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Cybertelecom
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Notes: Telecom Act :: Info Service v. Telecom
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Telecom Act 1996
Congress has addressed the burgeoning market for
advanced computer services in the Telecommunications Act of 1996, Pub.
L. 104-104, 110 Stat. 56, through which it sought to provide a "pro-competitive,
de-regulatory national policy framework" designed to promote the "deployment
of advanced telecommunications and information technologies to all Americans
by opening all telecommunications markets to competition." H.R. Conf. Rep.
No. 104-458, at 113 (1996). To that end, the statute maintained significant
common carrier obligations on providers of "telecommunications services"
but left providers of "information services" subject to much less stringent
regulation.
This distinction tracked a series of
prior administrative decisions by the FCC. Beginning in 1980, the FCC distinguished
"basic" telecommunications services from "enhanced" information services
in the belief that ensuring access to the former would encourage competition
in the latter and provide consumers with a wider variety of information
services. In the Matter of Section 64.702 of the Comm'n's Rules & Regulations
(Second Computer Inquiry), 77 FCC2d 384, 417 (1980). The 1996 law raised
the question of whether the new broadband internet technologies qualified
as telecommunications services, information services, or a combination
of
the two.
--BrandX
v FCC, Sec. 1, Opinion page 14756, 9th Circuit Oct 6, 2003
Information Service
(20) Information service
The term ''information service'' means the
offering of a capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via
telecommunications, and includes electronic publishing, but does not include
any use of any such capability for the management, control, or operation
of a telecommunications system or the management of a telecommunications
service.
47 U.S.C. § 153(20)
The 1996 Act defines an information service as follows: "the offering of a capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via
telecommunications, and includes electronic publishing. Telecommunications
Act, 110 Stat. 59, ' 3.
"Information services" are defined in the proposed
decree at Section IV(J) as:
the offering of a capability for generating,
acquiring, storing, transforming, processing, retrieving, utilizing or
making available information which may be conveyed via telecommunications
....
Two distinctly different types of information services
fall within this general category: services which would involve no control
by AT & T over the content of the information other than for transmission
purposes (such as the traditional data processing services), and services
in which AT & T would control both the transmission of the information
and its content (such as news or entertainment). Because these two types
of services raise different concerns, they will be addressed separately.
-- United States v. AT&T, 552 F.Supp.
131, 179
(DDC 1982), aff'd sub nom. Maryland
v. United States, 460 U.S. 1001 (1983), vacated sub nom. United
States v. Western Elec. Co., slip op. CA 82-0192 (DDC Apr. 11, 1996).
Information-service providers, by contrast, are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications, see §§151–161.
NCTA v. BrandX, No. 04-277, 545 U.S. __, Slip at 4 (S.Ct. June 27, 2005)
Info Services and
Enhanced Services
Information
Service = ESP
The definitions of the terms “telecommunications service” and “information service” established by the 1996 Act are similar to the Computer II basic- and enhanced-service classifications. “Telecommunications service”—the analog to basic service—is “the offering of telecommunications for a fee directly to the public . . . regardless of the facilities used.” 47 U. S. C. §153(46). “Telecommunications” is “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” §153(43). “Telecommunications carrier[s]”—those subjected to mandatory Title II common-carrier regulation—are defined as “provider[s] of telecommunications
services.” §153(44). And “information service”—the analog to enhanced service—is “the offering of a capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via telecommunications . . . .” §153(20).
