guardMay a mobile carrier legally block the transmission of certain text messages to its subscribers because of an objection to the content of only a portion of those texts? EZ Texting, a mobile marketing company who filed suit against T-Mobile last Friday, is hoping a federal court will respond with an adamant “no.”

The complaint alleges that T-Mobile began blocking EZ’s SMS code on September 10, 2010, because the mobile carrier didn’t approve of EZ’s contract with WeedMaps.com, a website that provides the location of and ratings for medicinal marijuana dispensers in California. T-Mobile’s move prevents any of its subscribers from receiving text messages from EZ, regardless if the content is connected with WeedMaps or any other of EZ’s ten thousand clients, such as Saddleback Church, the Rick Warren-led megachurch in California. EZ’s clients are those that typically send mass informational texts to the cellphones of users who have first sent a keyword text (such as CHURCH) to opt into the service. EZ seeks both an injunction requiring T-Mobile to transmit its text messages and monetary damages.

T-Mobile controls approximately fifteen percent of the U.S. market, and Shane Neman, EZ ‘s CEO contends that T-Mobile’s refusal to send its texts would put his company out of business. “The fact is T-Mobile . . . put my business in jeopardy without any warning, without any justification, and without any appeal.” Moreover, EZ, having heard of T-Mobile’s objection, ended its contract with WeedMaps on September 9, 2010, the day before T-Mobile began blocking EZ’s texts. “In other words,” said Neman, “even when EZ Texting acceded to T-Mobile’s (unreasonable and unlawful) demand simply to prevent further damage to EZ Texting’s entire business, EZ Texting’s short code was still blocked by T-Mobile.”

Although a similar incident occurred in 2007, when Verizon Wireless blocked texts from NARAL Pro-Choice America, public outcry caused Verizon to relent days later, and a court never heard the issue. But in the midst of the net neutrality debate, the question is even more timely now. EZ, as well as Public Knowledge, who has petitioned the FCC for action since the 2007 Verizon incident, and other supporters of strong net neutrality rules are calling on the FCC to apply common carrier law to text messages. This would require cellphone service providers to allow their subscribers to receive all text messages sent to them, which is the current nondiscrimination law that applies to voice calls. The FCC collected final comments on the text message debate in 2008 but has yet to issue a ruling.

Although, at first glance, the decision is a seemingly easy one for the FCC, there are definitely concerns in requiring indiscriminate text message transmission. Service providers like T-Mobile must be able to control spam. Already most are annoyed by telemarketing calls. Moreover, spam reaching your cellphone is likely to seem more invasive and be more of a nuisance — not to mention potentially expensive to those without unlimited text plans — than that spam reaching your email.

But EZ is not in the business of spamming. The only cellphone users who receive text messages from their marketing service are those who have opted in to receive them. Even so, this lawsuit should give everyone cause to reconsider Google and Verizon’s proposal that net neutrality not apply to wireless providers. Although other major providers are not blocking EZ’s texts from being received, seemingly giving consumers of EZ’s service other market options, swapping providers is not usually so easy. Contracts often are packaged as long-term plans, and there is likely no way a consumer could have the foresight to determine whether their service provider may or may not decide to block texts based on political or public policy concerns.

As Gigi Sohn, President of Public Knowledge, explains, this case is “yet another example of a totally arbitrary decision by a carrier to block text message calls between consumers and organizations they want to communicate with.”

– Whitney Boshers

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