Text and Multimedia Messaging: Emerging Issues for Congress

Text and Multimedia Messaging:
Emerging Issues for Congress
Updated October 17, 2008
Patricia Moloney Figliola
Specialist in Internet and Telecommunications Policy
Resources, Science, and Industry Division



Text and Multimedia Messaging:
Emerging Issues for Congress
Summary
The first text messages were sent during 1992 and 1993, although commercially,
text messaging was not widely offered or used until 2000. Even then, messages
could only be sent between users subscribed to the same wireless carrier, e.g., Sprint
customers could only exchange messages with other Sprint customers. In November
2001, however, wireless service providers began to connect their networks for text
messaging, allowing subscribers on different networks to exchange text messages.
Since then, the number of text messages in the United States has grown to over 48
billion messages every month. Additionally, text messages are no longer only sent
as “point-to-point” communications between two mobile device users. More
specifically, messages are also commonly sent from Web-based applications within
a Web browser (e.g., from an Internet e-mail address) and from instant messaging
clients like AIM or MSN.
For Congressional policymakers, two major categories of issues have arisen: (1)
“same problem, different platform” and (2) issues stemming from the difficulty in
applying existing technical definitions to a new service, such as whether a text
message is sent “phone-to-phone” or using the phone’s associated email address. An
example of the first category would be consumer fraud and children’s accessing
inappropriate content, which have existed previously in the “wired world,” but have
now found their way to the “wireless world.” An example of the second category
would be that spam sent between two phones or from one phone to many phones
does not fall under the definition of spam in the CAN-SPAM Act of 2003
(Controlling the Assault of Non-Solicited Pornography and Marketing Act, P.L.
108-187); however, if that same message were to be sent from a phone or computer
using the phone’s associated e-mail address, it would.
The increasing use of text and multimedia messaging has raised several policy
issues: applicability of CAN-SPAM Act to unwanted wireless messages; refusal of
some carriers to allow users to disable text messaging; carrier blocking of Common
Short Code messages; deceptive and misleading Common Short Code programs;
protecting children from inappropriate content on wireless devices; mobile
cyberbullying; and balancing user privacy with “Sunshine,” Open Government, and
Freedom of Information Laws.
One issue, cyberbullying, has been the topic of legislation in the 110th Congress:
H.R. 3577, H.R. 6120, S. 3016, and H.R. 4134. Cyberbullying refers to the new, and
growing, practice of using technology to harass, or bully, someone else. Each of
these four bills would provide grants for education about cyberbullying. No action
has been taken on the first three bills; H.R. 4134 was passed by the House on
November 13, 2007, and referred to the Senate Committee on the Judiciary on
November 14, 2007.



Contents
In troduction ......................................................1
Definitions .......................................................2
Short Message Service..........................................2
Enhanced and Multimedia Message Service.....................3
E-mail-to-SMS Messaging...................................3
Common Short Codes (CSCs)....................................3
Issues for Congress................................................5
Applicability of CAN-SPAM Act to Unwanted Wireless Messages.......5
Inability of Consumers to Disable Text Messaging ...................5
Carrier Blocking of Common Short Code Messages...................6
Deceptive and Misleading Common Short Code Programs.............7
Protecting Children from Inappropriate Content on Wireless Devices.....7
Mobile Cyberbullying..........................................8
Disclosure of Text Messages Under Freedom of Information
Laws and the Stored Communications Act......................9
Using SMS to Support Law Enforcement and Emergency Response.....11
Congressional and Industry Response to SMS-Related Issues..............13
Appendix.
Text Blocking with Selected Major Carriers — Information for
Consumers ..................................................15
AT&T ..................................................15
Verizon Wireless.........................................15
Sprint ..................................................15
T-Mobile ...............................................15
List of Figures
Figure 1. Path of Intercarrier SMS Messages............................3
Figure 2. Path of Common Short Code Messages.........................4
List of Tables
Table 1. Text Messaging Sent per Month in the United States...............1
Table 2. Actual and Projected Total U.S. Text Messaging Users.............2