NCTA v. BrandX, No. 04-277, 545 U.S. __, Slip at 5 (S.Ct. June 27, 2005)
The Act defines an "information service" as "the offering
of a capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via telecommunications,
and includes electronic publishing, but does not include any use of any
such capability for the management, control, or operation of a telecommunications
system or the management of a telecommunications service." Section 3(20),
47 U.S.C. 153(20). We note that information services consist of all services
that the Commission previously considered to be enhanced services under
the regulatory structure it had established in the 1980 Computer II
proceeding. Amendment of Section 64.702 of the Commission's Rules and Regulations
(Computer II), Docket No. 20828, Final Decision, 77 FCC 2d 384,
435 (1980), recon., 84 FCC 2d 50 (1980), further recon.,
88 FCC 2d 512 (1981), aff'd sub nom. Computer and Communications
Industry Ass'n v. FCC, 693 F.2d 198 (D.C. Cir. 1982), cert. denied,
461 U.S. 938 (1983). Enhanced services are defined in section 64.702(a)
of the Commission's rules as "services, offered over common carrier transmission
facilities used in interstate communications, which employ computer processing
applications that act on the format, content, code, protocol or similar
aspects of the subscriber's transmitted information; provide the subscriber
additional, different, or restructured information; or involve subscriber
interaction with stored information," and include, among other things,
such services as voice mail, electronic mail, facsimile store-and-forward,
interactive voice response, protocol processing, gateway, and audiotext
information services.
-- In the matter of the Implementation
of Sections 255 and 251(a)(2) of the Communications Act of 1934, as Enacted
by the Telecommunications Act of 1996, WT Docket No. 96-198, Report And
Order And Further Notice Of Inquiry, 1999 WL 770958 (FCC), 17 Communications
Reg. (P&F) 837, ¶ 78 n. 180 (September 29, 1999).
Implementation of the Non-Accounting Safeguards of Sections 271 and
272 of the Communications Act of 1934, as amended, CC Docket No. 96-149,
First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC
Rcd 21905, 21955, ? 102 (1996) ("all of the services that the Commission
has previously considered to be 'enhanced services' are 'information services'"),
Order on Reconsideration, 12 FCC Rcd 2297 (1997), further recon. pending,
Second Report and Order, 12 FCC Rcd 15756 (1997), aff'd sub nom. Bell Atlantic
Telephone Companies, et al v. FCC, et al., 131 F.3d 1044 (D.C. Cir. 1997).
-- In the matter of the Implementation
of Sections 255 and 251(a)(2) of the Communications Act of 1934, as Enacted
by the Telecommunications Act of 1996, WT Docket No. 96-198, Report And
Order And Further Notice Of Inquiry, 1999 WL 770958 (FCC), 17 Communications
Reg. (P&F) 837, ¶ 94 n. 215 (September 29, 1999).
We concluded in the Non-Accounting Safeguards
Order that, although the text of the Commission's definition of "enhanced
services" differs from the 1996 Act's definition of "information services,"
the two terms should be interpreted to extend to the same functions. We
found no basis to conclude that, by using the term "information services,"
Congress intended a significant departure from the Commission's usage of
"enhanced services." We further explained that interpreting "information
services" to include all "enhanced services" provides a measure of regulatory
stability for telecommunications carriers and ISPs by preserving the definitional
scheme under which the Commission exempted certain services from traditional
common carriage regulation.
-- In The Matter Of Computer III Further Remand
Proceedings: Bell Operating Company Provision Of Enhanced Services, CC
Docket No. 95-20, 1998 Biennial Regulatory Review -- Review of Computer
III and ONA Safeguards and Requirements, CC Docket No. 98-10, FCC 98-8,
Further Notice of Proposed Rulemaking, ¶ 40 (January 30, 1998)
We note that the 1996 Act does not utilize the Commission's basic/enhanced
terminology, but instead refers to "telecommunications services" and "information
services." We concluded in the Non-Accounting Safeguards Order that,
although the text of the Commission's definition of "enhanced services"
differs from the 1996 Act's definition of "information services," the two
terms should be interpreted to extend to the same functions. We recently
issued a report reviewing the Commission's interpretation of the terms
"telecommunications services" and "information services." In that report,
we concluded that, in the 1996 Act, Congress intended these terms to refer
to distinct categories of services and that Congress sought "to maintain
the Computer II framework" and the basic/enhanced distinction in
its definition of "telecommunications services" and "information services."
To avoid confusion in this Further Notice, we will continue to use the
terms "basic services" and "enhanced services" to refer to the restrictions
adopted in the Computer II proceeding.
