Sept. 22, 2010— -- A tiff over text messaging between T-Mobile and a medical marijuana website has worked its way into the courts and sparked a debate on how much power cell phone carriers should have over the texts their subscribers send and receive.
EZ Texting Inc., a New York mobile marketing firm, filed a suit last week with the U.S. District Court for the Southern District of New York against T-Mobile USA, alleging that the cell phone carrier unlawfully blocked the so-called cell phone "short code" that allowed its more than 10,000 clients communicate with subscribers via text.
Like American Idol's four-digit code that lets viewers vote by text, short codes are abbreviated cell phone numbers often used by non-profits and big brands for special campaigns.
EZ Texting says T-Mobile shut down the code because one of its clients is Weedmaps.com, a website that helps patients locate legal medical marijuana dispensaries in California and Colorado. WeedMaps had been an EZ Texting client for about a year and, until T-Mobile shut down the code, the company sent two daily "deal" text messages to more than 10,000 medical marijuana patients who subscribed to the service.
"[T-Mobile] decided that because they didn't like that content, they didn't want it to be on their mobile network, so they cut off the entire code," said EZ Texting CEO Shane Neman.
When asked about why the company shut down EZ Texting's short code, T-Mobile said the service was shut off due to a procedural issue and did not mention an issue with the Weedmaps content.
"Like other wireless carriers, T-Mobile has a process in place that follows the Mobile Marketing Association's best practices for reviewing, approving and establishing text message marketing campaigns," the company said in a statement. "In this case, this process was not followed and the shortcode has been disabled. Content services and campaigns need to be submitted to a content aggregator who then follows policies set forth by T-Mobile before a text message shortcode is approved for use."
Neman, however, says EZ Texting learned on Sept. 10 through a mobile messaging intermediary that T-Mobile had flagged the content on WeedMaps, calling it "an unsanctioned and inappropriate service."
Neman said T-Mobile then shut down EZ Texting's "313131" short code, effectively disabling text communication between any of its clients, including Weedmaps, and their T-Mobile subscribers.
Claiming "irreparable harm" to its business, in its lawsuit EZ Texting asked for a temporary restraining order to reactivate the short code and a permanent injunction to force T-Mobile to restore it. A judge has denied the restraining order, but EZ Texting's attorney Michael Hazzard said the judge ordered T-Mobile to respond by Sept. 22 and appear at a Sept. 30 hearing.
"It's really fast. He set an aggressive schedule," Hazard said. "I think he understands that we're being harmed and he wants to get to the bottom of it really quickly."
WeedMaps: Some Cos. Reluctant to Do Business Despite Legalized Medical Marijuana State Laws
Hazzard said it appeared that the judge denied the restraining order (which would only have been effective for 10-20 days) because he hadn't yet heard T-Mobile's arguments and wants to hear more before making a decision on the injunction.
In a statement, T-Mobile said it was pleased that the court had declined the restraining order and said, "We believe the claims in the lawsuit are meritless."
EZ Texting maintains that T-Mobile acted because it "subjectively" did not approve of Weedmaps.
"This is far more serious than a simple technical process issue that they are currently claiming," Neman said. "I was told that T-Mobile did not approve of the website -- Weed Maps … using our short code "313131" to legally [opt] consumers into their SMS marketing program. They can't back away from that now. If T-Mobile takes a stance on blocking lawful content on Medical Marijuana, does this mean they are going to take a stance on all issues? What about gay marriage? Does T-Mobile plan on blocking information on that? Where does it end?"
WeedMaps co-founder Justin Hartfield said that as more states adopt medical marijuana laws, questions related to the business of distribution and marketing will need to be addressed. He said in the last year and a half he's encountered problems with major companies reluctant to work with a marijuana site out of fear of retribution from the federal government.
"It's still federally illegal so there's an issue with the banks and with big companies not taking risks," he said. "So we feel like there should be, first of all, all marijuana should be reclassified federally, but there should be some proposals to give a safeway to companies that do business with medical marijuana in states where it's legal."
Hartfield said his company had used EZ Texting's short code for about a year before the T-Mobile incident without any problems.
But though this is the first time WeedMaps has encountered a problem with cell phone carriers, digital rights activists say it points to larger issue in wireless communications: the FCC does not regulate text messaging, which means cell carriers can interfere – and have interfered – with texting.
"Right now, the FCC does not regulate text messaging at all for any practical purpose, and so as a result there is no oversight of text messaging the way there's oversight of say voice calls," said Michael Weinberg, a staff attorney for the Washington, DC-based group Public Knowledge. He believes that opens the door for cell carriers to censor their subscribers' access to some text messages.
Weinberg said in 2007 Verizon blocked text messaging for the abortion rights group Naral Pro-Choice America on the grounds that it could stop "controversial or unsavory" text messages. He said Verizon reversed its decision after the New York Times published a story about the dispute. When asked about the matter by ABCNews.com, Verizon spokesman Jeffrey Nelson said, "We made a mistake and we fixed it."
This March, Weinberg said, another text messaging incident took place when Sprint told Catholic Relief Services to shut down its text-based fundraising campaign for Haiti relief. Because the carrier opposed the particular way in which the charity used text messaging for fundraising, the charity said Sprint threatened to disable the effort. However, in a letter filed with FCC a few days after initial reports about the issue, Sprint said the company "has supported Catholic Relief Services use of its current short message code and will continue to do so."
Public Knowledge Lobbies for FCC Texting Regulation
The last time Congress considered legislation regarding how the FCC was going to handle wireless communications was in the mid-1990s, when text messages didn't even exist, Weinberg said. Since then, the law has not been updated because it hasn't been a priority.
Public Knowledge has been lobbying for FCC texting regulation for three years. Although the FCC opened a proceeding and accepted comments in early 2008, they have not taken any action, he said.
"You can use a phone number to do anything, Bernie Madoff used his phone to run a billion dollar Ponzi scheme," he said. "Phone companies don't make a value judgment as to who is making voice calls. It doesn't make any sense for them to make value judgments about text messaging."