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Focus on Regulation

FCC Considers Whether Title II Protections Apply to SMS Traffic

In a recent Public Notice, the Federal Communications Commission (“FCC”) sought comment on a Petition filed by Twilio Inc. (“Twilio”) requesting clarification that short message service (“SMS”) messages are regulated under Title II of the Communications Act.  The regulatory treatment of SMS messages has come to a head because of the FCC’s recent reclassification of broadband Internet access as a telecommunications service subject to Title II regulation.  In that decision, the FCC reclassified both wired and wireless broadband services as Title II services earlier this year to “protect the open nature of the Internet.”  The FCC also adopted bright-line rules prohibiting three practices it found “invariably harm” Internet openness:  blocking, throttling, and paid prioritization.

Twilio asserts that SMS messages are “undeniably telecommunications services” under the Open Internet Order framework and that SMS messages also satisfy the definition of a “commercial mobile service,” which are common carrier services regulated under Title II.  In addition, Twilio asserts that the FCC has already applied Title II regulation to SMS messaging even though it has not expressly indicated that the service is a Title II service.

The FCC also indicated a desire to refresh the record on this issue because 2008 was the last time it requested comment on a similar petition.

If the FCC grants Twilio’s request to confirm that SMS messages are regulated under Title II, it would by extension confirm that those messages are protected from blocking, throttling, and paid prioritization.  Comments and reply comments on Twilio’s Petition are due by November 20, 2015 and December 21, 2015, respectively.