Text and Multimedia Messaging:
Emerging Issues for Congress
Introduction
The first text messages were sent during 1992 and 1993, although commercially,
text messaging was not widely offered or used until 2000. Even then, messages
could only be sent between users subscribed to the same wireless carrier, e.g., Sprint
customers could only exchange messages with other Sprint customers. In November
2001, however, wireless service providers began to connect their networks for text
messaging, allowing subscribers on different networks to exchange text messages.
Since then, the number of text messages in the United States has grown to over 48
billion messages every month. Additionally, text messages are no longer only sent
as “point-to-point” communications between two mobile device users. More
specifically, messages are also commonly sent from Web-based applications within
a Web browser and from instant messaging clients like AIM or MSN. Table 1 tracks
the historic growth of monthly text messaging between 2001 and 2007 from about
33 million to over 48 billion messages; Table 2 tracks the historic and projected
growth in the number of mobile customers using text messaging between 2003 and

2010 from about 32 million users to 100 million.


Table 1. Text Messaging Sent per Month in the United States
Number of Text Messages
December 200748,100,000,000
June 200728,800,000,000
December 200618,660,000,000
June 200612,040,000,000
June 20057,250,000,000
June 20042,860,000,000
June 20031,220,000,000
June 2002930,000,000
June 200133,500,000
Source: Adapted from CellSigns Mobile Statistics, available online at [http://www.cellsigns.com/
industry.shtml] and CTIAWireless Quick Facts, available online at [http://www.ctia.org/media/
industry_info/index.cfm/ AID/10323].



Table 2. Actual and Projected Total U.S. Text Messaging Users
Number of Text Messaging Users
2010 100,000,000
2009 96,200,000
2008 92,000,000
2007 85,300,000
2006 75,300,000
2005 62,900,000
2004 49,700,000
2003 32,000,000
Source: Adapted from CellSigns Mobile Statistics, available online at [http://www.cellsigns.com/
industry.shtml].
Definitions
Short Message Service
Short Message Service (SMS) is a method of communication that sends text
between cell phones, or from a computer or handheld device to a cell phone. The
“short” part refers to the maximum size of the text messages: 160 characters.1 The
term “SMS” is generally used interchangeably with the term “text message.”
Even when not being used for a voice call, a mobile phone is constantly sending
and receiving information. It is communicating to its cell phone tower over a control
channel. The reason for this communication is so that the cell phone system knows
which cell a phone is in, and so that the phone can change cells as the user moves
around. Every so often, a phone and a tower will exchange a packet of data that lets
both “know” that everything is working properly.
The control channel also provides the pathway for SMS messages. When
someone sends an SMS message, the message flows through the SMS Center
(SMSC), then to the cell tower, and the tower then sends the message to the
recipient’s phone as a packet of data on the control channel. Figure 1 illustrates how
a SMS message is processed.


1 For some alphabets, such as Chinese, the maximum SMS size is 70 characters.

Figure 1. Path of Intercarrier SMS Messages


Source: Used with permission from Motorola. Definitions: The “Internet Protocol (IP) cloud
represents an Internet Protocol network used to carry data traffic; HLR = Home Location Register (the
central database that contains details of each mobile phone subscriber); MAP = Mobile Application
Part signaling protocol; MSC = Mobile Switching Center; the “Public Switched Telephone Network
(PSTN) cloud is included to demonstrate that SMS messages are not carried over it; SMS Aggregator
= an intermediary between mobile service providers providing SMS service; SMSC = SMS Center;
SMPP = Short Message Peer-to-Peer Protocol.
Enhanced and Multimedia Message Service. While SMS only allows
plain text to be sent, two alternative messaging services allow for more elaborate
types of messages. With Enhanced Messaging Service (EMS), formatted text, sound
effects, small pictures, and icons can be sent. MMS (Multimedia Messaging Service)
allows animations, audio, and video files in addition to text to be sent
E-mail-to-SMS Messaging. As noted above, SMS messages may be sent
between a computer and a mobile phone. However, these messages are sent using
the e-mail address associated with the mobile device, such as
2025551212@carrier.com. For that reason, these messages are classified as e-mail
and therefore are subject to different and more stringent regulation under the CAN-
SPAM Act.
Common Short Codes (CSCs)
Introduced in the U.S. market in October 2003, Common Short Codes (CSCs)
are short numeric codes of five or six digits, compatible across carriers, to which text
messages can be sent from a mobile phone. Wireless subscribers send text messages

