The FCC plans to vote Dec. 12 on a declaratory ruling that wireless text messages (SMS and MMS) are information services, not telecom services, so that service providers can continue to protect their customers from spam and scams, said senior FCC officials.

Critics say that will also allow those providers to censor controversial speech. If texting were defined as a telecom (Title II) service, they would be prohibited from interfering with those communications per common carrier rules.

That FCC ruling, if approved by the full commission, would deny petitions by mass texting company Twilio and others to declare text messages a telecom service, instead defining them as information services. Texts had not previously been classified and the petitions gave the FCC a chance to weigh in and make that call.

The FCC has yet to classify interconnected VoIP--two-way internet-based phone service that connects to the public switched phone network--as an information service not subject to common carrier regs, or a telecommunications service that is.

The FCC says a text messaging service provides for storing and retrieving information, so it is an information service like e-mail. The declaratory ruling also finds that text messaging, like wireless broadband service, is a commercial mobile service, not a private service, because it is not connected to the public-switched service.

Public Knowledge, which filed one of the petitions seeking a telecom definition from the FCC and got the opposite, saw it as a corporate handout. 

“It wouldn’t be the holiday season without chairman Pai giving a great big gift basket to corporate special interests at the expense of American consumers," said SVP Harold Feld. "Chairman Pai proposes to grant the wireless industry’s request to classify text messages as Title I ‘information services,’ stripping away vital consumer protections. Worse, chairman Pai’s action would give carriers unlimited freedom to censor any speech they consider ‘controversial,’ as Verizon did in 2007 when it blocked NARAL and prompted the Public Knowledge 2007 Petition.

While the FCC may not have defined texting as an information service, it has been allowing carriers to take steps to block robotexts. The FCC was providing context for the decision, pointing out that the current spam rate for SMS messages is 2.8% vs. the e-mail rate of over 50%.Among those opposing Twilio's petition to apply Title II regs to texting was the National Organization of Black County Officials, attorneys general from almost two dozen states, and NENA-The 9-1-1 Association.