Statutory Definitions
| 47 U.S.C. 153 "Common carrier The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier." |
47
U.S.C. § 153(51)Telecommunications carrier ::
The term “telecommunications carrier” means any provider of telecommunications services, except that such term does not include
aggregators of telecommunications services (as defined in section 226 of
this title). A telecommunications carrier shall be treated as
a common carrier under this chapter only to the extent that it is
engaged in providing telecommunications services,* except that the
Commission shall determine whether the provision of fixed and mobile
satellite service shall be treated as common carriage. |
47
U.S.C. § 153(53) Telecommunications service: The term “telecommunications service” means the
offering of telecommunications for a fee directly to the public, or to
such classes of users as to be effectively available directly to the
public, regardless of the facilities used. |
Common Carriage
United States Telecom Association v. Federal Communications Commission, 295 F.3d 1326 (D.C. Cir. 2002) "common carrier status turns on: (1) whether the carrier holds himself out to serve indifferently all potential users; and (2) whether the carrier allows customers to transmit intelligence of their own design and choosing."
NARUC II: And "whether a carrier is a common carrier . . . does not depend upon whether its charter declares it to be such . . . but upon what it does." US v. Brooklyn Eastern District Terminal, 249 US 296 (1919). Self determination is still an important element of common carriage as discussed in NARUC I, where the court pointed out that while regulators cannot create a common carrier by simply defining them as such, they do have the power to compel carriers to act as common carriers. See NARUC v. FCC, 525 F2d at 644, n 76 ("it is clear that the Commission had the discretion to require (the service provider) to serve all potential customers indifferently, thus making them common carriers"). --[NY p. 50]
Cellco P’ship v. FCC, 700 F.3d 534, 546 (D.C. Cir. 2012)
Gisbourn v. Hurst, I Salk. 249, 250, 91 Eng. Rep. 220, 220 (1710) ("[Alny man undertaking for hire to carry the goods of all persons indifferently ... is ... a common carrier.").
R. HUTCHINSON, TREATISE ON THE LAW OF CARRIERS § 47 (1879)
J. STORY, LAW OF BAILMENTS § 495 (1832);
Dwight v. Brewster, 18 Mass. (1 Pick.) 50, 55 (1822)
Allen v. Sackrider, 37 N.Y. 341, 342 (1867)
Gordon v. Hutchinson, 1Watts & Serg. 285, 286 (Pa. 1841).
Literature
Common carriage was applied to freight or carriage companies and inland and ocean water carriers. By common law, common carriers were 1) required to serve upon reasonable demand, any and all who sought out their services; 2) held to a high standard of care for the property entrusted to them; and 3) limited to incidental damages for breach of duty. -- Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecom. Pol'y 435. Sec. II (1994).
Generally, to qualify as common carriage, carriage must be offered, on demand, to the public at large or to a group of people generally, and the carrier "must hold itself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice." J Story, Law of Bailments, section 495 (1832).
T. CHITTY & L. TEMPLE, A PRACTICAL TREATISE ON THE LAW OF CARRIERS OF GOODS AND PASSENGERS BY LAND, INLAND NAVIGATION, AND IN SHIPS *2, 14-15 (1857) "To render a person liable as a common carrier, he must exercise the business of carrying as a "public employment," and must undertake to carry goods for all persons indiscriminately; and hold himself out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation pro hac vice. "
Telecommunications
47
U.S.C. § 153(50) Telecommunications :: The term “telecommunications” means
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.
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. ...
-- 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
"Telecommunications" is defined in the Act 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."21
21 47 U.S.C. § 153(43).
--In Re Implementation f the Local Competition Provisions
in the Telecommunications Act of 1996, Inter-Carrier Compensation for ISP-Bound Traffic, CC Docket No. 96-98, CC Docket No. 99-68,
Declaratory Ruling ¶ 8 (February 26, 1999)
In Re Federal-State Joint Board on
Universal Service, Report to Congress ¶ 101 (April 10, 1998) ("With
respect to the provision of pure transmission capacity to Internet
service providers or Internet backbone providers, we have concluded
that such provision is telecommunications.")
Interstate
Traffic is deemed interstate "when the communication or
transmission originates in any state, territory, possession of the
United States, or the District of Columbia and terminates in another
state, territory, possession, or the District of Columbia." In a
conventional circuit-switched network, a call that originates and
terminates in a single state is jurisdictionally intrastate, and a call
that originates in one state and terminates in a different state (or
country) is jurisdictionally interstate. --In Re Implementation of the
Local Competition Provisions in the Telecommunications Act of 1996,
Inter-Carrier Compensation for ISP-Bound Traffic, CC Docket No. 96-98,
CC Docket No. 99-68, Declaratory Ruling ¶ 18 (February 26, 1999)
Basic Service
In particular, the Commission defined “basic
service” as “a pure transmission capability over a
communications path that is virtually transparent in terms of its
interaction with customer supplied information.” Id., at 420, ¶96. By
“pure” or “transparent” transmission, the Commission meant a
communications path that enabled the consumer to transmit an
ordinary-language message to another point, with no computer processing
or storage of the information, other than the processing or storage
needed to convert the message into electronic form and then back into
ordinary language for purposes of transmitting itover the network—such
as via a telephone or a facsimile. Id., at 419–420, ¶¶94–95. Basic
service was subject to common-carrier regulation. Id., at 428, ¶114." -
NCTA v. BrandX, No. 04-277, 545 U.S. __,
Slip at 4 (S.Ct. June 27, 2005)
Computer II Inquiry, 77 FCC 2d 384 (1980),
recon. 84 FCC 2d 50 (1980), further recon. 88 FCC 2d 512 (1981), aff'd
sub nom. Computer and Communications Industry Association v. FCC, 693
F.2d 198 (D.C. Cir. 1982), cert. denied, 461 U.S. 938 (1983). In
Computer II the Commission defined "basic" services as those that
provide a "pure transmission capability over a communications path that
is virtually transparent in terms of its interaction with
customer-supplied information." Basic services are subject to regulation
"Basic service is the offering of a pure transmission capability over a
communications path that is virtually transparent in terms of its
interaction with customer supplied information.= Id. at 419-20." Computer
and Communications Industry Association v. Federal Communications
Commission, 693 F.2D 198, 204, 224 U.S.APP.D.C. 83 (D.C. Cir.
1982)
39. In Computer II, the Commission created the regulatory categories of
"basic" services and "enhanced" services in order to more clearly
distinguish regulated common carrier services from unregulated
computer-data services. It defined basic
transmission service as limited to the Title II common carrier offering
of transmission capacity for the movement of information.7676
Id. at 419-20, paras. 93-96.
--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 (February 15, 2002)
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-42A1.doc
The regulatory treatment of data communications services is governed by
the basic-enhanced service dichotomy created in the Computer II
proceeding. 4 In that proceeding, the
Commission described "basic" services as those that provide a "pure
transmission capability over a communications path that is virtually
transparent in terms of its interaction with customer-supplied
information."5
4. Amendment of Section 64.702
of the Commission's Rules and Regulations (Computer II), Final
Decision, 77 FCC 2d 384 (1980) (Computer II Final Decision), recon., 84
FCC 2d 50 (1980) (Reconsideration Order), further recon., 88 FCC 2d 512
(1981) (Further Reconsideration Order), aff'd sub nom., Computer and
Communications Indus. Ass'n v. FCC, 693 F.2d 198 (D.C. Cir. 1982),
cert. denied, 461 U.S. 938 (1983).
5. Computer II Final Decision,
77 FCC 2d at 420. "Basic services," such as "plain old
telephone service" (POTS), are regulated transmission services that are
offered under tariff pursuant to Title II of the Communications Act of
1934, as amended (the Act). In the NATA Centrex Order the
Commission discussed characteristics of "adjunct to basic services"
that facilitate the use of traditional telephone service but do not
alter the fundamental character of telephone service. See
North American Telecommunications Association, Petition for Declaratory
Ruling Under Section 64.702 of the Commission's Rules Regarding the
Integration of Centrex, Enhanced Services, and Customer Premises
Equipment, 101 FCC 2d 349, 359-361, paras. 23-28 (1985) (NATA Centrex
Order)).
