Table of Contents
There is a classic adversarial interoperability play happening in messaging right now. It involves Beeper (the maker of Beeper Mini), Apple, and the FCC. Android app Beeper Mini allows Android devices to appear to their iOS peers as iOS devices. In other words, users who install the Beeper Mini app show up as a blue bubble for Apple users. Apple found out and shut it down. In a textbook maneuver, Beeper went to the FCC. It has petitioned the FCC to classify iMessage as a utility. Having been shut down by Apple, it’s hoping that the FCC can help open up the iMessage walled garden.
Author’s Note: A big thanks to Glenn Richards for bringing the filings to my attention.
Unsanctioned Use Gets Caught
Beeper Mini gives Android users the ability to show up as blue bubbles on their friends’ iOS conversations. The green/blue bubble divide goes away, and people on the blue bubble don’t know they’re talking to a non-iOS device. Apple found out and understandably shut down the app.
Beeper didn’t hack the iMessage protocol, nor did it find a back door to Apple’s servers. It simply used a widely known open-source toolkit to enable Android devices to present themselves as iOS devices. Definitely not what Apple had in mind.
If this were a game, every player is acting exactly the way they should. First, an aggressive startup (Beeper) uses a platform (iMessage) in ways it wasn’t intended. Second, the platform owner (Apple) finds out and shuts it down. At this point Beeper has four options: negotiate with Apple, litigate in court, mobilize its users, or petition the FCC.
Litigation is rarely a winning strategy, especially when the defendant is Apple. When it comes to mobilizing users, iOS users (the only ones Apple cares about) weren’t vocal enough about losing the blue bubble from their Android friends. And finally, as a product, Beeper has nothing to offer Apple. It therefore did the next logical step: Escalate to the regulator. The issue, however, is not the escalation but the request.
The Regulatory Ask
Beeper and its supporters are asking for the Commission to classify iMessage as a “telecommunications” service, popularly known as a Title II service. Beeper argues that Apple is the new phone company, the iMessage platform is the new telephone network, and the only way to make Apple capitulate is to classify iMessage as a utility.
As most advocacy efforts do, it cites precedence (including the Pulver Oder, and the DOJ Apple lawsuit) and makes an impassioned plea for forcing Apple to interoperate. Let’s, for discussion’s sake, assume a sound legal basis and focus on the request: To fix the interoperability issue by classifying iMessage a utility. This is where textbook idealism clashes with reality.
Describing a Fifty-Year-Old Law in Fifty Words
Utility in telecommunications has its roots in pole attachment. The carriers spent all the money in putting up telephone poles around people’s homes. Naturally, they wanted to maximize their investments and refused to share access. The regulator used its congressional mandate to force the issue and make the carriers cooperate.
Is App Lock-In the Same as Pole Attachment?
The problem isn’t Beeper; it didn’t do anything illegal. As innovators always do, Beeper is challenging the status quo. The problem isn’t Apple. It created its customer and is doing what it must to protect its business. The problem isn’t the regulator. When the incumbent uses its absolute power absolutely, it is the regulator who has to step in. This is the natural order of the marketplace. The problem is that the only way for the FCC to enforce interoperability is to make the incumbent’s service a utility. And fifty years later, pole attachment rules are the only way for it to do so.
When pole attachment was a big deal, the platform was wired and on poles. Today the platform is wireless and in palms. Laws written to protect the wired network no longer work in this scenario. No matter how well informed or wise the regulator, an outdated law is a dull and blunt instrument that makes her ineffective and her rulings draconian.
Yes, iMessage needs to support interoperability, but is it a utility? Should it and anyone using it be subject to USF fees? Should it be required to open up its network to any sender? What’s next? Should WhatsApp be treated the same? How about Android Messages? If Beeper got big enough, would it be willing to follow the same rules? Game theory this out, and there are only two winners: the government thanks to the rise in regulatory fees and bureaucratic filings, and spammers who will use an open network to flood it with unwanted messages under the guise of free speech, open markets, and consumer benefit. It will be auto warranty robocalls all over again.
How to Fight Apple?
Apple is a formidable, fearsome, and modern adversary. The regulator cannot fight it with antiquated laws that treat every interoperability request “like pole attachment.” In fact, the regulators who have had the most success with getting Apple to play nicely have been the ones who had modern laws to work with.
A little-known Maltese politician used a recently passed law to get Apple to ditch the lightning port in favor of USB-C. Even in messaging, Apple’s support for RCS was a peace offering to get an exception from the requirement of the EU’s Digital Markets Act for core platform services to interoperate. Some claim that Apple’s RCS support was in fact also to comply with the Chinese regulator’s requirement that all 5G devices support a singular GSMA standard.
So there is enough evidence that with updated laws, a regulator can successfully demand interoperability. The challenge is none of the consequential telecommunication laws in the US have seen a major update in decades. Even the US telecommunications act has not been updated since 1991. This has left the US regulator and the US judicial system to do the work that Congress should be doing, and even those efforts are redlining.
Finally
The real solution is one that no one wants to talk about: We need new laws. We need Congress to act. And we as industry leaders need to do our part. I empathize with Beeper’s co-founders. I’ve been in their shoes, albeit in smaller ways (and definitely not against Apple). There is no easy answer, you have to do it all: petition the regulator, and also go to your representative and senator, keep them informed, let them know your plight and let everyone know you’re talking to everyone else. You have to keep up the fight, even when the going is slow and there seems no resolution in sight.