Marlene H. Dortch, Secretary
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

RE: Notice of Ex Parte Filing; WC Docket No. 08-7

Dear Secretary Dortch:

Public Knowledge, Free Press, Consumer Federation of America, Consumers Union, EDUCAUSE, Media Access Project, New America Foundation, U.S. PIRG, Assemblyman Richard L. Brodsky, and CREDO Mobile, Inc. (Public Knowledge et al.) submit this ex parte filing to respond to several recent filings by wireless providers that mischaracterize several aspects of the Petition for Declaratory Ruling to prohibit discrimination in text messaging (Text Messaging Petition or Petition) filed by Public Knowledge and others earlier this year. As described in our original Petition, wireless carriers offer text messaging services through short codes to the general public as telecommunications services. In fact, from the perspective of a consumer, text messaging provided via short codes is no different than phone to phone text messaging that uses a longer code. There is no reason to distinguish the regulatory treatment of short code text messaging and phone-to-phone text messaging simply because of the length of the address used to send the message. Yet, the carriers documents confirm that wireless carriers often discriminate against would-be providers of text messaging services via short codes based on the content of the information or the type of services they seek to offer. Indeed the reason for the paucity of news articles on this topic is not because the issue has been resolved just the opposite. Wireless carriers admit that they pick and choose among providers of short code text messaging services. In fact, as will be described in more detail below, the wireless industry publishes an explicit set of guidelines that gives examples of the type of short code-based campaigns that are and are not acceptable. And for those parties that are harmed by carrier discrimination, it is risky to complain because of the very discretion that carriers can currently exercise against them.

Since they admit to engaging in discrimination, wireless providers should bear the burden of demonstrating why such discrimination is just and reasonable. Wireless providers principal defense of these discriminatory practices is that they must deny access to short codes to some parties in order to protect consumers from unsolicited e-mail, or spam. As we explain below, there is no evidence that applying non-discrimination principles, either through Title II or Title I, would have any effect on the amount of spam received by wireless consumers or the ability of wireless providers to block spam. If this Petition is granted in full, wireless providers would still retain all of their current rights and capabilities to filter and block unsolicited e-mails from reaching consumers who do not wish to receive them.

Furthermore, as we discuss below, several recent developments make it even more important that the Commission grant the Petition as soon as possible. Text messaging via short codes is becoming an increasingly popular and valuable service one that is quickly becoming a principal means of basic communications. Therefore, the wireless providers discriminatory practices are causing even greater harm, and will cause more harm in the future, than when the Petition was first filed. Therefore, Public Knowledge et al. urge the Commission to grant the Petition expeditiously.