Cybertelecom
Cybertelecom
Federal Internet Law & Policy
An Educational Project

Internet over Wireline

Dont be a FOOL; The Law is Not DIY


This holding has been superceded by Open Internet.
Summary: Internet over DSL is an Information Service. It is not over a Telecommunications Service and therefore Title II and the Computer Inquiries do not apply.
This proceeding incorporates the Computer III proceeding.
Affirmed on Appeal

Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, 20 F.C.C.R. 14853 (2005)

Press Release August 5, 2005 FCC Eliminates Mandated Sharing Requirement on Incumbents’ Wireline Broadband Internet Access Services

Decision Places Telephone and Cable Companies on Equal Footing CC Docket 02-33

Washington, D.C. – The Federal Communications Commission today adopted policies that will bring more and better broadband services to consumers by eliminating facilities sharing requirements on facilities-based wireline broadband Internet access service providers.

The changes will enable wireline broadband Internet access providers to respond quickly to consumer demand with efficient, innovative services and spur more vigorous head-to-head competition with broadband services provided over other platforms. The Commission’s action responds to market and technological changes marked by growth in the use of the Internet for communications and the availability of Internet service from multiple broadband pipelines, including cable, wireless, satellite, and power line networks.

The Report and Order adopted by the Commission puts wireline broadband Internet access service, commonly delivered by digital subscriber line (DSL) technology, on an equal regulatory footing with cable modem service, currently the market leader. This approach is consistent with a recent U.S. Supreme Court decision upholding the Commission’s light regulatory treatment of cable modem service. Consistent regulatory treatment of competing broadband platforms will enable potential investors in broadband network platforms to make market-based, rather than regulation-driven, investment and deployment decisions.

Specifically, the Commission determined that wireline broadband Internet access services are defined as information services functionally integrated with a telecommunications component. In the past, the Commission required facilities-based providers to offer that wireline broadband transmission component separately from their Internet service as a stand-alone service on a common-carrier basis, and thus classified that component as a telecommunications service. Today, the Commission eliminated this transmission component sharing requirement, created over the past three decades under very different technological and market conditions, finding it caused vendors to delay development and deployment of innovations to consumers.

To ensure a smooth transition, the Order requires that facilities-based wireline broadband Internet access service providers continue to provide existing wireline broadband Internet access transmission offerings, on a grandfathered basis, to unaffiliated ISPs for one year. The Order also requires facilities-based providers to contribute to existing universal service mechanisms based on their current levels of reported revenues for the DSL transmission for a 270-day period after the effective date of the Order or until the Commission adopts new contribution rules, whichever occurs earlier. If the Commission is unable to complete new contribution rules within the 270-day period, the Commission will take whatever action is necessary to preserve existing funding levels, including extending the 270-day period or expanding the contribution base.

The Order also allows wireline providers the flexibility to offer the transmission component of the wireline broadband Internet access service to affiliated or unaffiliated ISPs on a common-carrier basis, a non-common carrier basis, or some combination of both. Some rural incumbent local exchange carriers, or LECs, have indicated their members may choose to offer broadband Internet access transmission on a common carrier basis.

In a Notice of Proposed Rulemaking, the Commission seeks comment on whether it should develop a framework for consumer protection in the broadband age – a framework that ensures that consumer protection needs are met by all providers of broadband Internet access service, regardless of the underlying technology.

The NPRM on Comsumer Protection in a Broadband Era is being tracked on a separate page

Litigation

Regulatory Proceeding

Before the 
Federal Communications Commission 
Washington, D.C. 20554

 

In the Matters of

 

Appropriate Framework for Broadband

Access to the Internet over Wireline Facilities

 

Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services

 

Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review – Review of Computer III and ONA Safeguards and Requirements

 

Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities

 

Internet Over Cable Declaratory Ruling

 

Appropriate Regulatory Treatment for Broadband Access to the Internet Over

Cable Facilities

 

 

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CC Docket No. 02-33

 

 

CC Docket No. 01-337

 

 

 

CC Docket Nos. 95-20, 98-10

 

 

 

 

 

GN Docket No. 00-185

 

 

 

 

CS Docket No. 02-52

POLICY STATEMENT

 

Adopted: August 5, 2005 Released: September 23, 2005

 

By the Commission:

 

INTRODUCTION

The availability of the Internet has had a profound impact on American life. This network of networks has fundamentally changed the way we communicate.1 It has increased the speed of communication, the range of communicating devices and the variety of platforms over which we can send and receive information.2 As Congress has noted, “[t]he rapidly developing array of Internet . . . services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.”3 The Internet also represents “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”4 In addition, the Internet plays an important role in the economy, as an engine for productivity growth and cost savings.5

In section 230(b) of the Communications Act of 1934, as amended (Communications Act or Act), Congress describes its national Internet policy. Specifically, Congress states that it is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet”6 and “to promote the continued development of the Internet.”7 In section 706(a) of the Act, Congress charges the Commission with “encourag[ing] the deployment on a reasonable and timely basis of advanced telecommunications capability” – broadband – “to all Americans.”8

In this Policy State ment, the Commission offers guidance and insight into its approach to the Internet and broadband that is consistent with these Congressional directives.