-- In re US West Communications, Inc., Petition for
Computer III Waiver, Order, 11 FCC Rcd. 1195, para 2 (Nov 6, 1995)
92. We
conclude that the record in this proceeding supports our adopting a
basic/enhanced dichotomy for network services. In going
forward with a regulatory scheme that distinguishes a carrier's basic
transmission services from its enhanced services, it behooves us to
make clear our perception of what constitutes a basic
service. In so doing we are mindful of the arguments raised
by various parties that the basic service category should be broadly
construed so as to not limit the scope of regulated services.
However, based on our review of the comments and our determination,
infra, that enhanced services should not be subject to regulation, we
conclude that the parameters of a basic service should be dictated by
the purposes of the Act and the statutory scheme set forth in Title II
for the regulation of common carrier communications services.
93. A
basic transmission service is one that is limited to the common carrier
offering of transmission capacity for the movement of
information. In offering this capacity, a communications path
is provided for the analog or digital transmission of voice, data,
video, etc. information. Different types of basic services
are offered by carriers depending on a) the bandwidth desired, b) the
analog and/or digital capabilities of the transmission medium, c) the
fidelity, distortion, or other conditioning parameters of the
communications channel to achieve a specified transmission quality, and
d) the amount of transmission delay acceptable to the user. Under these
criteria a subscriber is afforded the transmission capacity to suit its
particular communications needs.
94. Traditionally, transmission capacity has been offered for
discrete services, such as telephone service. With the
incorporation of digital technology into the telephone network and the
inclusion of computer processing capabilities into both terminal
equipment located in the customer's premises and the equipment making
up a firm's 'network,' this is no longer the case. Telecommunications
service is no longer just 'plain old telephone service' to the
user. A subscriber may use telephone service to transmit
voice or data. Both domestic and international networks allow for voice
and data use of the same communications path. 32
Thus in providing a communications service, carriers no longer control
the use to which the transmission medium is put. More and more the
thrust is for carriers to provide bandwidth or data rate capacity
adequate to accommodate a subscriber's communications needs, regardless
of whether subscribers use it for voice, data, video, facsimile, or
other forms of transmission.
95.
Accordingly, we believe that a basic transmission service should be
limited to the offering of transmission capacity between two or more
points suitable for a user's transmission needs and subject only to the
technical parameters of fidelity or distortion criteria, or other
conditioning. Use internal to the carrier's facility of
companding techniques, bandwidth compression techniques, circuit
switching, message or packet switching, error control techniques, etc.
that facilitate economical, reliable movement of information does not
alter the nature of the basic service. In the provision of a
basic transmission service, memory or storage within the network is
used only to facilitate the transmission of the information from the
origination to its destination, and the carrier's basic transmission
network is not used as an information storage system. Thus,
in a basic service, once information is given to the communication
facility, its progress towards the destination is subject to only those
delays caused by congestion within the network or transmission
priorities given by the originator.
96. In
offering a basic transmission service, therefore, a carrier essentially
offers a pure transmission capability over a communications path that
is virtually transparent in terms of its interaction with customer
supplied information. It is clear that in defining a basic
service in this manner, we are in no way restricting a carrier's
ability to take advantage of advancements in technology in designing
its telecommunication network. Consistent with our Tentative Decision,
a carrier maintains its flexibility to structure its communications
network such that the network efficiently functions as the basic
building block upon which it (in the form of a separate subsidiary in
some cases) as well as other service vendors can add computer
facilities to perform myriad combinations and permutations of
information processing, data processing, process control, and other
enhanced services.
--In re Amendment of Section 64.702 of the Commission's Rules and
Regulations (Second Computer Inquiry), Docket No. 20828, Final
Decision, 77 FCC2d 384 (May 2, 1980) (Computer II Final
Decision)
Amend. of Sec. 64. 702 of the Commission's R. and Regulations (Second Computer Inquiry), 84 F.C.C.2d 50, 53-54 (F.C.C. 1980) "[a]
basic transmission service is the common carrier offering of transmission capacity for the movement of information between two or more points." - "[A] basic service is the offering of a 'transmission pipeline' in contrast to the myriad services that are dependent upon, but different in kind, from the pipeline service."
Of the three categories of services that we have established--'voice',
'basic non-voice', and 'enhanced non-voice'--'voice and 'basic
non-voice' services may employ any computer processing applications as
long as they do not change the nature of the service.
-- In re Amendment of Section 64.702 of the Commission's Rules and
Regulations (Second Computer Inquiry), Docket No. 20828, Tentative
Decision And Further Notice Of Inquiry And Rulemaking, 72 FCC2d 358
para 77 (July 2, 1979)
Moreover, because the provider of an 'enhanced non-voice' service is
dependent upon the 'basic non-voice' services of an underlying carrier,
the transmission component is isolated such that the additional
processing applications inherent in the provision of 'enhanced
non-voice' services will not impair the quality or efficiency of voice
service, or adversely affect the 'basic' transmission service of the
underlying carrier.
-- In re Amendment of Section 64.702 of the Commission's Rules and
Regulations (Second Computer Inquiry), Docket No. 20828, Tentative
Decision And Further Notice Of Inquiry And Rulemaking, 72 FCC2d 358
para 77 Para 126 (July 2, 1979)
81. Rather than
adopting the definition of data processing proposed in the Notices, we
are revising Section 64.702(a) taking into consideration the comments
and suggestions filed in this proceeding. Appendix B contains
the revised Section 64.702. This definitional structure
generically describes 'computer processing'. Moreover, a distinction is
made between the use of 'data processing' and the provision of a 'data
processing service', making it clear that data processing may be
performed as part of a regulated communications service without
necessarily resulting in the offering of a data processing
service. The concept of 'mutually exclusive' categories as
proposed in the Notice is not retained. Instead, a primary
purpose standard is incorporated which allows for ad hoc determinations
in considering the regulated or non- regulated nature of a carriers
offering. The 'hybrid data processing' classification is
retained, which continues to recognize the legitimate use of
communication facilities by unregulated entities in the provision of
data processing services. The foregoing is a more flexible
approach which does not result in a rigid definitional structure and,
we believe, provides the needed basis for determining those computer
processing applications which may be offered as part of a common
carrier service.
82. The standard for
determining permissible carrier activity in the present computer rules
is contained in the definition of message switching, i.e., '. . . the
transmission of messages between two or more points, via communication
facilities, wherein the content of the information remains
unaltered.' This fundamental characteristic of a common
carrier communications service is retained as the basis of the
definitional structure we are proposing. In essence, basic
concepts established in the First Computer Inquiry are being applied to
computer processing applications which have developed since that time
to define what market applications may be incorporated as part of a
common carrier communications service. The function or role
of communications common carriage is to provide the means for
transmitting subscriber initiated messages or information between two
or more points and having that information arrive at the destination
intended by the subscriber without the content of the message or
information being altered by the carrier in the course of transmission.
-- In re Amendment of Section 64.702 of the Commission's Rules and
Regulations (Second Computer Inquiry), Docket No. 20828, Tentative
Decision And Further Notice Of Inquiry And Rulemaking, 72 FCC2d 358
para 81 (July 2, 1979)
87. Under this section a carrier may perform data
processing as part of a communications offering as long as the data
processing directly relates to and is for the purpose of providing a
communications service or meeting its own in- house needs.
This recognizes that there are legitimate uses of data processing in
the provision of a communications service. Under this
structure the need for a 'hybrid communications' category is
eliminated. By stating that carriers may engage in data
processing and communications processing in the provision of a
communications service, explicit recognition is given to the previous
classification of a 'hybrid communications service.' However,
where the data processing performed does not result in the offering of
a 'data processing service' (as defined) and, at the same time, is not
directly related to or for the purpose of providing a communications
service, then a carrier may not engage in such data processing as part
of a regulated communications offering.