to short codes to access a wide variety of mobile content, for example, to vote for
contestants on American Idol. Many entities use CSCs to communicate with
interested parties: television stations; individual television shows; radio stations;
instant messaging services; political, advocacy, and other organizations; magazines,
and sports teams — among others. Users send a message to the CSC to subscribe to
alerts or other messages. Sometimes these messages are delivered for free by the
originator, sometimes there is a fee. Figure 2 illustrates how a CSC message is
processed.
Figure 2. Path of Common Short Code Messages


Source: Used with permission from Motorola. See Figure 1 for acronym definitions.
“Vanity” CSCs are also available (for a higher price) — these CSCs use letters
on a mobile device keypad to spell out words that are easy to remember and are
chosen to reflect the service the short code is being used to access.2 Furthermore,
although CSCs can be “compatible” across all carriers, some CSCs are established
as business partnerships between a specific carrier and another entity. For example,
American Idol has an exclusive partnership with AT&T Wireless.3
2 See [https://www.usshortcodes.com/csc/search/publicsearchCSC.do?method=showVanity
& group=all] for examples of such codes.
3 See [http://www.americanidol.com/mobile/] for specific instructions.

Issues for Congress
For Congressional policymakers, the major issues that have arisen stem from
what could be called “same problem, different platform.” For example, issues such
as consumer fraud and children’s accessing inappropriate content, which have existed
previously in the “wired world,” have now found their way to the “wireless world.”
Other issues stem from the difficulty in applying technical definitions to a given
service, such as whether a text message is sent “phone-to-phone” or using the
phone’s associated e-mail address. For example, spam sent between two phones or
from one phone to many phones does not fall under the definition of spam in the
CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and
Marketing Act, P.L. 108-187); but if that same message is sent from a phone or
computer using the phone’s associated e-mail address, it does.
Applicability of CAN-SPAM Act to Unwanted Wireless
Messages
The CAN-SPAM Act was and is intended to curb the amount of spam that
consumers receive in their e-mail accounts. At the time the act was being considered
in 2003, text messaging was in its infancy as a service. As discussed above, SMS
messaging is not the same as messaging that uses a mobile phone’s associated e-mail
address (i.e., 2025551212@carrier.com). At this time, only the latter type of message
is covered by CAN-SPAM; messages that are sent “phone-to-phone” through the
SMSC are not.
There is no evident reason for messages that appear the same to a user and have
the same effect on a user (generally, annoyance) to be treated differently under CAN-
SPAM. Resolving this discrepancy in the treatment of these two types of messages
would require a change to the statute.
Inability of Consumers to Disable Text Messaging
Some mobile service customers have expressed frustration to their
Congressional representatives about unwanted text messages and the inability to
selectively block or completely disable text messaging on their phones. While
carriers generally offer a range of text messaging packages, for example, 500
messages for $10, some customers do not use text messaging and, therefore, pay a
small fee every time they receive a message. A number of user discussion sites
contain posts from users who are frustrated with the extra charges they incur from
unwanted messages.4 In December 2007, a class-action lawsuit was filed against T-5
Mobile in this matter.


4 See, for example, Mobiledia Forum at [http://forums.mobiledia.com/
topic35359-0-asc-10.html ].
5 RCR Wireless News, “Class Action Nails T-Mobile USA Over Texting Services,” January

30, 2008, available online at [http://www.rcrnews.com/apps/pbcs.dll/article?AID=/



