T-Mobile Files Letter With FCC In Response To EZ Texting Litigation & SMS Price Hike

T-Mobile has filed an ex parte letter to the FCC in response to a similar letter filed by the Mobile Internet Content Coalition (MICC) last week regarding the litigation surrounding the EZ Texting lawsuit and the SMS rate increase.

In the response, T-Mobile defends its stance on the three main topics that have kept it in the news the past few weeks, mainly its content-based blocking of EZ Texting’s short code, its SMS rate hike for mobile marketing companies and service providers and its common carrier status and obligations.

Regarding the EZ Texting lawsuit, T-Mobile opposes the notion that it blocked the mobile marketing firm’s short code based on the content being sent.  The carrier asserts that it terminated access to EZ Texting’s short code because EZ Texting failed to follow the proper processes, including industry guidelines, and obtain T-Mobile’s approval before running a new program on an existing short code.  Here’s what T-Mobile had to say about it;

“EZ Texting applied for approval of its short code for a program designed to alert consumers about upcoming events at bars and clubs in 2009, and T-Mobile approved the use of the shortcode for that program.  Under the guidelines adopted by content providers and wireless carriers, acting through the Mobile Marketing Association (“MMA”), prior approval for any new shortcode campaign or modification thereof is required before a carrier will provision a content provider’s short code.  The mobile content industry – i.e., MICC’s members – and mobile carriers adopted those MMA guidelines to address consumer concerns about objectionable content, fraud, and unauthorized charges.  Earlier this month, T-Mobile learned that EZ Texting was using its approved short code for a “shadow program” that had nothing to do with the original program that EZ Texting had submitted for T-Mobile’s approval.  T-Mobile accordinglyterminated access to its network for EZ Texting’s short code under procedures applied by all wireless carriers, as set forth in the MMA guidelines. (T-Mobile subsequently learned that EZTexting was running several other unauthorized shadow programs on the same short code.)”

“Therefore, contrary to EZ Texting’s rhetoric, T-Mobile is not blocking text messages based oncontent.  T-Mobile’s subscribers may continue to send text messages to any recipient on any subject, and EZ Texting may still send text messages to T-Mobile’s subscribers.  Rather, T-Mobile has simply terminated access to a short code that EZ Texting was using for programs that had not been approved by T-Mobile under MMA guidelines.”

In terms of the SMS rate hike that’s casted an unfavorable light on the carrier, T-Mobile maintains that it’s simply “restructuring and simplifying its aggregator fee system that’s already in place.”  Here’s what the carrier had to say on the subject;

“T-Mobile does not ‘charge a per-message fee to mobile marketing companies that use aggregators,’ such as EZ-Texting.  Infact, T-Mobile does not have contractual or direct business relationships with such mobile marketing companies.  T-Mobile contracts with, and charges fees to, content aggregators, which then contract with sub-aggregators and content providers.”

Lastly, and most importantly, T-Mobile responded to the notion that text messages be included in “common carrier obligations” regarding regulation set forth by the Communications Act of 1934, saying; “T-Mobile and other parties have demonstrated that neither text messaging nor the provisioning of short codes constitutes a common carrier service subject to Title II regulation or commercial mobile radio service (“CMRS”) under Section 332(c)of the Communications Act of 1934 (“the Act”).  Text messaging and short code provisioning are information services because they involve protocol processing, storage, and retrieval of messages, and retrieval of information from external databases.  Therefore, those services cannotbe common carrier telecommunications services or CMRS.  Moreover, as noted by both Public Knowledge (in its petition that initiated WT Docket No. 08-7) and the Commission (in its Open Internet Notice of Proposed Rulemaking), text messaging does not constitute broadband Internet access service.  Thus, sending text messages to a short code also is not a broadband Internet access service.

More information and the entire response from T-Mobile can be found here.