Today, the FCC issued a public notice seeking comment on a Petition for Rulemaking and Interim Relief filed by TracFone on October 1, 2014, requesting that the FCC consider whether sending and receiving text messages should count as usage under the FCC’s Lifeline rules.  Those rules require providers that do not charge and collect a monthly fee from their subscribers to monitor their subscribers’ usage.  Subscribers that do not “use” the service over the course of 60 days must be de-enrolled from the Lifeline program.  The point of the rule is to ensure that there is some periodic confirmation that the subscriber is still using or desires the service.  FCC rules define what types of activities count as “usage” for this purpose; but currently the sending or receipt of text messages does not qualify as usage.

An increasing number of subscribers throughout the wireless industry use their mobile handsets for text messaging, and Lifeline recipients are no exception.  FCC staff’s initial reasoning for not including texting on the list of activities that count as usage was that texting is not a supported service.  Yet the act of purchasing additional minutes (regardless if those minutes are used) and responding to “contact” from the carrier (which could be a letter) seeking to confirm that the subscriber still desires the service are both activities that do constitute usage under current rules.  Obviously, the Lifeline program supports the provision of telecommunications services, and neither of these two activities are telecommunications services, so it seems that staff has no basis to exclude texting from the list of activities that constitute usage.

The petition also asks for a waiver of the usage rule to permit carriers to count texting as usage until the FCC officially changes the rule.  TracFone asked for this waiver for its own subscribers, but stated in a footnote that it would not object to the FCC granting a blanket waiver for all ETCs.

Comments are due December 1, and replies are due December 16, 2014.