Most carriers offer some form of text blocking to their customers. A June 12,
2008, article by David Pogue in the New York Times6 outlined the various options
being offered by different carriers. Appendix 1 contains information from that
article that may be helpful to consumers.
Given that carriers are beginning to offer various forms of text blocking to their
customers, it may be advantageous to consumers to wait to see what options the
different carriers develop. In that way, competition is given a chance to succeed in
this area and carriers are offered the opportunity to assess what their competitors are
doing and perhaps improve their own services. Eventually, however, Congress may
wish to investigate whether customers are being offered the best possible options to
assure that they are not receiving unwanted text messages.
Carrier Blocking of Common Short Code Messages
In September 2007, Verizon notified NARAL Pro-Choice America that it would
not participate in its CSC program. NARAL does not charge for its messages and
users may opt-in or opt-out as desired, but Verizon stated that it does not accept
programs from any group “that seeks to promote an agenda or distribute content that,7
in its discretion, may be seen as controversial or unsavory to any of [its] users.”
This decision was immediately criticized by free-speech advocates, although
communications scholars pointed out that the company most likely, from a legal8
standpoint, did have the right to refuse to participate in the program. Since text
messages are not carried over the traditional telephone network, such messages are
not protected under common carrier regulation. The next day, Verizon changed its
decision and is now participating in NARAL’s CSC program, saying in a statement
that the decision had been “an incorrect interpretation of a dusty internal policy” that
“was designed to ward against communications such as anonymous hate messaging
and adult materials sent to children.” The policy had been developed “before text
messaging protections such as spam filters adequately protected customers from9
unwanted messages.”


5 (...continued)

20080130/FREE/927035123/1005/ rss01].


6 New York Times, “How to Block Cellphone Spam,” by David Pogue, June 12, 2008,
available online at [http://www.nytimes.com/2008/06/12/technology/personaltech/

12pogue-email.html ].


7 New York Times, “Verizon Blocks Messages of Abortion Rights Group,” by Adam Liptak,
September 27, 2007, available online at [http://www.nytimes.com/2007/09/27/us/

27verizon.html ].


8 New York Times, “Verizon Blocks Messages of Abortion Rights Group,” by Adam Liptak,
September 27, 2007, available online at [http://www.nytimes.com/2007/09/27/us/

27verizon.html ].


9 New York Times, “Verizon Reverses Itself on Abortion Messages,” by Adam Liptak,
September 28, 2007, available online at [http://www.nytimes.com/2007/09/28/business/

28verizon.html ].



This issue highlights the difficulty in applying the current regulatory structure
to new services. While mobile providers appear to have the legal right to determine
what information is available through their CSC programs, Congress may wish to
consider whether and how political and other speech might be better protected in
those programs.
Deceptive and Misleading Common Short Code Programs
Many third-party content providers use the CSC program and bill the usage
through the mobile service provider. For example, content providers can allow
mobile device users to download content (e.g., ringtones) or participate in SMS-
based “chat.” While most of these content providers are legitimate businesses, others
use deceptive tactics to gain customers and run up unexpected charges.10
For example, as reported by CBS News in February 2008, some customers have
subscribed to monthly services without reading the “fine print” and find that the
charge is often difficult to remove because it is an independent third party rather than
the customer’s mobile service provider.11
The Mobile Marketing Association has developed “Consumer Best Practices
Guidelines”12 that it expects its members to follow. This code includes limiting
subscription periods to one month, after which consumers must re-subscribe, and
providing alerts to customers when their chat-related charges reach $25 increments.
Although the best practices have not eliminated all misleading programs, over time
the industry may bring its members into compliance. More clarity on industry efforts
might allow policymakers an opportunity to assess the efficacy of those efforts.
Protecting Children from Inappropriate Content on Wireless
Devices
As more mobile devices become equipped to access the World Wide Web and
additional content services are made available via CSCs, the risk of children
downloading inappropriate content will likely increase. While carriers may follow
a set of voluntary guidelines13 to promote wireless safety for children, there is no way