-- In the matter of 1998 Biennial Regulatory Review
-- Review of Customer Premises Equipment and Enhanced Services Unbundling
Rules in the Interexchange, Exchange Access and Local Exchange Markets,
CC Docket No. 98-183, Further Notice of Proposed Rulemaking, para 32 (October
9, 1998) (footnote numbering off)
In re Federal-State Joint Board on Universal Service, CC Docket No.
96-45, Report to Congress, 50 (1998) ("the category of information
services was essentially identical to the pre-existing category of enhanced
services").
102. We conclude that all of
the services that the Commission has previously considered to be "enhanced
services" are "information services." We are persuaded by the arguments
advanced by ITAA, CIX, and others, that the differently-worded definitions
of "information services" and "enhanced services" can and should be interpreted
to extend to the same functions. [FN232] We believe that interpreting "information
services" to include all "enhanced services" provides a measure of regulatory
stability for telecommunications carriers and ISPs alike, by preserving
the definitional scheme under which the Commission exempted certain services
from Title II regulation. We agree with ISPs that regulatory certainty
and continuity benefits both large and small service providers. [FN233]
In sum, we find no basis to conclude that by using the MFJ term "information
services" Congress intended a significant departure from the Commission's
usage of "enhanced services."
103. We also find, however, that
the term "information services" includes services that are not classified
as "enhanced services" under the Commission's current rules. Stated differently,
we conclude that, while all enhanced services are information services,
not all information services are enhanced services. As noted by U S West,
"enhanced services" under Commission precedent are limited to services
"offered over common carrier transmission facilities used in interstate
communications," whereas "information services" may be provided, more broadly,
"via telecommunications." [FN234] Further, we agree with BellSouth and
AT&T that live operator telemessaging services that do not involve
"computer processing applications" are information services, even though
they do not fall within the definition of "enhanced services." [FN235]
104. We further conclude that,
subject to the exceptions discussed below, protocol processing services
constitute information services under the 1996 Act. We reject Bell Atlantic's
argument that "information services" only refers to services that transform
or process the content of information transmitted by an end-user, because
we agree with Sprint that the statutory definition makes no reference to
the term "content," but requires only that an information service transform
or process "information." [FN236] We also agree with ITI and ITAA that
an end-to-end protocol conversion service that enables an end-user to send
information into a network in one protocol and have it exit the network
in a different protocol clearly "transforms" user information. [FN237]
We further find that other types of protocol processing services that interpret
and react to protocol information associated with the transmission of end-user
content clearly "process" such information. Therefore, we conclude that
both protocol conversion and protocol processing services are information
services under the 1996 Act.
105. This interpretation is consistent
with the Commission's existing practice of treating end-to-end protocol
processing services as enhanced services. [FN238] We find no reason to
depart from this practice, particularly in light of Congress's deregulatory
intent in enacting the 1996 Act. [FN239] Treating protocol processing services
as telecommunications services might make them subject to Title II regulation.
Because the market for protocol processing services is highly competitive,
such regulation is unnecessary to promote competition, and would likely
result in a significant burden to small independent ISPs that provide protocol
processing services. Thus, policy considerations support our conclusion
that end-to-end protocol processing services are information services.
[FN240]
106. We note that, under Computer
II and Computer III, we have treated three categories of protocol processing
services as basic services, rather than enhanced services, because they
result in no net protocol conversion to the end-user. These categories
include protocol processing: 1) involving communications between an end-user
and the network itself (e.g., for initiation, routing, and termination
of calls) rather than between or among users; 2) in connection with the
introduction of a new basic network technology (which requires protocol
conversion to maintain compatibility with existing CPE); and 3) involving
internetworking (conversions taking place solely within the carrier's network
to facilitate provision of a basic network service, that result in no net
conversion to the end-user). [FN241] We agree with PacTel that analogous
treatment should be extended to these categories of "no net" protocol processing
services under the statutory regime. [FN242] Because "no net" protocol
processing services are information service capabilities used "for the
management, control, or operation of a telecommunications system or the
management of a telecommunications service," they are excepted from the
statutory definition of information service. [FN243] Thus, "no net" protocol
conversion services constitute telecommunications services, rather than
information services, under the 1996 Act.
