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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) Petition of Twilio Inc. for an Expedited ) WT Docket No. 08-7 ) Declaratory Ruling Stating That Messaging Services Are Title II Services ) ) REPLY COMMENTS OF MOBILE FUTURE Mobile Future submits these reply comments opposing the Petition for Expedited Declaratory Ruling of Twilio Inc.1 in the above referenced docket, which seeks counterproductive common carrier regulation of some forms of mobile messaging, but not others. Mobile messaging has become an integral method of communication for American consumers. Consumers rely on messaging not only to stay in touch with relatives and friends, but also to conduct business and receive critical information, such as emergency and medical alerts. Messaging exists as we know it today in part because of the proactive efforts the industry has taken to ensure that the platform remains free from spam and harmful, unwanted communications such as phishing attempts or those that contain malware. Twilio’s Petition to treat messaging as a common carrier service would disrupt those spam filtering efforts, and could cause consumers to be inundated with unwanted communications. Twilio’s Petition similarly fails as a matter of law, and should therefore be rejected. 1 Petition of Twilio, Inc. for an Expedited Declaratory Ruling Stating That Messaging Services Are Title II Services (filed Aug. 28, 2015). I. CONSUMERS RELY ON AN UNPRECEDENTED NUMBER OF OPTIONS TO COMMUNICATE VIA MOBILE TEXT Mobile messaging has quickly become consumers’ favored method of mobile communication. According to a 2015 Pew research report, messaging is both the most widely- used smartphone feature and the most frequently used, ahead of even the Internet, making voice calls, and listening to music.2 97 percent of smartphone owners reported using messaging at least once a week,3 and 100 percent of smartphone owners between the ages of 18 and 29 reported doing so.4 The trend towards mobile messaging will likely continue, as more than half of teens with smartphones say that messaging is the most common way they get in touch with their closest friends.5 With the continued rise of mobile broadband, consumers have access to a variety of over- the-top messaging services in addition to those offered by wireless providers. The mobile messaging market is incredibly competitive and dynamic, with over-the-top options long ago surpassing wireless operator provided mobile messaging options in overall usage.6 The growing roster of over-the-top alternatives includes well-known communications juggernauts such as Apple’s iMessage, WhatsApp, Facebook Messenger, GroupMe, Skype, and Snapchat. In fact, global consumers now send 50 percent more messages per day on WhatsApp alone than they 2 U.S. Smartphone Use in 2015, PEW RESEARCH CENTER, at 8 (April 1, 2015), http://www.pewinternet.org/files/2015/03/PI_Smartphones_0401151.pdf. 3 Id. 4 Id. 5 Monica Anderson, How Having Smartphones (or Not) Shapes the Way Teens Communicate, PEW RESEARCH CENTER (Aug. 20, 2015), http://www.pewresearch.org/fact- tank/2015/08/20/how-having-smartphones-or-not-shapes-the-way-teens-communicate/. 6 Rob Price, Texting Is in Decline, BUSINESS INSIDER (Jan. 12, 2015), http://www.businessinsider.com/whatsapp-vs-texting-statistics-2015-1?r=UK&IR=T. 2 send on the entire global SMS system.7 And WhatsApp’s growth shows no signs of slowing; the service increased from 450 million active users in 2014 to 800 million active users 2015.8 II. CLASSIFYING MOBILE MESSAGING AS A TITLE II COMMON CARRIER SERVICE WOULD INUNDATE CONSUMERS WITH TEXT MESSAGE SPAM The mobile messaging platform is virtually free from spam, thanks to proactive wireless provider spam filtering efforts. In contrast, email spam is so prevalent that consumers only open 20 to 30 percent of email they receive.9 Unfortunately, the growing popularity of mobile messaging has not escaped the notice of bad actors over the years. Wireless providers have worked together to develop guidelines and best practices to prevent bad actors from sending unwanted or harmful content to consumers en masse, as is so common on the e-mail platform. In the context of traditional mobile messaging, in which a message is sent from one 10-digit number to another, wireless providers now use spam filtering techniques to identify messages likely to be spam, such as when a text message includes a suggestion that the recipient click a link to another website, or when a single phone number generates a large volume of messages. Wireless providers estimate that they will block around 1.5 billion spam messages in 2015 using these anti-spam techniques.10 As another anti-spam measure, wireless providers developed the 7 WhatsApp Sails Past SMS, But Where Does Messaging Go Next?, BENEDICT EVANS (Jan. 11, 2015), http://ben-evans.com/benedictevans/2015/1/11/whatsapp-sails-past-sms-but-where-does- messaging-go-next. 8 Zaw Thiha Tun, How WhatsApp is Killing SMS Texting, Investopedia.com (July 15, 2015), http://www.investopedia.com/articles/investing/071515/how-whatsapp-killing-sms-texting.asp. 9 Quenten Plummer, E-mail Rates Sharply Down, Symantec Reports: What’s Up?, Tech Times (July 21, 2015), http://www.techtimes.com/articles/70083/20150721/email-spam-rate-sharply- down-symantec-reports-whats-up.htm; Michael Bentz, Marketing With 98 Percent Read-Rate and 10 More Compelling Stats, Adobe Digital Marketing Blog (July 27, 2015), http://blogs.adobe.com/digitalmarketing/campaign-management/marketing-with-98-percent- read-rate-and-10-more-compelling-stats/. 