10 See Class Action Connect online at [http://www.classactionconnect.com/
cell_phone_issues/category/complaints-in-the- news/] for examples of these types of
complaints.
11 CBS News, “Ringing Up Big Charges For ‘Free’ Tones,” February 22, 2008, available
online at [http://www.cbsnews.com/stories/2008/02/22/eveningnews/main3867197.shtml].
12 This document is available online at [http://www.mmaglobal.com/bestpractices.pdf].
13 CTIA — The Wireless Association® has voluntary guidelines for wireless carriers to use
in classifying content that they provide directly over wireless handsets. These voluntary
guidelines apply only to content that you purchase from your wireless carrier, either on a
one-time use or download basis, or as part of a package with a monthly fee such as ring
tones, wallpaper, games, music, video clips, or TV shows. Content that is generated or
owned by a wireless user, such as text messages, instant messages, e-mail (through chat
(continued...)

to guarantee that children will not be able to access inappropriate content by
circumventing carrier-implemented safeguards.
The following types of material can be downloaded on many wireless devices,
and may include content inappropriate for children.
!Images, such as background “wallpaper” for the phone screen.
!Games, including some games that are also available for gaming
systems.
!Music and songs, including ring tones, ringback tones, and
downloads of full songs.
!Video, including certain television shows, movies, and music
videos, as well as video programming specially made for, and only
available on, wireless devices.14
The wireless industry is working to ensure that children do not access
inappropriate information over their wireless devices, but there is no definitive
research on the success of these efforts. Whether current efforts to protect children
from inappropriate content over wireless devices may be an issue of interest to
policymakers.
Mobile Cyberbullying
“Cyberbullying,” harassing communications sent, for example, via e-mail or text
messages or through social networking sites such as Facebook or MySpace, is a
growing problem. The issue made national headlines in November 2007 after the
suicide of Megan Meier, a 13-year-old Missouri girl. In that case, the mother of a
former friend of Megan’s set up a fake MySpace page, pretending to be a boy who
had just moved to the area and was home-schooled. Within a few weeks of
becoming “friends” with “Josh,” on October 15, 2006, the tone of his messages
changed drastically, with “Josh” saying he no longer wanted to be friends with


13 (...continued)
rooms, message boards, etc.) and picture mail is not included in the wireless carrier’s
content classification system. Also, content that is accessed by surfing the Internet on a
wireless handset is not currently included in the classification system. The guidelines urge
carriers to provide separate Web filtering software for Web browsing services. Wireless
carriers choosing to follow these voluntary guidelines agree to use at least two content
ratings: (1) Generally Accessible or available to consumers of all ages; and (2) Restricted
or accessible only to those age 18 and older or to those younger than 18 years old, when
specifically authorized by a parent or guardian. The Restricted ratings system generally is
based on or uses criteria under existing ratings systems for movies, television, music, and
games. CTIA Guidelines are available online at [http://www.ctia.org/advocacy/
policy_topics/topic.cfm/ T ID/36].
14 FCC Consumer Fact Sheet, “Protecting Children from Adult Content on Wireless
Devices,” available online at [http://www.fcc.gov/cgb/consumerfacts/
protectingchildren.html ].

Megan, because “he” had heard that she had been mean to some of her friends. On
October 16, 2006, Megan hanged herself in her closet.
Although, as in the case described above, much cyberbullying takes place in the
“wired” world, more recently, these sorts of messages are being sent from and to
mobile devices. Since many mobile devices are capable of performing the same tasks
as computers, these messages are now being sent via mobile instant messaging, the
mobile websites of social networking sites, and text messaging.
The subsequent public outcry over the Megan Meier case led to four bills being
introduced in the 110th Congress, three by Representative Linda Sanchez and one by
Senator John Kerry; each contains language that would include the use of wireless
devices in the definition of cyberbullying.
!H.R. 3577 was introduced on September 17, 2007, and referred to
the House Committee on Energy and Commerce Subcommittee on
Telecommunications and the Internet; no further action has been
taken.
!H.R. 4134 was introduced on November 9, 2007; it was passed by
the House on November 13, 2007, and referred to the Senate
Committee on the Judiciary on November 14, 2007.
!H.R. 6120 was introduced on May 21, 2007, and referred to the
House Committee on the Judiciary; no further action has been taken.
!S. 3016 was introduced on May 14, 2007, and referred to the Senate
Committee on the Judiciary; no further action has been taken.
The bills are substantially similar. All would define cyberbullying to include
“verbal, visual, or written psychological bullying or harassment by an individual or
group, using an electronic device or devices including e-mail, instant messaging, text
messages, blogs, telephones, pagers, and websites, to support deliberate, repeated,
and hostile behavior that is intended to harm others.” H.R. 3577, H.R. 4134, and S.
3016 would authorize $5,000,000 for educational grants to carry out Internet crime
prevention education programs from 2008 through 2012; H.R. 6120 would authorize
$10,000,000 for the time period 2009 through 2013.
Disclosure of Text Messages Under Freedom of Information
Laws and the Stored Communications Act15
Text messages are routinely used to conduct government business. As a result
employers, litigants, newspapers, and public interest groups are increasingly seeking
access to the contents of such communications in order to shed light on the workings
of government. One of the arguments against disclosure of text messages emerging
from public officials is that certain delivery platforms or technological devices