107. We further find, as suggested
by PacTel, that services that the Commission has classified as "adjunct-to-basic"
should be classified as telecommunications services, rather than information
services. [FN244] In the NATA Centrex order, the Commission held that the
enhanced services definition did not encompass adjunct-to-basic services.
[FN245] Although the latter services may fall within the literal reading
of the enhanced service definition, they facilitate establishment of a
basic transmission path over which a telephone call may be completed, without
altering the fundamental character of the telephone service. Similarly,
we conclude that "adjunct-to- basic" services are also covered by the "telecommunications
management exception" to the statutory definition of information services,
and therefore are treated as telecommunications services under the 1996
Act.
-- In the Matter of the Implementation of the Non-Accounting
Safeguards of Sections 271 and 272 of the Communications Act of 1934, as
Amended, Order on Reconsideration, Docket 96-149, 1997 WL 71143 (FCC),
12 FCCR. 2297, 12 FCC Rcd. 2297, 6 Communications Reg. (P&F) 972, (Feb 19, 1997)
""Enhanced services" are defined in ? 64.702(a)
of our rules: "For the purposes of this subpart, the term enhanced
services shall refer to services, offered over common carrier transmission
facilities used in interstate communications, which employ computer processing
applications that act on the format, content, code, protocol, or similar
aspects of the subscriber's transmitted information; provide the subscriber
additional different, or restructured information; or involve subscriber
interaction with stored information." The 1996 Act defines "information
services" as offering the capability for "generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available information
via telecommunications." 47 U.S.C. ? 153(20). "
In re Access Charge Reform, NPRM, Third Report and Order, and NOI, CC Docket 96-262 ? 284 n
377 (Dec. 24, 1996)
Information Service =/= Telecom
Service
See also Enhanced
Service = info + telecom.
The FCC was aware of the relationship that information services providers
often have with providers of telecommunications services, but recognized
that the two should remain distinguishable. "[W]hen an entity offers transmission
incorporating the 'capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information,' it
does not offer
telecommunications. Rather, it offers an 'information service' even
though it uses telecommunications to do so. Id. ¶ 39, at 11520 (emphasis
added). Further, the FCC recognized that the architecture of information
services would be built on top of existing telecommunications services
infrastructure, but, in terms of regulation, would still remain separate
for strong policy purposes.
The Internet and other enhanced services have been able to
grow rapidly in part because the Commission concluded that enhanced service
providers were not common carriers within the meaning of the Act. This
policy of distinguishing competitive technologies from regulated services
not yet subject to full competition remains viable. Communications networks
function as overlapping layers, with multiple providers often leveraging
a common infrastructure. As long as the underlying market for provision
of transmission facilities is competitive or is subject to sufficient pro-
competitive safeguards, we see no need to regulate the enhanced functionalities
that can be built on top of those facilities. We believe that Congress,
by distinguishing 'telecommunications service' from 'information service,' and by stating a policy goal of preventing the Internet from being fettered
by state or federal regulation, endorsed this general approach. Limiting
carrier regulation to those companies that provide the underlying transport
ensures that regulation is minimized and is targeted to markets where full
competition has not emerged. As an empirical matter, the level of competition,
innovation, investment, and growth in the enhanced services industry over
the past two decades provides a strong endorsement for such an approach.
Id. ¶ 95, 11546 (emphasis added) (footnotes omitted). "Congress intended
to maintain a regime in which information service providers are not subject
to regulation as common carriers merely because they provide their services
'via telecommunications.'" Id. ¶ 21, at 11511.
--
Vonage v. Minnesota PUC, Civil No. 03-5287, Sec. IV.A. (MJD/JGL) (DMN
October 16, 2003)
14. We recognize that the legal and policy issues associated
with classifying Internet access service as either a telecommunications
service or an information service under the Act have been raised previously,
but not fully resolved, in two Commission proceedings. Specifically,
in 1998, the Commission addressed the status of information services in
its Report to Congress on universal service. In that report,
the Commission reaffirmed its understanding that "the categories of 'telecommunications
service' and 'information service' in the 1996 Act are mutually exclusive."
