Stealth Deregulation

Wireless carriers in the United States and elsewhere appear to have come up with a clever new strategy to achieve deregulation: assume that it exists even in the absence of official agency action. Unlike the doubtful ploy of “think and grow rich,” carriers need only assume an outcome and act as though it has occurred. Absent contradiction by a regulatory agency or court the deregulatory assumption may stick.

Consider the example of wireless text messaging. Is this an extension of what common carrier paging companies offered, or has this basic service some how transformed into an information service? Bear in mind that the wireless carrier simply delivers alpha- numeric characters to a wireless handset. There is no information processing, no format conversion, no data manipulation, and no extensive storing and forwarding. Short messaging looks everything like paging attached to a handset capable of providing telephone calls.

So here comes the sleight of hand: because wireless telecommunications has become so popular, its success apparently justifies a regulatory hands off approach—the old “if it isn’t broke, don’t fix it approach.” But aggressive advertising budgets, large baskets of SMS minutes, and anything else contributing to wireless service popularity has nothing to do with whether an alpha-numeric transmission loses its telecommunications service characteristic. Nor does the popularity of a service somehow convert the service provider from a common carrier, subject to title II of the Communications Act, to an unregulated information service provider. And by the way just what costs and burdens would having to provide the service on a common carrier basis impose in the first place?

Common carriers probably do not have to accommodate every alpha numeric content source which seeks point-to-multipoint, “batch” distribution of a message. By analogy not every seeker of a short code NXX telephone number, like 611 access to a telephone company’s customer service department, can get them. But a refusal to provide service, as occurred when Verizon said no to the pro-life organization, NARAL, has to have some basis other than “we don’t want to carry your traffic based on the nature of the content or message transmitted.”

Public relations concerns, and not the threat of regulatory sanctions, prompted Verizon to rethink its refusal to provide service. This temporary embarrassment will not prompt wireless carriers to redouble their common carrier service commitment. Quite the contrary: expect wireless carriers to gear up their considerable in-house and funded third party resources to perpetuate the myth that alpha-numeric messaging no longer constitutes a telecommunications service.