Convergence versus common-carrier principles

Posted on September 27, 2007  /  2 Comments

It has long been a staple of telecom law that telcos could not decide what went through the tube.   According to the article below, this principle does not apply to text messages.   One academic apologist goes as far as claiming that competition will look after the problem.  He misses the point that under present arrangements there is only one way to reach a mobile user with a text message, though his/her operator (an equivalent condition does not exist in the Internet).  Until that changes, the common-carrier principle must applied, be it for text or voice.  

Verizon Rejects Messages of Abortion Rights Group – New York Times

Text messaging is a growing political tool in the United States and a dominant one abroad, and such sign-up programs are used by many political candidates and advocacy groups to send updates to supporters.

But legal experts said private companies like Verizon probably have the legal right to decide which messages to carry. The laws that forbid common carriers from interfering with voice transmissions on ordinary phone lines do not apply to text messages.

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  1. Would common carriage doctrine continue to apply to mass text messages sent from the internet to groups – using txtmob or twitter or other texting broadcast applications? Does the one to many, rather than one to one, alter the principle?

  2. The content provisions of the common carrier doctrine apply to point-to-point messages. It is important to distinguish between point-to-point and point-to-multipoint (or broadcast).

    Here, the messages are actually point-to-point, in that the recipient has registered. The fact that they are sent simultaneously and not sequentially does not make them broadcasts. When point-to-point messages are transmitted without consent they used to be called nuisance calls; many countries have laws against them.

    In broadcast (including cell broadcast, a mobile functionality that we are studying for disaster warnings), there is no consent.

    If I want to receive a message and the only way to receive it is through the use of the number that I use, the phone company has no business getting in the middle.

    Distinguished from this are broadcast messages, where the recipient has not requested them. There, it is important that the phone company provide the recipient with the means to prevent undesirable messages from coming in.