Are Mobile Ad Campaigns "Communications" or "Media"?

T-Mobile USA and EZ Texting apparently have settled their differences without going to court in a case about whether it is legal for T-Mobile USA to exercise discretion over mobile marketing campaigns.

That is the practical thing to have done, but does prevent an examination of the legal issues here, which will grow more common as common carrier communications and "unregulated" media start to become, at times, parts of a single business.

The issue is more complicated than might first appear. Texting might be considered a "simple" extension of common carrier voice services. Using that logic, T-Mobile USA would not be able to exercise editorial functions.

But the specific way EZ Texting is using SMS makes it an "ad campaign." So the messages clearly are "advertising." The thing about advertising is that publishers do have the right to choose what advertising they will accept or reject, since they operate under First Amendment to the U.S. Constitution rules protecting freedom of speech and press.

T-Mobile USA had been sued by EZ Texting after T-Mobile objected to its “short code” messages about medical marijuana.

In a related sort of way, Apple or Google or Nokia can choose which applications to accept and reject for their mobile app stores, again because even though a "common carrier" facility is used, the app stores are "free speech" zones because content and data applications are being published.

These issues are going to get much more complicated, going forward. Though it makes clear business sense for both parties to settle without a court test, that approach does not help us clarify how the bigger issue of common carrier or media models will apply to new industries and applications that cross the boundaries between communications and media.

T-Mobile Claims Right to Censor Text Messages