--In re Amendment of Section 64.702 of the Commission's Rules and
Regulations (Second Computer Inquiry), Docket No. 20828, Tentative
Decision And Further Notice Of Inquiry And Rulemaking, 72 FCC2d 358
(July 2, 1979)
Virgin Islands Telephone Corp. v. FCC, 198
F.3d 921 (D.C. Cir. 1999) (definitions of "telecommunications carrier"
and "telecommunications service" under 47 U.S.C. §§ 153(44), (46))
* Compare this to the FTC authority which exempts common carriers from FTC jurisdiction.
Telecommunications Services fall under Title II of the Communications Act.
Telecommunications Provider
USF Obligations
116. Permissive Contribution Authority.
The Commission observed that section 254(d) also confers "permissive
authority" to require "other providers of interstate
telecommunications" to contribute if the public interest so requires.
The Commission, citing the statutory definition, concluded that
providers of interstate telecommunications, unlike providers of
interstate telecommunications services, do not offer telecommunications
on a common carrier basis. In support of this conclusion, the
Commission referred to the legislative history in which Congress noted
the distinction between providers of interstate telecommunications and
providers of interstate telecommunications services when it stated that
an entity can offer telecommunications on a private-service basis
without incurring obligations as a common carrier.
117. The Commission found that private network operators
that lease excess capacity on a non-common carrier basis for interstate
transmissions should contribute to universal service support mechanisms
because they are "other providers of interstate telecommunications."
Similarly, the Commission concluded that payphone aggregators fall
within the Commission's permissive authority and that the public
interest requires that they contribute. The Commission sought to adopt
an approach under which contribution obligations neither affect
business decisions nor discourage carriers from offering services on a
common carrier basis. Accordingly, the Commission found that the public
interest requires both private service providers that offer interstate
telecommunications to others for a fee and payphone aggregators to
contribute to the preservation and advancement of universal service in
the same manner as carriers that provide "interstate telecommunications
services."
-- In re Federal-State Joint Board on Universal Service,
Report to Congress (April 10, 1998) (footnotes omitted).
Partial Common Carrier
Midwest Video II fn 9 ("A cable system may operate as a common carrier with respect to a portion of its service only. See National Association of Regulatory Utility Comm'rs v. FCC, 174 U.S.App.D.C. 374, 381, 533 F.2d 601, 608 (1976) (opinion of Wilkey, J.) ("Since it is clearly possible for a given entity to carry on many types of activities, it is at least logical to conclude that one can be a common carrier with regard to some activities but not others"); First Report and Order in Docket No. 18397, 20 F.C.C.2d 201, 207 (1969).")
Telecommunications Equipment
47
U.S.C. § 153(52)Telecommunications equipment ::
The term “telecommunications equipment” means equipment, other than
customer premises equipment, used by a carrier to provide
telecommunications services, and includes software integral to such
equipment (including upgrades).
Telecommunications (services offered)
- See Internet Services
- Telecommunications Services (services offered)
- Telephone PSTN (long, long distance, international, mobile)
- Telephone resale / calling card service / SIM cards
- Directory Assistance / unlisted
- Telephone numbers / number portability
- Call Forwarding / Call Busy / Caller ID / Number block
- Private Line / Circuits / Ethernet / Sonet / Frame Relay / ATM / Special Access
- ISDN
- TTY, Relay
- Telecommunications (services offered)
- Fiber / Lit Fiber / Dark Fiber
- Spectrum
- Coax
- Copper
- Pole Attachment / Conduit / Towers
- ROW
- Telecom Hotels / Data Centers / IXPs
Functionality Test :: Service Provided to the End User
"In Brand X, the Supreme Court held that it was
“consistent with the statute’s terms” for the Commission to take into
account “the end user’s perspective” in classifying a service as
“information” or “telecommunications.” 545 U.S. at 993. Specifically,
the Court held that the Commission had reasonably concluded that a
provider supplies a telecommunications service when it makes a
“‘stand-alone’ offering of telecommunications, i.e., an offered service
that, from the user’s perspective, transmits messages unadulterated by
computer processing.” Id. at 989. In the Order, the Commission
concluded that consumers perceive broadband service both as a
standalone offering and as providing telecommunications. See 2015 Open
Internet Order, 30 FCC Rcd. at 5765 ¶ 365." [USTA
v. FCC Slip 24 DC Cir. 2016]
"the Commission adopted that approach in
the Order in concluding that the term was ambiguous as to the
classification question presented here: whether the “offering”
of broadband internet access service can be considered a
telecommunications service. In doing so, the Commission
acted in accordance with the Court’s instruction in Brand X
that the proper classification of broadband turns “on the
factual particulars of how Internet technology works and how
it is provided, questions Chevron leaves to the Commission to
resolve in the first instance.” 545 U.S. at 991." [USTA v. FCC Slip 33 DC Cir. 2016]
"None of the foregoing statutory definitions rests on
the particular types of facilities used. Rather, each rests on the
function that is made available" [Internet over Cable 2002 para. 35
(Citing Stevens Report para. 59)]
"Consistent with the analysis in the Universal Service Report, we
conclude that the classification of cable modem service turns on the
nature of the functions that the end user is offered. " [Internet over
Cable 2002 para. 38]
"We are mindful that, in order to promote equity and
efficiency, we should avoid creating regulatory distinctions based
purely on technology. Congress did not limit
"telecommunications" to circuit-switched wireline transmission, but
instead defined that term on the basis of the essential functionality
provided to users. Thus, for example, we have
previously required paging providers to contribute to universal service
funding, because they are providers of "telecommunications
service." We have also required private carriers to
contribute to federal universal service funding, even though they are
not common carriers.
- In re Federal-State Joint Board on Universal Service, Report to
Congress, FCC 98-67 98 (April 10, 1998).
This functional approach is consistent with Congress's
direction that the classification of a provider should not depend on
the type of facilities used. A telecommunications
service is a telecommunications service regardless of whether it is
provided using wireline, wireless, cable, satellite, or some other
infrastructure. Its classification depends rather on the
nature of the service being offered to customers.
Stated another way, if the user can receive nothing more than pure
transmission, the service is a telecommunications service. If
the user can receive enhanced functionality, such as manipulation of
information and interaction with stored data, the service is an
information service. A functional analysis would be required
even were we to adopt an overlapping definition of "telecommunications
service" and "information service."
-- In re Federal-State Joint Board on Universal Service, Report to
Congress, FCC 98-67 59 (April 10, 1998).
Test: Convenience of network vs.
convenience of end user
95. Accordingly, we believe that a basic transmission service
should be limited to the offering of transmission capacity between two
or more points suitable for a user's transmission needs and subject
only to the technical parameters of fidelity or distortion criteria, or
other conditioning. Use internal to the carrier's facility of
companding techniques, bandwidth compression techniques, circuit
switching, message or packet switching, error control techniques, etc.
that facilitate economical, reliable movement of information does not
alter the nature of the basic service. In the provision of a
basic transmission service, memory or storage within the network is
used only to facilitate the transmission of the information from the
origination to its destination, and the carrier's basic transmission
network is not used as an information storage system. Thus,
in a basic service, once information is given to the communication
facility, its progress towards the destination is subject to only those
delays caused by congestion within the network or transmission
priorities given by the originator.