DISCUSSION

The Communications Act charges the Commission with “regulating interstate and foreign commerce in communication by wire and radio.”9 The Communications Act regulates telecommunications carriers, as common carriers, under Title II.10 Information service providers, “by contrast, are not subject to mandatory common-carrier regulation under Title II.”11 The Commission, however, “has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications.”12 As a result, the Commission has jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner. Moreover, to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers, the Commission adopts the following principles:

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet , consumers are entitled to access the lawful Internet content of their choice.
  • To encourage broadband de ployment and preserve and promote the open and interconnected nature of the public Internet , consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.13
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.14

CONCLUSION

The Commission has a duty to preserve and promote the vibrant and open character of the Internet as the telecommunications marketplace enters the broadband age. To foster creation, adoption and use of Internet broadband content, applications, services and attachments, and to ensure consumers benefit from the innovation that comes from competition, the Commission will incorporate the above principles into its ongoing policymaking activities.15

FEDERAL COMMUNICATIONS COMMISSION

 

Marlene H. Dortch

Secretary

1 The Internet is “the international computer network of both Federal and non-Federal interoperable packet switched data networks.” 47 U.S.C. § 230(f)(1). The Internet is also described as “the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.” 47 U.S.C. § 231(e)(3). The Supreme Court has described the Internet as a “network of interconnected computers.” National Cable & Telecommunications Ass’n v. Brand X Internet Services, 125 S. Ct. 2688, slip op. at 2 (2005) (NCTA v. Brand X); see also Reno v. ACLU, 521 U.S. 844, 849-50 (1997). No single entity controls the Internet; rather it is a “worldwide mesh or matrix of hundreds of thousands of networks, owned and operated by hundreds of thousands of people.” John S. Quarterman & Peter H. Salus, How the Internet Works¸http://www.mids.org/works.html (visited Dec. 17, 2003) (quoted at IP-Enabled Services, WC Docket No. 04-36, Notice of Proposed Rulemaking, 19 FCC Rcd 4863, 4869 n.23 (2004) ( IP-Enabled Services NPRM )).

2 IP-Enabled Services NPRM, 19 FCC Rcd at 4869-70, para. 8.

3 47 U.S.C. § 230(a)(1).

4 47 U.S.C. § 230(a)(3).

5See , e.g., Hal Varian et al., The Net Impact Study: The Projected Economic Benefits of the Internet in the United States, United Kingdom and Germany, available at: http://www.netimpactstudy.com/NetImpact_Study_Report.pdf (January 2002) (visited July 31, 2005).

6 47 U.S.C. § 230(b)(2).

7 47 U.S.C. § 230(b)(1).

8 47 U.S.C. § 157 nt. (incorporating section 706 of the Telecommunications Act of 1996, Pub. Law No. 104-104, 110 Stat. 56 (1996)).

9 47 U.S.C. § 151.

10See NCTA v. Brand X, slip op. at 1.  

11Id. at 3.

12Id. at 3-4. We also note that the Enforcement Bureau recently entered into a consent decree to resolve an investigation with respect to the blocking of ports used for voice over Internet Protocol (VoIP). See Madison River LLC and Affiliated Companies, File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (Enf. Bur. 2005).

13See Hush-A-Phone Corp. v. United States , 238 F.2d 266, 269 (D.C. Cir. 1956); Use of the Carterfone Device in Message Toll Telephone Service, 13 FCC 2d 420 (1968).

14See Preamble, Telecommunications Act of 1996, P.L. 104-104, 100 Stat. 56 (1996) (enacting 1996 Act “to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies”).

15 Accordingly, we are not adopting rules in this policy statement. The principles we adopt are subject to reasonable network management.

 

Hearings

Summary: Internet over DSL is an Information Service over a Telecommunications Service (Title II and Computer Inquiries apply)
In this order, the FCC concluded that Sec. 706 gave it no independant regulatory authority to act. The FCC would change this conclusion in the Open Internet Order.

In re Deployment of Wireline Services Offering Advanced Telecommunications Capability, 13 F.C.C.R. 24012, 24014, 24029–30 (1998) (aka "Advanced Services Order")

"The Commission then classified Digital Subscriber Line (DSL) services—broadband Internet service furnished over telephone lines—as “telecommunications services.” DSL services, the Commission concluded, involved pure transmission technologies, and so were subject to Title II regulation. Id. at 24030–31 ¶ 35. A DSL provider could exempt its Internet access services, but not its transmission facilities themselves, from Title II common carrier restrictions only by operating them through a separate affiliate (i.e., a quasi-independent ISP). Id. at 24018 ¶ 13." - Verizon v. FCC, No. 11-1355, Slip at  9 (D.C. Cir. Jan. 14, 2014)

The FCC rejected arguments that Sec. 706 granted it independant authority to take regulatory action in this space.

Papers

News