15 Gina Marie Stevens, Legislative Attorney in the CRS American Law Division, contributed
to this section.

should, by their very nature, be private because the official owns them, or keeps them
in her pocket. Because text messaging represents a relatively new form of electronic
communications, state and federal courts are considering requests for access to and
disclosure of text messages pursuant to freedom of information and privacy laws.
Courts have begun exploring ways to apply open government laws to text
messages. In Texas, a state judge ordered the City of Dallas to turn over e-mails and
text messages sent by city officials from personal accounts and personal hand-held
devices to conduct city business, and held that the e-mails and messages were subject
to disclosure under the Texas Public Information Act.”16 Newspapers in Detroit,
Michigan, filed a Freedom of Information Act (FOIA) lawsuit against the city
seeking disclosure of text messages sent by Detroit elected officials on city-issued
pagers that relate to the city’s $8.4 million settlement of two whistle-blower lawsuits
brought by former Detroit police officers.17 The city has argued that disclosure of the
text messages would violate the federal Stored Communications Act. A public
records directive issued by the city states that all electronic communications sent on
city equipment “is not considered to be personal or private.”18 Although the
newspapers obtained the text messages through an anonymous source, they continue
to press for the release of additional information under public records law.19 A court
ruled part of the information the newspapers wanted was public, the Free Press
published text messages related to the cover-up and the Mayor and Chief of Staff
were charged with eight felonies.20 The newspapers are continuing to pursue
additional information using the state FOIA.
New York legislators worked to revise the state’s open records law to
specifically add text messages to the list of records covered.21 A new Freedom of
Information Law became effective in New York on August 7, 2008, and includes
provisions which reflect a recognition of advances in information technology, but
does not include a provision on text messaging.22


16 Jennifer LaFleur, Dallas: City Must Provide Messages From Officials’ Personal
Accounts, Dallas Morning News, October 30, 2007, available at
[http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-emails _

30met.ART 0.State.Edition1.421befa.html ].


17 Detroit Free Press, Inc., et al. v. City of Detroit, No. 08-100214 CZ, Wayne County
Circuit Court, MI, at [http://info.detnews.com/2008/0307motiontocompel.pdf].
18 On June 26, 2000, Mayor Kilpatrick signed a “Directive for the Use of the City of
Detroit’s Electronic Communications System.”
19 A “public record” under the Michigan Freedom of Information Act is a writing that is:
(1) prepared; (2) owned; (3) used; (4) in the possession of, or (5) retained by a public body
in the performance of an official function….. MCL 15.232(e).
20 For an excellent chronology of developments, see Reporters Committee for Freedom of
the Press, at [http://www.rcfp.org/newsitems/index.php?key=121&op=keyword].
21 “Battle Over Public Information Expands,” by Ledyard King, Federal Times, March 24,

2008, p. 14.


22 N.Y. Pub. Off. Law § 84 et seq. For a summary of the amendments to the Freedom of
Information Law, see [http://www.dos.state.ny.us/coog/foilnews2.html].