--In re Amendment of Section 64.702 of the Commission's Rules and
Regulations (Second Computer Inquiry), Docket No. 20828, Final
Decision, 77 FCC2d 384 (May 2, 1980) (Computer II Final
Decision)
Facility Indifferent
59. This functional approach is
consistent with Congress's direction that the classification of a
provider should not depend on the type of facilities used. A
telecommunications service is a telecommunications service regardless
of whether it is provided using wireline, wireless, cable, satellite,
or some other infrastructure. Its classification depends
rather on the nature of the service being offered to
customers. Stated another way, if the user can receive
nothing more than pure transmission, the service is a
telecommunications service. If the user can receive enhanced
functionality, such as manipulation of information and interaction with
stored data, the service is an information service. A
functional analysis would be required even were we to adopt an
overlapping
definition of "telecommunications service" and "information
service." If we decided that any offering that "included
telecommunications" was a telecommunications service, we would need
some test to determine whether the transmission component was
"included" as part of the service. Based on our analysis of
the statutory definitions, we conclude that an
approach in which "telecommunications" and "information service" are
mutually exclusive categories is most faithful to both the 1996 Act and
the policy goals of competition, deregulation, and universal service.
-- In Re Federal-State Joint Board on Universal Service, Report to
Congress ¶ 59 (April 10, 1998)
Not Limited to
Voice
In re Deployment of Wireline Services Offering Advanced
Telecommunications Capacity, Order on Remand, CC Docket No. 98-147, 15
FCC Rcd 385, at ¶ 41 (Dec. 23, 1999).
Adjunct Services / Ancillary Services / Telecommunications Management Exception
Adjunct Services
USTA v FCC, No. 15-1063, Slip at 11 (D.C. Cir. 2016) ("The Computer II rules also recognized a third category of services, "adjunct-to-basic" services: enhanced services, such as "speed dialing, call forwarding, [and] computer-provided directory assistance," that facilitated use of a basic service. See In re Implementation of the Non-Accounting Safeguards ("Non-Accounting Safeguards Order"), 11 FCC Rcd. 21,905, 21,958 ¶ 107 n.245 (1996). Although adjunct-to-basic services fell within the definition of enhanced services, the Commission nonetheless treated them as basic because of their role in facilitating basic services. See Computer II, 77 F.C.C. 2d at 421 ¶ 98 (explaining that the Commission would not treat as an enhanced service those services used to "facilitate [consumers'] use of traditional telephone services")... Tracking the Commission's approach to adjunct-to-basic services, Congress also effectively created a third category for information services that facilitate use of a telecommunications service. The "telecommunications management exception" exempts from information service treatment-and thus treats as a telecommunications service- "any use [of an information service] for the management, control, or operation of a telecommunications system or the management of a telecommunications service." Id.")
NATA/Centrex Order, 101 FCC 2d at 360, para. 26 (“In the case of speed dialing and call forwarding, the stored telephone numbers specified by the customer and the customer’s interaction with that stored information serve but one purpose: facilitating establishment of a transmission path over which a telephone call may be completed. . . . When a customer uses directory assistance, that customer accesses information stored in a telephone company data base. . . . An offering of access to a data base for the purpose of obtaining telephone numbers may be offered as an adjunct to basic telephone service.”).
73. Contrary to NYNEX's argument, we conclude that Congress' designation of the publishing of directories as "necessary to, or used in" the provision of a telecommunications service does not require a broad reading of section 222(c)(1)(B) that encompasses all information services. 270 We are persuaded that section 222(c)(1)(B) covers services like those formerly characterized as "adjunct-to-basic," in contrast to the information services such as call answering, voice mail or messaging, voice storage and retrieval services, fax store and forward, and Internet access services, that the parties identified in the record. 271 As noted supra, before the 1996 Act, the Commission recognized that certain computer processing services, although included within the literal definition of enhanced services, were nevertheless "clearly 'basic' in purpose and use" because they "facilitate use of traditional telephone service." 272 Examples of adjunct-to-basic services include speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller ID, call tracing, call blocking, call return, repeat dialing, call tracking, and certain centrex features. 273 With respect to these services, the Commission stated that such computer processing applications were "used in conjunction with 'voice' service" 274 and "help telephone companies provide or manage basic telephone services," as opposed to the information conveyed through enhanced services. 275 Although the Commission subsequently recognized these adjunct-to-basic services as being telecommunications services in the Non-Accounting Safeguards Order, their appropriate service classification remained unclear at the time that Congress passed the 1996 Act. Accordingly, we believe the language in section 222(c)(1)(B), "services necessary to, or used in, the provision of such telecommunications service," reaches these adjunct-to-basic services, which are "used in" the carrier's provision of its telecommunications service. On this basis, we agree with those parties arguing that services such as call waiting, 276 caller I.D., 277 call forwarding, 278 SONET, 279 and ISDN 280 would fall within the language of section 222(c)(1)(B); therefore, carriers need not obtain express approval from the customer to use CPNI to market those services. We disagree, however, that other services, now classified as information services, such as call answering, voice mail or messaging, voice storage and retrieval services, fax store and forward, and Internet access services, 281 would come within its meaning.
74. Our interpretation is supported by Congress' example of the publishing of directories. The publishing of directories, like those services formerly described as adjunct-to-basic, can appropriately be viewed as necessary to and used in the provision of complete and adequate telecommunication service. As the Commission reasoned, in connection with finding directory assistance to be an adjunct-to-basic service: "[when a customer uses directory assistance, that customer accesses information stored in a telephone company data base.... [Such service provides only that information about another subscriber's telephone number which is necessary to allow use of the network to place a call to that other subscriber." 282 As with directory assistance services, if listings are not published, many calls cannot, and will not, be made. In this way, the publishing of directories is likewise necessary to facilitate call completion. This is the view taken by numerous state courts that have explicitly found that the publishing of telephone listings is a necessary component of the provision of basic telephone service. 283 In contrast, most information services are not "used in, or necessary to" the provision of the carrier's telecommunications service. 284
[In Re In The Matter Of Implementation Of The Telecommunications Act Of 1996, CC Docket No. 96-115, Second Report and Order and Further Notice of Proposed Rulemaking (February 26, 1998)]
"In the [1985] NATA Centrex proceeding, the Commission defined adjunct services as services that 'facilitate the provision of basic services without altering their fundamental character,' and determined that such services should be treated as basic services for purposes of the Computer II rules, even though they might fall within possible literal readings of the definition of enhanced services." [In re Bell Operating Companies, Petitions for Forbearance from the Application of Section 272 of the Commc'ns Act of 1934, as Amended, to Certain Activities, 13 FCC Rcd. 2627, 2639 ¶ 18 (CCB 1998) ("272 Forbearance Order") (citation omitted).]
16. [C]arriers may use some of the processing and storage capabilities within their networks to offer optional tariffed features as 'adjunct to basic' services, if the features: (1) are intended to facilitate the use of traditional telephone service; and (2) do not alter the fundamental character of telephone service.
17. The Commission has consistently categorized a service option or feature as adjunct to basic, and thus subject to Title II regulation, if that option or feature is clearly basic in purpose and use and brings maximum benefit to the public through its incorporation in the network. 61 For example, the Commission has addressed whether access to a database through directory assistance that searches for a listing by name may be offered as an adjunct to basic telephone service. Because a subscriber using directory assistance retrieves information stored in a telephone company's computer data base, directory assistance appears to fit within the definition of an enhanced service. The Commission, however, found such access to be adjunct to basic, rather than enhanced service, because directory assistance provides only that information necessary for a subscriber to place a call. 62
18. OSD appear to be within the definition of adjunct to basic services, because they are intended to facilitate the use of traditional telephone services for TTY-TTY calls, and do not alter the fundamental character of TTY- TTY telephone service. The services provided by OSD, including operator assistance with collect and third-party billing, emergency interrupt and busy- line verification, are intended to facilitate the completion of TTY-TTY calls. As discussed above, directory assistance is already classified an adjunct to basic service. The fact that directory assistance is provided through OSD does not alter the nature of the service, or, consequently, its classification as adjunct to basic service. We therefore conclude that the services provided through OSD are subject to Title II regulation as adjunct to basic services. 63
61. Id. at 359.
62. Id. at 360. The Commission has also held that electronic directory assistance is an adjunct to basic service because, as with operator-assisted directory assistance, the purpose of the service is to facilitate the placement of telephone calls. Southwestern Bell Telephone Co., Petition for Waiver of Section 69.4(b) of the Commission's Rules, 5 FCC Rcd 3792, 3793 (Com. Car. Bur. 1990).