The Commission generally concluded that Internet access services
are information services, not telecommunications services.
The Commission recognized, however, that its analysis focused on ISPs as
entities procuring inputs from telecommunications service providers.
Thus, classifying Internet access as an information service in this context
left open significant questions regarding the treatment of Internet (and
information) service providers that own their own transmission facilities
and that engage in data transport over those facilities to provide an information
service. In addition, the Commission did not explicitly address
the regulatory classification of wireline broadband Internet access services.
-- In Re Appropriate Framework for Broadband Access to the Internet
over Wireline Facilities, CC Docket No. 02-33, CC Dockets Nos. 95-20, 98-10,
NPRM ¶ 14 (February 15, 2002) http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-42A1.doc
77. We adopt our tentative conclusion in the NPRM that the phrases
"telecommunications" and "telecommunications services" have the general
meanings set forth in the Act. 173 Many commenters supported
this conclusion. 174 Telecommunications services, however, does
include services previously classified as adjunct-to-basic. Adjunct-to-basicservices
are services which literally meet the definition of enhanced services,
now called information services, established under the Commission's rules,175 but which the Commission has determined facilitate the completion of calls
through utilization of basic telephone service facilities and are included
in the term "telecommunications services."176 Adjunct-to-basic
services include such services as call waiting, speed dialing, call forwarding,
computer-provided directory assistance, call monitoring, caller identification,
call tracing, and repeat dialing.177
78. We decline to expand the meaning of "telecommunications
services"to include information services for purposes of section 255, as
urged by some commenters.178 In the NPRM, we recognized that
under our interpretation of these terms, some important and widely used
services, such as voicemail and electronic mail, would fall outside thescope
of section 255 because they are considered information services.179 We conclude, however, that we may not reinterpret the definition of telecommunications
services, either for purposes of section 255 only or for all Title II regulation.
First, we emphasize that the term "information services" is defined separately
in the Act.180 As we noted in the NPRM, there was no indication
in the legislative history of the 1996 Act that Congress intendedthese
terms to have any different, specialized meaning for purposes of accessibility.181
79. Furthermore, in a Report to Congress that was
released subsequent to the NPRM,182 we reiterated the
distinction between information services and telecommunications services.
Specifically, we found that "Congress intended [that] the categories of
'telecommunications service' and 'information service' to be mutually exclusive,
like the definitions of 'basic service' and 'enhanced service' developed
in our Computer II proceeding,and the definitions of 'telecommunications'
and 'information service' developed in the Modification of Final Judgment
that divested the Bell Operating Companies from AT&T."
--Implementation of Sections 255 and 251(a)(2) of the Communications
Act of 1934, as Enacted by the Telecommunications Act of 1996, WT Docket
No. 96-198, Report And Order And Further Notice Of Inquiry, 1999 WL 770958
(FCC), 17 Communications Reg. (P&F) 837, ¶ 79 (1999)
"An end-user may utilize a telecommunications service together with
an information service, as in the case of Internet access. In such
a case, however, we treat the two services separately: the first
service is a telecommunications service (e.g., the xDSL-enabled transmission
path), and the second service is an information service, in this case Internet
access."60
60See Frame Relay Order, 10 FCC Rcd at 13722-23,
PP 40-46; Report to Congress on Universal Service, at P 60; CIX Comments
(CC Docket No. 98-11) at 15.
In re Deployment of Wireline Services Offering Advanced Telecommunications
Capacity, CC Docket No. 98-147, 1998 WL 458500 (FCC), 13 FCCR. 24,012,
13 FCC Rcd. 24,012, Order, ¶ 36 (Aug. 7, 1998).
"Because information services are offered "via telecommunications,"
they necessarily require a transmission component in order for users to
access information. Accordingly, if we interpreted the statute as
breaking down the distinction between information services and telecommunications
services, so that some information services were classed as telecommunications
services, it would be difficult to devise a sustainable rationale under
which all, or essentially all, information services did not fall into the
telecommunications service category. As noted in the previous
section, we find strong support in the text and legislative history of
the 1996 Act for the view that Congress intended "telecommunications service"
and "information service" to refer to separate categories of services."
