On The Nature Of Ducks (and Title II “information service” providers):
What is a common carrier?
What does the First Amendment have to do with common carriers?
What is estoppel (e.g., collateral estoppel, equitable estoppel… etc.)?
If someone walks, talks, and acts like a duck, and argues in front of the FCC and courts that they are a duck, aren’t they a duck?
Should a company seeking profit be able to argue that they are a duck in court when it benefits them but then, with the same mouth, argue vociferously that they aren’t a duck when it doesn’t suit them for legal purposes?
Believe someone when they show you who they are.
What do Amazon Alexa, Google Home, Gotenna, Twilio, and others all have in common? They all want to make money. Accordingly, they provide services that enrich them and incidentally, we are all provided with a service. Amazon Alexa is a great example. From our perspective, we pay some amount ($19 – $149) and get a gadget that does things for us. But what’s the real purpose behind Amazon Alexa from Amazon’s perspective? Where do they really make their money?
Similarly, Gotenna makes a product (e.g., Gotenna Mesh) ostensibly to connect people on the fringes of conventional communications coverage (hiking, sailing, ….) for emergency communications, and the like.
As a responsible care-taker of parents, at some point, if we are good children, then we’ll all need to face the reality that sometimes our elderly may need to reach out for help and we won’t be there to help them.
Wouldn’t it be nice if we could get our seniors an Amazon Alexa, a Google Home, a Gotenna device and even if the celltowers fall, even if our parent falls and can’t reach the phone, they still have a fighting chance to get help?
The WSJ lays out an instance where an elderly lady fell and couldn’t get up, couldn’t reach her phone and tried to use Alexa to call 911 for help. In my experience, my mother had her cable, power, telephone, and internet lines cut by a freak accident days before a hurricane hit her taking out her cell phone tower. In another experience, a girl at Burning Man, out in the middle of the desert (with no cell signal) suffered third degree burns and couldn’t get help.
What’s the common thread?
911 access. There are many instances where we may need to ask for help… and sometimes we can’t simply pickup the phone to dial 911. Home invasions, active shooters, domestic violence, infrastructural failures, deaf / HOH / elderly / children … to name a few.
Wouldn’t it be nice if there was a simple way to send a message to our first-responders or others in the community better situated to help without needing to use our voice, without relying on only one telecommunications service? Don’t we want a 911 service that is robust, intelligent, flexible? Don’t we want to provide backup channels to get the message out? Isn’t, or shouldn’t, our goal be to promote the strongest, most capable, most accessible 911 service for our weakest members of society?
The FCC believes this to be true.
So why am I blabbering about Gotenna?
Gotenna is the only reliable, accessible, inexpensive backup communications system that presently exists for 2019. What about ham radio? It’s definitely good, but it requires an FCC license, study, an exam, and a fee. Is it idiot proof? Would you feel safe leaving your Grandmother with a ham radio and being sure she’ll find the right channel and effectively get a message out? Gotenna, on the other hand, serves as its own cell tower and local repeater. All in a package the size of a lighter and only $50 on ebay. Gotenna Mesh uniquely broadcasts a loved one’s cry for help even when every other avenue of communications is down. Gotenna sends out the message and if any other Gotenna within miles does have any form of service, it can relay the message out to the telephone network. Which is great! Except that, for some reason, it will not forward the message to 911. Any other number in the world can be reached, but for some reason, Gotenna will not allow 911 emergency messages. Digging deeper, Gotenna relies on a cloud-based IP to telephone service provider, Twilio, and Twilio squarely forbids any emergency messages. Why is this?
So what other options are there? Well, Amazon Alexa and Google Home would be great! All she needs to say is “Alexa, call 911.” Unless well-meaning legislation or administrative rules created a disincentive from Amazon or Google providing 911 access (as is presently the case).
Tens of thousands of 911 PSAP call centers covering our biggest cities are ready, willing, and able to accept text 911 messages. Sure, there’s more work to do to expand coverage out to our poorest counties and states… but text-to-911 is a mature service providing a last line of defense to tens of millions of Americans.
So, why won’t Amazon, Google, Twilio, Gotenna put the last brick in place to enable our loved ones to reach out for help?
Could it be that Amazon, Google, Twilio, Gotenna, and others truly don’t care about Americans? About saving lives? About providing an avenue for help?
Have their lawyers determined that it simply isn’t worth the risk? and having to contribute minuscule fees to 911 centers?
While Twilio does provide sms delivery services for Gotenna, their primary and most lucrative business is automating commercial text delivery (robotexts) marketing or advertising products or political candidates. To these ends they’ve argued time and again in front of the FCC that text messages are an inalienable First Amendment Free Speech right. They’ve argued that telecommunications services and providers are mere common carriers – obliged to dutifully deliver whatever they’ve been entrusted with (parcels, letters, telephone calls, and text messages). Any attempts to interfere with Twilio’s text messages (such as Verizon saving Grandma from a million annoying “spam” robotexts) would violate their First Amendment rights to have the message dutifully delivered without interference. Thus, Twilio feels that they are, by extension, common carriers as well, a dutiful mailman, that neither deliberates or is unfaithful, but merely delivers the messages come rain, snow, sleet, or hail. Twilio makes no judgment calls on hate speech, Nazi propaganda, child porn, fraudulent scam texts, they just deliver the message… UNLESS that message is a cry for help, a desperate message sent to 911. And in that case, Twilio, Gotenna, Amazon, Google, and others, argue that hey, we aren’t a telecommunications provider, we aren’t a common carrier, we are something new, tertium quid and the rules shouldn’t apply to us and we shouldn’t have to chip in towards community 911 access fees.
So if Twilio walks, talks, and acts like a duck (and argues in front of the FCC that they are a duck in Court)… shouldn’t we treat them like a duck? Hopefully, Twilio, Google, Amazon, and Gotenna will start doing the right thing and providing 911 access. How can we help them with suitable rule-making / tweaking / cutting red tape / deregulating to avoid creating a perverse dis-incentive to new “information service” providers from offering basic community emergency access? Aren’t they estopped from arguing that they aren’t telecommunications providers?