.

 

Given the type of usage and technological processes involved, messaging services are Title I "information services" and not Title II "telecommunications services." Messaging services involve store and forward as well as other information processing, and they do not require "live" communication between messaging parties. Functionally, they are similar to voicemail and email and should be similarly treated for definitional purposes under the Communications Act.

 

The Commission should seize the opportunity to clarify that wireless providers' messaging services are "information services" and not Title II services regulated in a public utility-like manner. In so doing, the Commission can provide regulatory certainty and preserve the free market environment in which messaging services have emerged and flourished.