-- In re Federal-State Joint Board on Universal Service, Report to Congress,
FCC 98-67 ¶ 57 (April 10, 1998), available at http://www.fcc.gov/Bureaus/Common_Carrier/Reports/fcc98067.html.
"we clarify that the provision of transmission capacity to Internet
access providers and Internet backbone providers is appropriately viewed
as 'telecommunications service' or 'telecommunications' rather than 'information
service,'"
In re Federal-State Joint Board on Universal Service, Report to Congress,
FCC 98-67 ¶ 15 (April 10, 1998), available at http://www.fcc.gov/Bureaus/Common_Carrier/Reports/fcc98067.html
The office of Senator Stevens asserts that
information services are inherently telecommunications services because
information services are offered via "telecommunications."
We observe that ISPs alter the format of information through computer
processing applications such as protocol conversion and interaction with
stored data, while the statutory definition of telecommunications only
includes transmissions that do not alter the form or content of the information
sent. When a subscriber obtains a connection to an Internet service provider
via voice grade access to the public switched network, that connection
is a telecommunications service and is distinguishable from the Internet
service provider's service offering. The language in section 254(h)(2)
also indicates that information services are not inherently telecommunications
services. Section 254(h)(2) states that the Commission must enhance access
to advanced telecommunications and information services. If information
services were a subset of advanced telecommunications, it would be repetitive
to list specifically information services in that subsection.
--Federal-State Joint Board on Universal Service, CC Docket No. 96-45,
Report and Order, 12 FCC Rcd 8776 ¶ 789 (1997) (Universal Service
Order), as corrected by Federal-State Joint Board on Universal Service,
Errata, CC Docket No. 96-45, FCC 97-157 (rel. June 4, 1997), appeal pending
in Texas Office of Public Utility Counsel v. FCC and USA, No. 97-60421
(5th Cir. 1997) | Word
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ISP = Info Service
34. An ISP is an entity that provides its customers
with the ability to obtain a variety of on-line information through the
Internet. However, ISPs typically own no telecommunications facilities.
In order to provide those components of Internet access services that involve
information transport, ISPs lease lines, and otherwise acquire telecommunications,
from telecommunications providers -- LECs, CLECs, IXCs and others.74
ISP's purchase use of analog and digital lines from LECs to connect to
their dial-in subscribers. Under one typical arrangement, an ISP customer
dials a seven-digit number to reach the ISP server in the same local calling
area. To provide transport within its network, the ISP may purchase interexchange
telecommunications services from telecommunications carriers, and for transport
beyond its network, the ISP either purchases additional interexchange telecommunications
from telecommunications carriers, or makes arrangements to interconnect
its leased facilities with one or more Internet backbone providers.75 Thus, the information service is provisioned by the ISP "via telecommunications"
including interexchange telecommunications although the Internet service
itself is an "information service" under section 3(2) of the Act, rather
than a telecommunications service.76
74. See Federal - State Joint
Board on Universal Service, CC Docket No. 96-45, > Report to Congress,
13 FCC Rcd at 11540, P 81 (1998)(hereinafter SS7FUniversal Service Report
to Congress").
75. Id. at 13 FCC Rcd 11532-11533, P
66.
76. Id. at 11536, P73. In fact, a service
would not satisfy the definition of "information service" unless it had
an underlying "telecommunications" component. Further, the telecommunications
inputs underlying Internet services are subject to the universal service
contribution mechanism. As the Commission has previously explained, "Companies
that are in the business of offering basic interstate telecommunications
functionality
to end users are 'telecommunications carriers," and therefore are covered
under the relevant provisions of > sections 251 and > 254 of the Act. Id.
at P105
Deployment of Wireline Services Offiering Advanced Telecommunications
Capability, CC Docket No 98-147, Order on Remand, 15 FCC Rcd 385, ¶ 34 (1999).