63. According to AT&T and MCI, tariffs have been filed with the Commission for all the underlying services that are provided through OSD as required by Section 203(a) of the Communications Act.
[In TheMatter Of Establishment Of A Funding Mechanism For Interstate Operator Services For The Deaf, RM 8585, Memorandum Opinion and Order, 11 FCC Rcd. 6808, (February 21, 1996)]
Para 2, note 5.Computer II Final Decision, 77 FCC 2d at 420. "Basic services," such as "plain old telephone service" (POTS), are regulated transmission services that are offered under tariff pursuant to Title II of the Communications Act of 1934, as amended (the Act). In the NATA Centrex Order the Commission discussed characteristics of "adjunct to basic services" that facilitate the use of traditional telephone service but do not alter the fundamental character of telephone service. See North American Telecommunications Association, Petition for Declaratory Ruling Under Section 64.702 of the Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment, 101 FCC 2d 349, 359-361, paras. 23-28 (1985) (NATA Centrex Order)).
-- In re US West Communications, Inc., Petition for
Computer III Waiver, Order, 11 FCC Rcd. 1195, para 2 (Nov 6, 1995)
26. "We conclude that the reverse-search
capability offered in conjunction with US West's EWP offering
constitutes an enhanced service. ..."
. . . .
29. In the instant case, US West has not made such
a showing, nor does it seek to argue that its reverse-search capability
constitutes a basic service. US West's EWP reverse-search capability on
its face meets two of the three characteristics that define an enhanced
service because it provides additional information (name and address
associated with a telephone number) and involves subscriber interaction
with stored information. Satisfying any one of the characteristics
would suffice to classify the service as enhanced.
30. We are not persuaded by the arguments of Bell
Atlantic and SWBT that the primary purpose of the reverse-search
capability is to facilitate the placement of a telephone call, making
the service adjunct to basic pursuant to the NATA Centrex
Order. While this service enables customers to avoid calling
a number without knowledge of the name and address of the called party,
the additional information gained through the service -- name and
address -- is not actually necessary to make the call.58
Although customers may place a call to a telephone number after
obtaining the associated name and address through a reverse-search,
commenters have not demonstrated that placement of a telephone call
would typically be the immediate next step.59
Thus, we find that the primary purpose for this service is not to
facilitate call completion. We conclude that unlike directory
assistance, which the Commission has found adjunct to basic because it
provides information necessary to make a call, the reverse-search
capability provides additional information that is not necessary to
make a call (because the subscriber already has the telephone number)
and which could be used for a number of other purposes.
31. Because US West's reverse-search capability
meets two of the Computer III tests for an enhanced service and does
not meet the NATA Centrex Order test for an adjunct to basic service,
we therefore conclude that the reverse-search capability offered in
conjunction with US West's EWP offering constitutes an enhanced service
pursuant to Section 64.702 of our rules.
--In re US West Communications, Inc., Petition for Computer III Waiver,
Order, 11 FCC Rcd. 1195 (Nov 6, 1995)
27. The
Commission defines an enhanced service as an unregulated service that
employs computer processing applications that: (1) act on the
format, content, code, protocol or similar aspects of a subscriber's
transmitted information; or (2) provide the subscriber additional,
different, or restructured information; or (3) involve subscriber
interaction with stored information.54
Notwithstanding this three-pronged test, the Commission held in the
NATA Centrex Order that carriers may use some of the processing and
storage capabilities within their networks to offer optional tariffed
features as "adjunct to basic" services, if the services: (1)
are intended to facilitate the use of traditional telephone service;
and (2) do not alter the fundamental character of telephone service. 55
28. Access
to a data base through directory assistance that searches for a listing
by name may be offered as an adjunct to basic telephone service, even
though a subscriber can access additional, different, or restructured
information. The Commission found such access to be adjunct
to basic, rather than enhanced, because directory assistance provides
only that information necessary for a subscriber to place a call. 56
The NATA Centrex Order concluded that the provision of access to a data
base for purposes other than to obtain the information necessary to
place a call will generally be found to be an enhanced
service. The presumption regarding such services, therefore,
is that they are enhanced unless they are shown to be otherwise.57
55. NATA Centrex Order, 101 FCC 2d 359-361, paras. 23-28.
56. Id. at para. 25. The Commission also concluded in the SWBT Waiver Order that electronic directory assistance is an adjunct to basic service because the purpose of the service is an electronic form of directory assistance that does not change the nature of the basic telephone service. Id. 5 FCC Rcd 3792.
57. NATA Centrex Order, 101 FCC 2d at 360-361, paras. 26, 28.
-- In re US West Communications, Inc., Petition for Computer III Waiver, Order, 11 FCC Rcd. 1195, para 2 (Nov 6, 1995)
Telecom Management Exception
See also Example :: BIAS :: Telecom Service :: Reasonable :: Telecom Management Exception
47 USC 153(24) 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.
"Even though Congress's creation of the TME may fairly be said to have "[t]rack[ed]" adjunct-to-basic in certain respects, USTA, 825 F.3d at 691, the Commission reasonably refused to be bound by facets of the analogy filtered through the lens of the Title II Order." [Mozilla, DC Cir. 2018 Slip at 32 (TME loosely tracks adjunct-to-basic; TME was the codification of MFJ language and therefore the Commission was justified in strong reliance on MFJ precedent for its interpretation)]
"the 2018 [RIF] Order seems to envision a continuum with two poles: a user-centered pole and network managementcentered pole. It locates a given service on the continuum and classifies it as falling within or outside the TME according to which pole it appears closest to. If a service is "directed at * * * customers or end users," 2018 Order ¶ 36 (quoting United States v. Western Elec. Co., No. 82-0192, 1989 WL 119060, at *1 (D.D.C. Sept. 11, 1989)), or benefits users "in significant part," id. ¶ 38, or "predominantly," id. ¶ 42, it does not call for TME classification. We view this construction as an adequately justified departure from the Title II Order's understanding of the TME in the face of a dauntingly ambiguous provision with inevitably fuzzy borderline cases and complex and possibly inconsistent (or at least orthogonal) policy implications."
Given the Commission's approach, it need not-and does not-deny that even those services properly classed under the TME benefit end users in some respect. It would be folly to deny as much given that the raison d'ętre of ISPs is to serve their customers. As one commenter notes, "To maintain * * * that something that is 'useful' to an end user cannot fall under the management exception is absurd, as the entire purpose of broadband is to be useful to end users * * * ." Public Knowledge Reply at 37, J.A. 2857; see 2018 Order ¶ 38 n.135; see also Mozilla Reply Br. 19-20.
