At the August 8th Open Meeting, the FCC  is scheduled to vote an item that purports to impose text-to-911 obligations on the US wireless carriers that have not yet voluntarily agreed to provide that service and on Over the Top or OTT text providers.  As you will recall, in late 2012, the 4 major wireless carriers agreed voluntarily to implement text-to-911 capabilities on their SMS platforms.  Because public safety obligations should be platform and technology neutral, the Commission should be applauded for seeking to make text-to-911 universally available, including to Americans with disabilities that may seek to text using an OTT texting application.  But the item currently circulating misses that mark on a number of fronts.

I would start by observing that “texting services” are in the process of undergoing a significant transformation in the underlying technology of delivering those services.  Five years ago, text message services were the sole province of the wireless companies using SMS technology to send and receive consumer texts.  With three then-teenagers living under my roof, my unlimited text plan spared me from having to try to “force” my teenagers to communicate the old fashioned way (you know, talking) when the number of texts on my bill regularly exceeded 15,000.  This month, same three kids (one is no longer a teenager), but the number of “billed SMS text messages” was under 900.  They are still sending out an equal or greater number of texts mind you (they certainly haven’t started communicating the old fashioned way). It is just that those messages are sent via IP applications rather than the SMS platform.

Which brings me to the Commission Order on text-to-911.  For starters, I want to point out that AT&T committed to provide text-to-911, as well as bounce-back messages (where text-to-911 is not available), over the existing SMS technology and has implemented that commitment this year. This new Order would extend those obligations to smaller carriers and to “Interconnected” Text Messaging Applications – roughly defined as texting applications that allow a person to text anyone with a telephone number.  The problem is that a lot of the OTT apps actually used by consumers don’t use telephone numbers but are instead “closed” applications which only allow you to communicate with others who have downloaded the app.  Moreover, even the applications that have integrated with SMS, like iMessage, only fit the definition so long as the SMS technology remains in service; once that technology is retired, those apps no longer fit the definition.  So the “Interconnected Text Provider” extension doesn’t capture some of the larger applications out there and most of the OTT apps it does capture will lose those requirements when SMS technology goes away.  The Commission has put off consideration of those issues into a Further Notice.  Given that it has some hard decisions to make in that area and seeing how this market is in throes of a dramatic evolution, more analysis is probably not a bad thing.

There are two issues created by this Order, however, that potentially impact consumers’ confidence in text-to-911 actually working.  First, I think we will still have a consumer confusion issue surrounding the “Interconnected Text Provider” definition.  While smart lawyers at the agency will know which text providers fit the definition and which don’t, I am not certain those distinctions will be obvious to the hundreds of millions of consumers downloading texting applications.  Second, as explained above, the subset of OTT text services which meet the Interconnected Text Messaging Services definition satisfy their obligation by off-loading their 911 texts to the SMS platform native in the device. But unless the OTT service is integrated, like iMessage, it’s not clear at this time how or even whether this type of off-loading can be easily accomplished. 

All evidence points to the fact that texting is migrating quickly away from SMS to IP.  The Order assures SMS providers that as that migration evolves, SMS providers are permitted to retire that technology and migrate their services in a similar fashion to IP.  Our fear though is that despite those assurances, the heavy reliance on SMS technology will ultimately hinder the ability of SMS providers to retire that technology.  We fully support the Commission’s goal of ensuring that public safety obligations – including text-to-911 obligations – are platform and technology neutral.  But the FCC has much more work to do in the area of text-to-911 to actually accomplish that goal.

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