Subject to certain exceptions, the Stored Communications Act (SCA), which is
part of the Electronic Communications Privacy Act, bars “a person or entity
providing an electronic communications service to the public” from knowingly
divulging to any person or entity the contents of a communication while in electronic
storage by that service.” The SCA distinguishes between two types of providers:
“remote computing services” and “electronic communications services.”
Courts have been examining whether the disclosure of text messages sent by
employees on employer-issued pagers violates the privacy rights of employees, and
whether such disclosure is barred by the Stored Communications Act.23 The Ninth
Circuit Court of Appeals recently held that the city employer violated the
constitutional rights of an employee when the employer reviewed text messages sent
and received by the employee on his employer-provided pager. The court of appeals
also held that the text-messaging service provider violated the federal Stored
Communications Act by giving the city transcripts of the text messages. In Quon v.
Arch Wireless,24 the Ninth Circuit held that a city’s text message provider was an
electronic communications service for purposes of the act because it enabled city
employees to send and receive wire communications. In Quon, city employees sued
their employer after they were fired for using their employer-provided mobile devices
for personal communications.
Using SMS to Support Law Enforcement and Emergency
Response
In April 2008, the FCC adopted rules for the Commercial Mobile Alert System
(CMAS), which will deliver emergency text messages to the public during
emergencies and natural disasters,25 and recommended that the Federal Emergency
Management Agency (FEMA) be the program’s aggregator. The program was
mandated by the Warning, Alert and Response Network Act that was signed into law26
in 2006. Under this law, the FCC was required to develop plans for a commercial
mobile-alert system through which wireless carriers would voluntarily transmit text


23 18 U.S.C. § 2701 et seq.
24 No. 07-55282, (9th Cir. June 18, 2008). The opinion is online at
[ h t t p : / / www.ca9.uscour t s .gov/ ca9/ n ewopi ni ons.ns f /
D2CDDB4098D7AFB28825746C0048ED24/$file/0755282.pdf?openeleme nt].
25 Federal Communications Commission, In the Matter of the Commercial Mobile Alert
System, First Report and Order, FCC 08-99, PS Docket No. 07-287, April 9, 2008, available
online at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-99A1.pdf]
(“Commercial Mobile Alert System, First Report and Order”). See also, FCC Adopts Rules
for Delivery of Commerical Mobile Alerts to the Public During Emergencies (FCC 08-99),
April 9, 2008, available online at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/
FCC-08-99A1.pdf].
26 Warning, Alert, and Response Network Act, Title VI of the Security and Accountability
for Every Port Act of 2006, P.L. 109-347, 120 Stat. 1884 (2006).

messages sent out by the government. The FCC has divided the types of messages
the government will send out to mobile-phone users into three broad categories:27
!Presidential Alerts deal with national emergencies and will take
precedence over any other impending alerts
!Imminent Threat Alerts deal with emergencies that may pose an
imminent risk to people’s lives or well-being.
!Child Abduction Emergency/AMBER alerts will be related to
missing or abducted children.
In addition, the FCC says that all subscribers with roaming agreements will
receive timely alerts “provided the subscriber’s mobile device is configured for and
technically capable of receiving alert messages from the roamed upon network.”28
The architecture adopted by the FCC calls for a centralized alert-aggregator
where federal and state emergency-response agencies would send their warning
messages to be authenticated and dispersed to the appropriate participating
commercial mobile services. Noting FEMA’s role in developing the proposal for the
adopted architecture, the FCC recommended the agency as its first choice to serve as
the alert aggregator. Thus far, however, FEMA has not agreed, and has argued that
it is limited in its statutory authority from serving in such a role.
In its order, the FCC said that it was “hopeful that any bars that prevent FEMA
or some other entity within Department of Homeland Security (DHS) from fulfilling
these roles will be lifted expeditiously,” and urged Congress to give FEMA a central
role in the emergency Short Message Service program. The FCC said that if FEMA
did not take responsibility for being the alert aggregator, another entity within DHS
or the National Oceanic and Atmospheric Administration should be assigned the
responsibility.29
T-Mobile, Verizon, Sprint Nextel and AT&T all stated that they would be likely
to opt into the alert system.30
This program’s implementation will require that an appropriate central
aggregator take charge of the execution of this program. FEMA’s assertions that it
is limited in its statutory authority from accepting this responsibility could make this
a legislative issue.