But a rule involving a spectrum or continuum commonly requires a decider to select a point where both ends are in play. Night and day are distinguishable, however difficult classification may be at dawn and dusk. The Commission's way of construing the TME and applying its continuum-based approach is not inconsistent with Public Knowledge's point that "the entire purpose of broadband is to be useful to end users." The Commission notes that its "focus remains on the purpose or use of the specific function in question and not merely whether the resulting service, as a whole, is useful to end-users." 2018 Order ¶ 38 n.135. While DNS might play a role in managing a network, the Commission reasonably concluded that DNS "is a function that is useful and essential to providing Internet access for the ordinary consumer," id. ¶ 36, and that these benefits to the end user predominate over any management function DNS might serve. The Commission says that caching "benefits" users through "rapid retrieval of information from a local cache," id. ¶ 42, and can also be used "as part of a service, such as DNS, which is predominantly to the benefit of the user (DNS caching)," id. (emphasis added). [Mozilla Slip at 24-25]
"The Computer II rules also recognized a third category of services, “adjunct-to-basic” services: enhanced services, such as “speed dialing, call forwarding, [and] computer-provided directory assistance,” that facilitated use of a basic service. See In re Implementation of the Non-Accounting Safeguards (“Non-Accounting Safeguards Order”), 11 FCC Rcd. 21,905, 21,958 ¶ 107 n.245 (1996). Although adjunct-to-basic services fell within the definition of enhanced services, the Commission nonetheless treated them as basic because of their role in facilitating basic services. See Computer II, 77 F.C.C. 2d at 421 ¶ 98 (explaining that the Commission would not treat as an enhanced service those services used to “facilitate [consumers’] use of traditional telephone services”)." [USTA v. FCC Slip 11 DC Cir. 2016]
"Tracking the Commission’s approach to adjunct-to-basic services, Congress also effectively created a third category for information services that facilitate use of a telecommunications service. The “telecommunications management exception” exempts from information service treatment—and thus treats as a telecommunications service— “any use [of an information service] for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” Id." [USTA v. FCC Slip 12 DC Cir. 2016]
13. At least one commenter has suggested that FWD is not an "information service" because it falls within the definition's exception for the "management, control or operation of a telecommunications system or the management of a telecommunications service."46 We disagree. Examining the plain language of the definition dictates a finding that the exception could not apply to Pulver because Pulver is not managing a telecommunications system or telecommunications service. Examining the history of the text and Commission precedent supports the same result. The telecommunications management exception was initially included in the definition of "information service" contained in the Modification of Final Judgment.47 That definition explained what services the BOCs were not permitted to offer while recognizing that certain computer processing capabilities were permitted within the provision of their regulated services. Thus, the telecommunications management exception permitted the BOCs to improve their telecommunications networks without running afoul of the restriction on providing information services.48 Prior to the MFJ and divestiture, the Commission had permitted certain computing capabilities to be incorporated into AT&T's telecommunications network to facilitate and modernize the provision and use of basic telephone service.49 This does not mean that when Pulver or another information services provider offers these capabilities on a stand-alone basis that they are transformed into telecommunications services.50
46 See Letter from Kathleen M. Grillo, Verizon, to
Marlene H. Dortch, Secretary, Federal Communications
Commission, WC Docket No. 03-45 & 03-211 at 5 (filed Feb. 5,
2004) (Verizon Feb. 5 Ex Parte Letter); see also supra para. 3 and n.6.
In the Non-Accounting Safeguards Order, the Commission recognized that
certain capabilities previously treated as basic services when provided
by a carrier fell within the telecommunications management exception:
adjunct-to-basic services and "no net" protocol processing.
Implementation of the Non- Accounting Safeguards of Sections 27 and 272
of the Communications Act of 1934, as amended, First Report and Order
and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21957-58,
paras. 106-07 (1996) (Non- Accounting Safeguards Order), clarified in
Order on Reconsideration, 12 FCC Rcd 2297, 2298-99, para. 2 (1997).
47 See United States v. American Tel. & Tel. Co., 552 F. Supp.
131, 229 (DDC 1982) (subsequent history
omitted); Joint Managers' Statement, S. Conf. Rep. No. 104-230, 104th
Cong., 2d Sess. (1996) at 114.
48 See American Tel. & Tel., 552 F. Supp. at 227, 229.
49 See Amendment of Section 64.702 of the Commission's Rules and
Regulations (Second Computer Inquiry), Docket No. 20828, Final
Decision, 77 FCC 2d 384, 419-428 (1980) (Computer II Final Decision)
(noting those computer processing capabilities directly related to the
provision of the basic service that telephone companies were able to
provide as part of their tariffed basic service (later termed
"adjunct-to basic" services, see North American Telecommunications
Association Petition For Declaratory Ruling Under Section 64.702 of the
Commission's Rules Regarding the Integration of Centrex, Enhanced
Services, and Customer Premises Equipment, ENF 84-2, Memorandum Opinion
And Order, 101 FCC 2d 349, 358-61 (1985) (NATA Centrex)); Amendment of
Section 64.702 of the Commission's Rules and Regulations (Second
Computer Inquiry), Docket No. 20828, Memorandum Opinion And Order, 84
FCC 2d 50, 60-61 (1980) (Computer II Reconsideration Order)
(recognizing certain protocol
conversion capabilities may occur internal to a carrier's
network); Computer II Final Decision, 77 FCC 2d at 421; Communications
Protocols under Section 64.702 of the Commission's Rules and
Regulations, Gen. Docket No. 80-756, 95 FCC 2d 584, para. 29 (1983)
(Protocols Order).
50 Indeed, in discussing various types of signaling that occurs within
a basic service, the Commission noted that certain protocol processing
network functions intrinsic therein "may be properly associated with
basic service without changing its nature, or with an enhanced service
without changing the classification of the latter as unregulated under
Title II of the Act." Protocols Order, 95 FCC 2d at para. 15. We note
that FWD is different from signaling networks. While FWD does provide
information that members use to initiate communications among
themselves, FWD does not manage the resulting disintermediated
communication. That is managed by the members themselves. In addition,
FWD provides many features not offered by signaling networks (e.g.,
directory look-up, voice mail, emailed responses, conferencing
capabilities, and address repair).
-- In re Petition for Declaratory Ruling that pulver.com's Free World Dialup is Neither Telecommunications Nor a Telecommunications Service, WC Docket No. 03-45, Memorandum Opinion And Order (FCC February 19, 2004)
"Although the"telecommunications management exception" encompasses adjunct services, the storage and retrieval functions associated with the BOCs' automatic location identification databases provide information that is useful to end users, rather than carriers. As a consequence, those functions are not adjunct services and cannot be classified as telecommunications services on that basis." [In re Bell Operating Companies, Petitions for Forbearance from the Application of Section 272 of the Commc'ns Act of 1934, as Amended, to Certain Activities, 13 FCC Rcd. 2627, 2639 ¶ 18 (CCB 1998)]
Example :: Packet Switching
ATM, Frame Relay, Gigabit Ethernet, Special Access. Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, ¶ 9 (2005) (when used for basic transmission purposes
The synchronous X.25 interface protocol has traditionally been the most widely recognized protocol used to communicate over packet-switched networks. 5 Much of the existing terminal equipment that customers use to originate and terminate data communications between their computers and other computers, however, historically has not been designed to support the X.25 protocol. This equipment often employs an asynchronous protocol, which is used to originate and terminate traffic over ordinary voice communications lines. Thus, data communicated under asynchronous protocols must be converted to data employing synchronous X.25 protocol in order to be transmitted over a packet-switched network. Moreover, as the number of networking and terminal protocols has increased over time, so has the need to provide conversion among these protocols."
SOURCE: In The Matter Of Independent Data Communications
Manufacturers Association, Inc., Petition for Declaratory Ruling That
AT&T's InterSpan Frame Relay Service Is a Basic Service; DA
95-2190, MO&O, 1995 WL 613619, 10 FCCR. 13,717, 10 FCC Rcd.
13,717, 1 Communications Reg. (P&F) 409, 4 (October
18, 1995)
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
- -
The use of packet switching and error control techniques
"that facilitate the economical, reliable movement of [such]
information [do] not alter the nature of the basic service." 15 Thus,
for example, in subsequent decisions the Commission has determined that
packet-switched networks following X.25 protocols provide a basic
transport service under Commission Rules. 16
SOURCE: In The Matter Of Independent Data Communications
Manufacturers Association, Inc., Petition for Declaratory Ruling That
AT&T's InterSpan Frame Relay Service Is a Basic Service; DA
95-2190, MO&O, 1995 WL 613619, 10 FCCR. 13,717, 10 FCC Rcd.
13,717, 1 Communications Reg. (P&F) 409, 11 (October
18, 1995)
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - -
6. Frame relay is a
relatively new, high-speed packet-switching technology used to
communicate digital data between, among other things, geographically
dispersed local area networks (LANs). In addition, frame relay
technology often serves as the intermediary format for data traveling
between different computer systems employing different communications
protocols.