We find that Internet access services are appropriately
classed as information, rather than telecommunications, services.
Internet access providers do not offer a pure transmission path; they combine
computer processing, information provision, and other computer-mediated
offerings with data transport. Senators Stevens and Burns suggest
that services provided by Internet access providers should be deemed to
fall on the telecommunications side of the line. When an Internet
service provider transmits an email message, they maintain, it transmits
"information of the user's choosing, without change in the form or content
of the information as sent or received." Changes such as the addition of
message headers, they argue, are inconsequential: "If the information
chosen by the user has the same form (e.g., typewritten English) and content
(e.g., directions to Washington, D.C.) as sent and received, then a 'telecommunication'
has occurred." 143 Senator McCain, by contrast, urges that electronic
mail, voice mail and Internet access are information services, because
they furnish the capabilities to store, retrieve, or generate information.
-- Federal-State Joint Board on Universal Service,
CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 11501 ¶ 73 (1998).
Information Service Over Telecom
(not service)
19. The Act defines "telecommunications" as "the transmission,
between or among points specified by the user, of information of the user's
choosing, without change in the form or content of the information as sent
and received." Under this definition, an entity provides telecommunications
only when it both provides a transparent transmission path and it does
not change the form or content of the information. If this
offering is made directly to the public for a fee, it is deemed a "telecommunications
service." On the other hand, "[w]hen an entity offers subscribers
the 'capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing or making available information via telecommunications,' it does not provide telecommunications, it is using telecommunications."
-- In Re Appropriate Framework for Broadband Access to the Internet
over Wireline Facilities, CC Docket No. 02-33, CC Dockets Nos. 95-20, 98-10,
NPRM ¶ 13 (February 15, 2002) http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-42A1.doc
13. Because wireline broadband Internet access services fuse communications
power with powerful computer capabilities and content, these services appear
to fall within the class of services that the Commission has traditionally
identified as "information services," which blend communications with computer
processing. Yet, broadband offerings may differ in form and scope from
previous information services. The Commission has viewed information
services such as voice mail, telemessaging, or credit card validation to
be an incremental extension of the existing narrowband telecommunications
network. It has described information services as using the "existing
telephone network to deliver services that provide more than a basic transmission
offering," or as "enhancements that build upon basic services." Today, however, the capabilities made possible by broadband capable facilities
enable the deployment of new, bandwidth-intensive, multimedia information
services, which in turn drive the use and further deployment of broadband
capable facilities.
. . . .
15. We again confronted the issue of how to address the regulatory
treatment of Internet access service provided over a carrier's own transmission
facilities in the recent Missouri/Arkansas 271 Order.
Specifically, SBC argued in that proceeding that it provides three categories
of DSL-related services: retail telecommunications services which it offers
for resale at a discount, wholesale telecommunications services which it
offers to unaffiliated ISPs, and retail information services. With
respect to the latter two categories of services, SBC argued that it does
not provide DSL telecommunications service at retail and thus, had no obligation
to make these services available for resale pursuant to the section 251(c)(4)
discount. We concluded that neither the Act nor Commission precedent
explicitly addressed the situation where an incumbent LEC does not offer
DSL transport at retail, but instead offers only an Internet access service. ...
16. ... We tentatively conclude that wireline broadband Internet access
services - whether provided over a third party's facilities or self-provisioned
facilities - are information services subject to regulation under Title
I of the Act, and we ask for comment on this tentative conclusion." ...
17. In this section, we examine the appropriate classification
for wireline broadband Internet access service. As discussed more
fully below, we tentatively conclude that, as a matter of statutory interpretation,
the provision of wireline broadband Internet access service is an information
service. Specifically, we tentatively conclude that when an entity
provides wireline broadband Internet access service over its own transmission
facilities, this service, too, is an information service under the Act.
In addition, we tentatively conclude that the transmission component of
retail wireline broadband Internet access service provided over an entity's
own facilities is "telecommunications" and not a "telecommunications service." We seek comment on these tentative conclusions and ask additional questions
with regard to the proper classification of wireline broadband Internet
access service.
