A Threat to Technology Innovations in Fund Raising

Leave it to the mobile-phone industry to bring together a major Catholic charity and the leading defender of abortion rights in rare agreement over a point of principle: the right to communicate freely with their constituents.

Both charities have encountered restrictions by mobile carriers that would have denied them the ability to reach out to supporters in cases that reveal a glaring failure of telecommunications policy to protect the free-speech rights of citizens and civic associations.

Most recently, Sprint threatened to shut down a text-message fund-raising effort operated by Catholic Relief Services to collect donations for its work in Haiti after the devastating earthquake in January. For its part, Sprint representatives deny that they intended to curtail service to the charity. But e-mail messages and sworn affidavits of participants in the dispute suggest otherwise.

The conflict boils down to a simple question: Does a mobile-phone company have the right to restrict what a nonprofit group says in a text message to its constituents?

The answer should clearly be no.

But in the byzantine world of telecommunications policy, the rules are not clear. And cellphone companies reserve the right to tell charities that use their services what they can and can’t say to donors and members.

In the case of normal phone service over copper wires, the question of free speech is settled law. Phone companies cannot discriminate in offering their services based on who is talking or what is said.

Of course, the phone companies ought to be smart enough to operate with a hands-off policy on telling their clients what they can say in the first place. But large communications companies seem to be unable to resist the temptation to exert control over what is carried over their wires and frequencies and data pipes in the absence of clear guidance from regulators.

In the most recent example, Catholic Relief Services got tangled in telecommunications regulations just at a time when cellphones became a major conduit of substantial sums in charitable support. More than $40-million was raised for Haiti through a vast outpouring of small-dollar donations generated from text messages.

But Catholic Relief Services wanted to try a different approach with the cellphone.

Rather than inviting supporters to make a gift by triggering a small donation directly from a text message, it urged supporters to request an immediate call-back from Catholic Relief Services. Donors would hear a message from the charity’s president and then they could speak to an operator to learn more about the organization’s relief operations. They would also have the opportunity to make a gift.

Catholic Relief Services hoped that people who talked with an operator would give much larger sums than the $10 limit for donations generated via text messages.

That service was threatened when Sprint demanded that the organizations helping Catholic Relief Services carry out the campaign submit special filings to demonstrate the legitimacy of the charitable purpose and how its effort would operate.

Sprint and the organizations working with the charity disagree about exactly what was demanded and what was rejected. But it is clear the organizations came to an impasse.

To be fair, cellphone companies do need to make some effort to vet the legitimacy of nonprofit groups using the text-to-donate system of mobile giving, in which money actually flows through the phone company and shows up on the customer’s phone bill. But in the case of Catholic Relief Services, the donations would not show up on phone bills and would therefore not fall within the purview of Sprint’s vetting process.

In an even more egregious case, two years ago Verizon Wireless threatened Naral Pro-Choice America’s efforts to reach its supporters because the telephone company claimed the right to prohibit messages from any organization “that seeks to promote an agenda or distribute content that, in its discretion, may be seen as controversial or unsavory to any of our users.”

Verizon Wireless withdrew its objections to the Naral text messages as soon as news about the rejection hit the front page of The New York Times. But the underlying conflict remains.

As complicated as those disputes are, it would be easy to dismiss them as minor irritants for isolated organizations or an arcane matter for the lawyers.

But unless regulators resolve those issues, charities will be unable to take a key step in innovating their fund-raising practices without fear of being shut down by telecommunications companies.

In a petition to the Federal Communications Commission by Free Press and Public Knowledge, the two media-policy groups urged the commission to make a ruling that would clarify the rules governing mobile-phone services, prohibiting unreasonable discrimination in offering their text-messaging services.

In their filing with the commission, Free Press and Public Knowledge state, “Rather than impose a rule of law to govern text messaging, the commission has allowed carriers to act like medieval barons exercising high and low justice over their serfs—exacting whatever fees they desire and expecting businesses and nonprofits to beg for the privilege to innovate as an act of grace rather than expect to make plans as a matter of right.” Instead, the public-interest groups argue that “the commission has an opportunity to establish the rule of law with regard to text messaging and short codes. It can require that carriers deal fairly and that nonprofits and commercial enterprises have the necessary stability and legal protection from unjust and unreasonable discrimination to innovate and explore new ways to use this communications technology.”

In addition to their own petition to the FCC, Free Press and Public Knowledge have encouraged charities and citizens to register their own comments with the commission, providing an online submission process that makes it easy to speak out and be heard.

In a small irony, their filing pointed out that the Catholic Relief Services was warned that its text-to-call campaign had been rejected by Sprint on February 17, Ash Wednesday. Further, the organization was informed that the campaign would be ended within 40 days, which only makes one wonder: Did Sprint give up free speech for Lent?