7. As the term suggests, frame
relay networks communicate "frames" containing digital data. The format
of a frame-defined by a specific interface protocol-consists of a
beginning "flag," a "header," a variable length data field, a
"trailer," and an ending "flag." The header contains routing and
congestion control information, while the trailer holds an error
control sequence enabling detection of errors within frames. Unlike the
slower X.25 packet switching protocol, frame relay switches do not
store frames until a positive acknowledgement is received from a
destination switch. When a destination switch receives a frame with
errors, it simply discards the frame, relying on higher-layer protocols
of intelligent customer premises equipment (CPE) to note the omission
and take corrective action by rerequesting transmission of the packet.
[8] This streamlined operation allows frame relay networks to operate
at significantly higher speeds than X.25 networks. In a typical frame
relay application, a LAN is linked to a device known as a "router" on
the customer premises. [9] If the router supports frame relay protocol,
it is connected to an access link which carries the frame relay traffic
to a central office port. If the router does not support frame relay, a
frame relay assembler/disassembler (FRAD) is located on a customer
premise between the router and access link to convert the data
transmitted from the router to frame relay format. [10] The central
office frame relay switch establishes a permanent virtual circuit (PVC)
connecting the access link to a communications line linking one switch
to another. While the access link may operate at speeds from 56 to over
1,000 kilobits per second (kbs), the data relay rate across the network
is limited by the transmission rate of the PVC, which varies according
to customer needs and budgets. The customer contracts with the service
provider for a specified information transmission rate. If the customer
attempts to transmit data at speeds that exceed the agreed-upon rate,
the network tries to accommodate the higher rate if capacity is
available. If the network is unable either to perform the transmission
or temporarily buffer the data, the network discards excess frames
beyond the agreed-upon rate. As with frames containing errors, frames
discarded in this fashion must be tracked by CPE.
. . . . . .
29. Under section
64.702(a) of the Commission's Rules, frame relay service constitutes an
enhanced service if it "employ[s] computer processing applications that
act on the . . . content . . . of the subscriber's transmitted
information, [or] provide[s] the subscriber . . . different, or
restructured information." AT&T contends that
modifications to the frame header that occur during network
transmission such as changes in discard eligibility or location code
render the customer data that is delivered to the terminating customer
through its frame relay service "different" from the data transmitted
by the originating customer. We disagree.
30.
Regardless of changes made to the frame header, the customer's data
contained within the frame are not modified in any way as they travel
through the network and arrive intact. Moreover, changes to
the header information such as the location code, are in some instances
responsible for the carriage of the customer's data through the network
to the proper termination point and, hence, are part of a basic
transmission service. Accordingly, we conclude that
modifications to the frame header, without more, fail to alter the
customer's data in a manner that results in the delivery of "different"
data to the termination point.
31. As
discussed above, however, frame relay networks may discard entire
frames of customer data if errors are detected in the frame or if the
customer's transmission rate exceeds the maximum rate permitted under
its agreement. In contrast to X.25 transmission networks, the
customer's CPE, not the network, must detect and compensate for such
discards. Thus, AT&T and others assert that the
customer receives "different" or "restructured" information within the
meaning of section 64.702 if the network discards eligible frames in
frame relay networks.
32. We conclude,
however, that this is a misreading of the Rule. The
functionality that AT&T relies on to argue that the data are
"different" is designed to facilitate the overall transparency and
efficiency of the frame relay service. Ultimately the data on
the receiving end is the same as what is transmitted. Thus,
discarding data is not a "service" rendered to a customer within the
meaning of section 64.702.
33. It is important
to note that the only frames that are normally discard eligible (other
than frames containing errors) are those transmitted in excess of the
contracted-for data rate. Thus, the network normally delivers
frames at the agreed-upon data rate without omission. It is
only when the customer exceeds the agreed-upon rate that frames may be
discarded, and only then if excess capacity is unavailable.
Thus, the discard feature of frame relay networks allows the network to
deliver unaltered customer data at rates exceeding minimum,
contracted-for transmission rates. The use of such a feature
to facilitate the economical, reliable movement of information in this
manner does not alter the nature of the basic
service. Nor do we view this difference between
existing basic packet-switched services (such as AT&T's ACCUNET
Packet Service) and frame relay technology as sufficient to justify
disparate treatment under Commission Rules. As a result, we
conclude that the discard feature does not render the frame relay
service an enhanced service under the Commission's rules.
34. We, therefore,
find that frame relay service offers a transmission capability that is
virtually transparent in terms of its interaction with
customer-supplied data. The service is designed to transport
customer data transparently through the network, and the service is
already provided pursuant to tariff in this manner by all but one of
the BOCs. Accordingly, we decline to conclude that
frame relay is an enhanced service.
35. The provision of
frame relay as a basic service, and the availability of basic digital
services in general, are consistent with policies established in
Computer II and Computer III, and is in the public interest.
Treating frame relay as a basic service provides competitive access to
the underlying basic service of facilities-based carriers who are often
better able to implement new communications technologies.
This access allows competing enhanced service providers to more easily
enter and compete in the market for such technologies. Thus,
under the Computer II and Computer III decisions, competitive access
has promoted the public interest by accelerating the development of
emerging technologies such as frame relay.
. . . . .
40. We conclude that
AT&T provides a basic frame relay service (alone or bundled
with enhanced protocol processing) that must be offered under
tariff. According to the InterSpan Interface Standard,
AT&T provides transport of customer data "transparently" across
the AT&T frame relay network. IDCMA argues
(and AT&T does not refute) that the vast majority of
AT&T's frame relay customers terminate to, and receive from,
the network frame relay data that do not require conversion to frame
relay protocol. Since in these cases AT&T's frame
relay service "provides a pure transmission capability in a
communication's path," without any protocol
conversion, we find that this is a basic
service. We again note that six Bell Operating
Companies (BOCs) treat frame relay as a basic transport service.
41. The
assertion by AT&T and other commenters that the enhanced
protocol conversion capabilities associated with AT&T's
InterSpan service bring it within the definition of an enhanced service
is beside the point. Under the Commission's Computer II and
Computer III decisions, AT&T must unbundle the basic frame
relay service, regardless of whether the InterSpan offering also
provides a combined, enhanced protocol conversion and transport service
for those customers who require it.
SOURCE: In The Matter Of Independent Data Communications
Manufacturers Association, Inc., Petition for Declaratory Ruling That
AT&T's InterSpan Frame Relay Service Is a Basic Service; DA
95-2190, MO&O, 1995 WL 613619, 10 FCCR. 13,717, 10 FCC Rcd.
13,717, 1 Communications Reg. (P&F) 409 (October 18, 1995)
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33. As a result of our decision to apply the structural
separation requirements to the post-divestiture BOCs' enhanced service
offerings, they could not integrate protocol
conversion with their basic services unless they obtained
waivers from our rules pursuant to the guidelines established in the
Protocols Order. Several BOCs filed petitions asking us for
permission to provide various forms of protocol conversion within their
basic networks. In November 1984, we considered the merits of
BOC requests to provide an X.25/X.75 84 internetworking protocol
conversion interface without structural separation. We
granted these requests 85 and treated this interface as one that is to
be offered under tariff in conjunction with the associated basic
services. We acknowledged that the interface would have been
used internally in the Bell System network prior to divestiture and,
accordingly, would have been an element of basic service at the time
that we defined basic service in Computer II.
34. Subsequently, in the
Asynchronous/X.25 Waiver Order, 86 we permitted several BOCs to provide
asynchronous/X.25 87 protocol conversion from equipment collocated with
their network facilities, as a component of basic, packet-switched,
data transport services. We found that the public interest
would be served both by the additional competition the BOCs would
provide to existing providers of packet-switched services and by the
real efficiencies that such collocation would permit in increased use
of the public switched network and in elimination of duplicated
facilities. Accordingly, we granted the BOCs permission to
collocate facilities, subject to three express conditions.