10 Opposition of CTIA, at 20 (filed Nov. 20, 2015). 3 Common Short Code program to pre-clear specific messaging campaigns directed to consumers through applications. These types of messaging campaigns carry the potential for bad actors to inflict massive consumer harm, as they can facilitate blasting thousands of messages to consumers almost instantly. For example, messages involved in phishing efforts could be sent to thousands of consumers simultaneously with the hope that some will reveal passwords, financial information, or other sensitive personal data. The Common Short Code program reduces the need for providers to engage in aggressive spam filtering techniques to identify messages related to scams, malware, or phishing attempts because the messaging campaigns have already been validated as legitimate, and it nearly eliminates the risk that a legitimate campaign is caught in a spam filter while simultaneously shielding consumers from fraudulent or unsolicited text messages. The good news is that the existing approaches are working. For example, Verizon reported that in 2007, the company’s network received 140 million unsolicited messages each month.11 By 2014, that number dropped to only 15 million, a nearly 90 percent decrease over the past 7 years.12 Meanwhile, there has been no shortage of SMS campaigns successfully run by legitimate businesses, charities and others for the benefit and enjoyment of consumers. The spam-free nature of the mobile messaging platform makes the service a particularly reliable method of communication. Consumers trust the mobile messages they receive. Consumers open a remarkable 98 percent of all SMS messages they receive, and they open 90 percent of text messages almost immediately upon receipt.13 With the threat of receiving 11 Comments of Verizon, at 6-7 (filed Nov. 20, 2015). 12 Comments of Verizon, at 6 (filed Nov. 20, 2015). 13 Michael Essany, SMS Marketing Wallops Email with 98% Open Rate and Only 1% Spam, MOBILEMARKETINGWATCH (Aug. 6, 2014), http://mobilemarketingwatch.com/sms-marketing- wallops-email-with-98-open-rate-and-only-1-spam-43866/; Derek Johnson, SMS Open Rates Exceed 99%, TATANGO (April 10, 2013). 4 messaging spam currently so low, consumers know that when they receive a message, it is likely from someone they already know. This is what regulators should want. In contrast, 50 percent of all e-mail traffic is spam, and consumers open a mere 20 to 30 percent of all e-mail messages they receive.14 These statistics demonstrate why consumers choose to rely on messaging in order to receive critical information. For example, airlines message flight updates to passengers, doctors message medical appointment confirmations to patients, and schools and other facilities message emergency alerts to students and families. But Twilio seeks to undermine all of this success with its Petition. If the Commission classifies mobile messaging as a Title II common carrier service, wireless providers would not be able to engage in the same spam filtering efforts that they do today. Mobile consumers would soon find themselves inundated with spam, scams, phishing, and malware messages, with little to no available recourse. Consumers could of course block an individual number after receiving spam, but this is an illusory solution because spammers typically begin sending from a new number, and in cases of phishing or malware, the damage is already done. Classifying mobile messaging as a Title II service would not solve this problem. To the extent the Commission believes Twilio’s claims have merit, the Commission should support the continued use of a multistakeholder process to address mobile messaging spam and to respond to new business models and technical challenges that will inevitably arise in the future. Chairman Wheeler has supported the use of multistakeholder processes over heavy-handed regulation to solve a variety 14 Quenten Plummer, E-mail Rates Sharply Down, Symantec Reports: What’s Up?, Tech Times (July 21, 2015), http://www.techtimes.com/articles/70083/20150721/email-spam-rate-sharply- down-symantec-reports-whats-up.htm; Michael Bentz, Marketing With 98 Percent Read-Rate and 10 More Compelling Stats, Adobe Digital Marketing Blog (July 27, 2015), http://blogs.adobe.com/digitalmarketing/campaign-management/marketing-with-98-percent- read-rate-and-10-more-compelling-stats/. 5 challenges in the industry, and the Commission should take the same approach here with regard to mobile messaging.15 Moreover, while consumers seamlessly navigate between the various forms of mobile messaging, Twilio’s Petition would apply only to mobile messaging services offered by wireless providers.
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