27 Commercial Mobile Alert System, First Report and Order, paras. 26-32.
28 Commercial Mobile Alert System, First Report and Order, para. 79.
29 Commercial Mobile Alert System, First Report and Order, para. 18.
30 FCC Approves Emergency Alert Text-Messaging System, CNN.com, April 10, 2008,
available online at [http://www.cnn.com/2008/TECH/04/09/fcc.cell.phone.alert/].

The FCC has issued a Second Report and Further Notice of Proposed
Rulemaking;31 an Order on Reconsideration and Erratum;32 and a Third Report and
Order.33 Of particular note, in the Third Report and Order, the FCC —
!adopted notification requirements for wireless providers that elect
not to participate, or to participate only in part, with respect to new
and existing subscribers;
!adopted procedures by which wireless providers may elect to
transmit emergency alerts and to withdraw such elections;
!adopted a rule governing the provision of alert opt-out capabilities
for subscribers;
!Allowed participating wireless providers to recover costs associated
with the development and maintenance of equipment supporting the
transmission of emergency alerts; and
!Adopted a compliance timeline under which participating wireless
providers must begin CMAS deployment.
Specifically, the FCC has set September 8, 2008, as the date by which carrier
must opt either in or out of participating in the program.
Congressional and Industry Response to
SMS-Related Issues
The issues discussed in this report have prompted different levels of response
from Congress and the wireless industry:
!Issues that are being addressed by industry, so policymakers may
wish to wait and see how those efforts play out;
!Issues that have not risen to a level of priority in Congress, but
would require statutory action to effect change; and


31 Federal Communications Commission, In the Matter of the Commercial Mobile Alert
System, Second Report and Further Notice of Proposed Rulemaking , FCC 08-164, PS
Docket No. 07-287, July 8, 2008, available online at [http://hraunfoss.fcc.gov/edocs_public/
attachma tch/FCC-08-164A1.pdf].
32 Federal Communications Commission, In the Matter of the Commercial Mobile Alert
System, Order on Reconsideration and Erratum, FCC 08-166, PS Docket No. 07-287,
July 15, 2008, available online at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/
FCC-08-166A1.pdf].
33 Federal Communications Commission, In the Matter of the Commercial Mobile Alert
System, Third Report and Order, FCC 08-184, PS Docket No. 07-287, July 15, 2008,
available online at [http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-184A1.pdf].

!Issues that have triggered a legislative response.
As wireless communications technologies, and the issues that accompany them,
evolve over time, so likely will the approaches that industry and Congress will take
to ensure consumer safety and satisfaction.



Appendix.
Text Blocking with Selected Major Carriers —
Information for Consumers
AT&T. Customers must log in at mymessages.wireless.att.com. Text-blocking
and alias options are available under “Preferences.” Messages from specific e-mail
addresses or websites can also be blocked from this page.
Verizon Wireless. Customers must log in at vtext.com. Text blocking
options are available under “Text Messaging”/”Preferences.” Select “Text Blocking.”
Consumers may block text messages from e-mail or from the Web, including
blocking specific addresses or websites.
Sprint. Customers must log in at [http://www.sprint.com]. Sprint does not
offer auto-blocking, but consumers can block specific phone numbers and addresses.
On the top navigation bar, select, “My Online Tools”/”Communication Tools”/”Text
Messaging.” On the Compose a Text Message page, under Text Messaging Options,
select “Settings & Preferences.” In the text box, customers can enter a phone
number, e-mail address, or domain name to block.
T-Mobile. Customers must log in at [http://www.t-mobile.com] and select
“Communication Tools.” T-Mobile doesn’t yet offer a “block text messages from
the Internet” option. Customers can block all messages sent by e-mail, though, or
permit only messages sent to the phone’s e-mail address or alias, or create filters that
block text messages containing certain phrases.34


34 “How to Block Cellphone Spam,” NYTimes.com, Pogue’s Posts, June 12, 2008, available
online at [http://pogue.blogs.nytimes.com/2008/06/12/how-to-block-cellphone-spam/
?scp=1&s q=T ext%20Blocking&st=cse].