Free speech issues to further test legal boundaries

January 29, 2008

Some in the legal field are concerned that carriers may have too much control over short code programs

Last September Verizon Wireless rejected a request from the abortion rights group NARAL Pro-Choice America for a five-digit, text messaging short code.

A week later, the telecoms giant reversed course by announcing that it would allow the group to send text messages to its supporters on the Verizon wireless network.

This case is a foretaste of issues to come in the legal sector, said Jane Hinds-Miller, chief operating officer and vice president of mobile operations for mobile services company Gold Mobile, Clark, NJ.

“The reason Verizon didn’t approve it is because it took a specific political stance,” Ms. Hinds-Miller said.

“I don’t think the carriers should be liable for the content of messages any more than they are liable for the content of emails, phone conversations or instant messages,” she said.

Jane Hinds-Miller, vice president of Gold Mobile

Some in the legal field are concerned that carriers may have too much control over short code programs. One reason why carriers exercise a high level of discretion when allotting short codes is that the liability issues are still unclear.

“I think it is new territory for everyone,” Ms. Hinds-Miller said. “Everyone is treading very carefully.”

Take the short code process, for example. Short code programs must first be submitted to aggregators and carriers for approval. It is a difficult process that takes between six and 10 weeks.

Although Verizon, the nation’s No. 2 carrier after AT&T, originally did not approve NARAL’s request for the short code, other leading carriers had accepted its request.

Some of Verizon’s customers said they were outraged by the company’s initial stance. Some even considered canceling or did cancel their service.

In fact, Verizon received more than 20,000 messages in less than two hours of its decision, calling on the carrier to reverse its textmessaging policy.

Ultimately, Verizon said that its decision to not allow text messaging on an important, though sensitive public policy issue, was incorrect. However, the company did not retreat from its position that it is entitled to decide what messages to transmit.

Some argue that the carrier should not have taken a political stance either way.

“By approving the program it doesn’t mean that Verizon is endorsing pro-choice anymore than if someone speaks about it over the phone,” Mrs. Hinds-Miller said.

The reality is that text messaging programs are tightly regulated. The program requested by NARAL would have sent messages only to people who had asked to receive them.

“Most people don’t know that they won’t get texted if they don’t opt-in,” Ms. Hinds-Miller said. “I think it’s a matter of education, because with text it is policed. The carriers police it very tightly but perhaps too tightly.”

Legal experts said Verizon’s position is probably correct under current law. But some call for regulations that would require wireless carriers to act like common carriers, making their services available to all, regardless of the messages being delivered.

Currently, the implications reach beyond political messages. Companies offering adult content face the same challenges in gaining approval for short codes.

Although the online methodology for liquor or adult sites is to request a simple birth date before a user can gain access to the content, there are limited methods available for such companies to meet the standards for short code programs.

“Liquor companies have Web sites that restrict users under 21 – you must certify that you are over 21 and then can see the contents of the site,” Ms. Hinds-Miller said. “There needs to be an equivalent process so that they canuse short codes.”

Expect such issues to play out more on the political stage this year.

“I think it will continue to be a problem,” Ms. Hinds- Miller said. “Laws should be passed to protect the carriers so that text marketing can be used more widely.”