-- In Re Appropriate Framework for Broadband Access to the Internet
over Wireline Facilities, CC Docket No. 02-33, CC Dockets Nos. 95-20, 98-10,
NPRM ¶ 13 (February 15, 2002) http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-42A1.doc
20. Applying this statutory framework, we tentatively conclude that
providers of wireline broadband Internet access service offer more than
a transparent transmission path to end-users and offer enhanced capabilities.
Thus, we tentatively conclude that this service is properly classified
as an "information service" under section 3 of the Act. We base this tentative conclusion on the fact that providers of wireline
broadband Internet access provide subscribers with the ability to run a
variety of applications that fit under the characteristics stated in the
information service definition.
21. For example, in the case where a wireline broadband Internet access
service allows end-users to retrieve files from the World Wide Web, an
end-user must have the capability to interact with information stored on
the facilities of the provider of the wireline broadband Internet access
service. Furthermore, to the extent to which a provider offers end-users
the capability to store files on service provider computers to establish
"home pages" on the World Wide Web, the consumer is utilizing a "capability
for . storing . or making available information" to others. It seems,
from these factual situations, and others, that providers of wireline broadband
Internet access services provide end-users with more than pure transmission,
"between or among points selected by the user, of information of the user's
choosing, without change in the form or content of the information service."
Therefore, we tentatively conclude that Congress intended the definition
of information service to include the capabilities provided by wireline
broadband Internet access services. As mentioned above, we have interpreted
the categories of information service and telecommunications service to
be mutually exclusive. In defining "information service," Congress
recognized that a transmission component is embedded within, and not separate
and distinct from, the information service. As such, we view wireline
broadband Internet access service as not consisting of two separate services,
but as a single integrated offering to the end-user. We seek comment
on this tentative conclusion and the supporting statutory analysis. In particular, we ask parties to offer any factual evidence that would
suggest a contrary application of the statute.
. . . . .
24. We analyze whether wireline broadband Internet access service provided
over the provider's own facilities is an information service, a telecommunications
service, or both. As an initial matter, we tentatively conclude that
nothing about the nature of wireline broadband Internet access services
offered over a provider's own facilities changes the fact that the end-user
service is an information service. Consistent with the statutory
analysis described above, a provider of end-user wireline broadband Internet
access service delivered over its own facilities provides the end-user
the "capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via telecommunications."
We believe that the end user is receiving an integrated package of transmission
and information processing capabilities from the provider. We believe
that the fact that the provider owns the transmission does nothing to change
the nature of the service to the end-user. Accordingly, we
tentatively conclude that wireline broadband Internet access service provided
over a provider's own facilities is an information service.
25. Additionally, we now tentatively conclude that, as a logical extension
of our determination that the provision of wireline broadband Internet
access service over a provider's own facilities is an information service,
the transmission component of the end-user wireline Internet access service
provided over those facilities is "telecommunications" and not a "telecommunications
service." As stated above, an entity provides "telecommunications"
(as opposed to merely using telecommunications) when it both provides a
transparent transmission path and it does not change the form or content
of the information. The provision of telecommunications rises to
the level of a "telecommunications service" when it is offered "for a fee
directly to the public." As stated above, we tentatively conclude
that providers of wireline broadband Internet access service that provision
the service over their own facilities do not offer "telecommunications
for a fee directly to the public." Indeed, it seems as if a provider
offering the service over its own facilities does not offer "telecommunications"
to anyone, it merely uses telecommunications to provide end-users with
wireline broadband Internet access services, which, for the reasons we
discuss above, we believe is an information service. Therefore, we
tentatively conclude that in the case where an entity combines transmission
over its own facilities with its offering of wireline Internet access service,
the classification of that input is telecommunications, and not a telecommunications
service. We seek comment on these tentative conclusions and the statutory
analysis underlying them.
-- In Re Appropriate Framework for Broadband Access to the Internet
over Wireline Facilities, CC Docket No. 02-33, CC Dockets Nos. 95-20, 98-10,
NPRM ¶ 13 (February 15, 2002) http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-42A1.doc
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