First, we required the BOCs to make available to competitors without
discrimination the inter-office channels from which the BOCs construct
their underlying packet-switched networks. Second, we
required the BOCs to include in tariffs for their underlying
packet-switched services an additional network utilization rate element
(NURE) to be applied to any user of asynchronous/X.25 conversion,
representing the cost, in decreased efficiency, to the underlying basic
packet service caused by the integrated enhanced protocol conversion
operations. Third, we required the BOCs to offer end-users
access to the protocol conversion offerings of their competitors that
is equal to that provided for the BOCs' own such offerings.
As a corollary to this, the BOCs' protocol operations were required to
take under tariff the intra-office connections by which they connect
with their subscribers. 88
35. By fulfilling the foregoing
conditions, the BOCs would be permitted to install, maintain, and
operate their asynchronous/X.25 conversion facilities and their
packet-switched facilities in an integrated fashion. We also
established additional conditions that the BOCs would be required to
satisfy in order to market their protocol conversion services jointly
with basic packet switching. 89
SOURCE: In the Matters of: Amendment of Sections 64.702
of the Commission's Rules and Regulations (Third Computer
Inquiry); and Policy and Rules Concerning Rates for
Competitive Common Carrier Services and Facilities Authorizations
Thereof Communications Protocols under Section 64.702 of the
Commission's Rules and Regulations, CC Docket No. 85-229, Report and
Order (June 16, 1986)
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92.
We conclude that the record in this proceeding supports our adopting a
basic/enhanced dichotomy for network services. In going
forward with a regulatory scheme that distinguishes a carrier's basic
transmission services from its enhanced services, it behooves us to
make clear our perception of what constitutes a basic
service. In so doing we are mindful of the arguments raised
by various parties that the basic service category should be broadly
construed so as to not limit the scope of regulated services.
However, based on our review of the comments and our determination,
infra, that enhanced services should not be subject to regulation, we
conclude that the parameters of a basic service should be dictated by
the purposes of the Act and the statutory scheme set forth in Title II
for the regulation of common carrier communications services.
93. A
basic transmission service is one that is limited to the common carrier
offering of transmission capacity for the movement of
information. In offering this capacity, a communications path
is provided for the analog or digital transmission of voice, data,
video, etc. information. Different types of basic services
are offered by carriers depending on a) the bandwidth desired, b) the
analog and/or digital capabilities of the transmission medium, c) the
fidelity, distortion, or other conditioning parameters of the
communications channel to achieve a specified transmission quality, and
d) the amount of transmission delay acceptable to the user. Under these
criteria a subscriber is afforded the transmission capacity to suit its
particular communications needs.
94. Traditionally, transmission capacity has been offered for
discrete services, such as telephone service. With the
incorporation of digital technology into the telephone network and the
inclusion of computer processing capabilities into both terminal
equipment located in the customer's premises and the equipment making
up a firm's 'network,' this is no longer the case. Telecommunications
service is no longer just 'plain old telephone service' to the
user. A subscriber may use telephone service to transmit
voice or data. Both domestic and international networks allow for voice
and data use of the same communications path. 32 Thus in providing a
communications service, carriers no longer control the use to which the
transmission medium is put. More and more the thrust is for carriers to
provide bandwidth or data rate capacity adequate to accommodate a
subscriber's communications needs, regardless of whether subscribers
use it for voice, data, video, facsimile, or other forms of
transmission.
95.
Accordingly, we believe that a basic transmission service should be
limited to the offering of transmission capacity between two or more
points suitable for a user's transmission needs and subject only to the
technical parameters of fidelity or distortion criteria, or other
conditioning. Use internal to the carrier's facility of
companding techniques, bandwidth compression techniques, circuit
switching, message or packet switching, error control techniques, etc.
that facilitate economical, reliable movement of information does not
alter the nature of the basic service. In the provision of a
basic transmission service, memory or storage within the network is
used only to facilitate the transmission of the information from the
origination to its destination, and the carrier's basic transmission
network is not used as an information storage system. Thus,
in a basic service, once information is given to the communication
facility, its progress towards the destination is subject to only those
delays caused by congestion within the network or transmission
priorities given by the originator.
96. In
offering a basic transmission service, therefore, a carrier essentially
offers a pure transmission capability over a communications path that
is virtually transparent in terms of its interaction with customer
supplied information. It is clear that in defining a basic
service in this manner, we are in no way restricting a carrier's
ability to take advantage of advancements in technology in designing
its telecommunication network. Consistent with our Tentative Decision,
a carrier maintains its flexibility to structure its communications
network such that the network efficiently functions as the basic
building block upon which it (in the form of a separate subsidiary in
some cases) as well as other service vendors can add computer
facilities to perform myriad combinations and permutations of
information processing, data processing, process control, and other
enhanced services.
SOURCE: In re Amendment of Section 64.702 of the
Commission's Rules and Regulations (Second Computer Inquiry), Docket
No. 20828, Final Decision, 77 FCC2d 384 (May 2, 1980) (Computer II
Final Decision)
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10.
The revision of our proposed definition also necessitates a
modification of the processing categories listed in paragraph 21 of our
Notice. Two categories were set forth therein as not being
within the ambit of our definition of data processing--'network control
and routing' and 'input/output processing.' For purposes of
clarification and in order to conform with our new proposed definition,
a restatement of these categories is now called for:
network control and routing--applications
include: message and circuit switching,[13] speed and code
conversion, pulse format conversion, transmission error detection and
correction, analog to digital and digital to analog conversion, signal
processing,[14] and time division multiplexing.
input/output processing--this category comprises the uses of
processing capability resident in a carrier network facility for the
purpose of making disparate information sources and receptors
compatible with the transmission system and with each other.
Such processing activities include those necessary for formatting,
editing, and buffering of information to make it compatible with the
electrical characteristics of different transmission media.
Since these processing activities would not constitute
data processing, they could be incorporated into a carrier's
communications offering without evoking the constraints imposed by the
maximum separation requirements. Moreover, the utilization of
these processing activities in the course of providing either a
communications or a data processing service would not necessarily, in
or of itself, change the nature of that service.
[Note 13] The categories are meant to
include packet switching (and its variations) and time-division circuit
switching. We also would consider permissible those
processing activities utilized in the provision of ancillary network
services such as automatic call-forwarding, abbreviated dialing, and
special announcements.
[Note 14] Signal processing comprises the use of processing
operations in applications which maintain the information content of an
electrical signal. These include signal detection and regeneration and
the adaptive equalization of transmission channels.
SOURCE: In re Amendment Of Section 64.702 Of The Commission's
Rules And Regulations (Computer Inquiry), Docket No. 20828,
Supplemental Notice Of Inquiry And Enlargement Of Proposed Rulemaking,
(March 8, 1977)
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21. We also wish to cite those examples of the
use of computers by carriers which would not be within the ambit of the
definition of data processing. These applications fall into two
categories:
network control and routing--applications
include: Message and circuit switching,[15] speed and code
conversion, pulse format conversion, error detection and correction,
analog to digital and digital to analog conversion, signal processing,
[16] and time division multiplexing.
input/output processing--this category comprises the uses of
a computer capability resident in a carrier network facility for the
purpose of making disparate computers and terminals compatible with
each other. Typical functions are the formatting, editing,
and buffering of data to make it compatible with the electrical
characteristics of different transmission media.
[Note 15] These categories are meant to include packet
switching (and its variations) and time-division circuit
switching. We also would consider permissible, the use of
switching computers to provide ancillary functions such as automatic
call-forwarding, abbreviated dialing, restricted dialing, and special
announcements.
[Note 16] Signal processing comprises the use of computers in
applications which maintain the information content of an electrical
signal. These include signal detection and regeneration, and
the adaptive equalization of transmission channels.
SOURCE: In re Amendment Of Section 64.702 Of
The Commission's Rules And Regulations, Docket No. 20828, Notice Of
Inquiry And Proposed Rulemaking, 61 FCC2d 103 (August 9, 1976)
