Texting isn’t just the purview of teenagers. Bulk texting is a huge business. Sometimes they’re scam spam in about the same category of usefulness as emails from a wealthy Nigerian prince who doesn’t exist, granted, but sometimes they’re useful blasts from businesses or public entities that let a whole bunch of people get useful information quickly in a low-bandwidth way. But what they aren’t, quite yet, is clearly regulated. A case moving through the FCC right now, however, may change that.

Phone lines, including mobile, are common carriers, subject to Title II regulation. That’s been true for decades, and it means wireless carriers have to treat all phone calls the same way, without providing priority to one caller over another. Calls from grandma come through to you in the exact same way as calls from “Rachel in cardholder services,” for better or worse.

Mobile broadband — your 3G or 4G LTE network — is also subject to Title II common carrier regulation… at least, for now. That was part of the net neutrality rule that went into effect earlier this year, and it means that wireless carriers have to treat all data the same way, without providing priority to one app or website over another. Downloads from Candy Crush will get to you under the same conditions as downloads from The New York Times, unless next month’s court date upends everything once again.

But text messages still exist in a strange netherworld. SMS messaging is neither voice nor data… or maybe somehow it’s both voice and data. Right now, all of that is still up for grabs. And that’s where this fight comes in.

Back in August, a company called Twilio, which provides the back-end systems for businesses to text customers, petitioned the FCC formally to classify SMS as a Title II service along with your phone’s voice and data. Twilio’s goal is, of course, to make sure that all the texts it sends on behalf of its customers can get through to subscribers without being blocked or throttled… or, more importantly from their perspective, without having to pay a pile of extra fees to the carriers.

Twilio argues that under the existing law, texts are treated in the same way as phone calls, which have a very clear regulatory status. Additionally, Twilio points out, it basically makes no sense to apply the same kind of regulation to everything a phone does except text.

The wireless companies, however, are not a fan of this idea. AT&T, Verizon, and the CTIA (a trade group that represents most of the wireless carriers) all filed responses with the FCC strongly urging against making texts as subject to Title II as everything else you do on your phone is. According to AT&T, since texting doesn’t exist on landlines it is exempt from the statute. Verizon, meanwhile, likens it to email and calls it an information service.

All three argue that to oblige wireless businesses to treat all texts as equally as they treat voice calls and data would harm consumers because it would hamper their anti-spam efforts and open up texting to the same sort of incessant spam harassment consumers are already subject to with robocalls.

(Yours truly, who has so far received three phishing scam texts this week, would suggest that perhaps that ship has already sailed.)

Consumer advocate groups, including Common Cause, Public Knowledge, and Free Press, all supported Twilio’s side. Smaller businesses and start-ups, they said, had been facing challenges getting their bulk texts to consumers because of disparate treatment from mobile companies.

[via Ars Technica]

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