Cybertelecom Federal Internet Law & Policy An Educational Project

Notes :: Title II

Derived From: Petition of AT&T Inc. for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Its Broadband Services, Memorandum Opinion And Order, WC Docket No. 06-125, para2 3-5 (Oct. 12, 2007)

Title II of the Act and the Commission's implementing rules impose both economic and non-economic regulation on common carriers. Generally speaking, the most extensive regulations are imposed on dominant carriers (i.e ., those with individual market power). These carriers are subject to price cap or rate-of-return regulation, and must file tariffs for many of their interstate telecommunications services - on either seven or fifteen days' notice - and usually with supporting data. See 47 U.S.C. §§ 203(b), 204(a)(3); 47 C.F.R. §§ 61.38, 61.41, 61.58; Implementation of Section 402(b)(1)(A) of the Telecommunications Act of 1996 , CC Docket No. 96-187, Report and Order, 12 FCC Rcd 2170, 2182, 2188, 2191-92, 2202-03, paras. 19, 31, 40, 67 (1997) ( Tariff Streamlining Order ); see also Access Charge Reform , CC Docket Nos. 96-262, 94-1, 98-157, CCB/CPD File No. 98-63, Fifth Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd 14221, 14241, para. 40 (1999) ( Pricing Flexibility Order ) (allowing price cap LECs to file tariffs for new services on one day's notice), aff'd, WorldCom, Inc. v. FCC , 238 F.3d 449 (D.C. Cir. 2001).

In contrast, nondominant carriers are generally not subject to direct rate regulation and may file tariffs, on one day's notice and without cost support, which are presumed lawful. 47 C.F.R. §§ 1.773(a)(ii), 61.23(c); Tariff Filing Requirements for Nondominant Carriers , CC Docket No. 93-36, Order, 10 FCC Rcd 13653, 13653-54, paras. 3-4 (1995). In addition, applications to discontinue, reduce, or impair service are subject to a 60-day waiting period for dominant carriers, as opposed to a 31-day period for nondominant carriers. 47 C.F.R. § 63.71(c). Finally, dominant carriers must follow more stringent procedures under section 214 of the Act for certain types of transfers of control for which nondominant carriers are accorded presumptive streamlined treatment. 47 C.F.R. § 63.03(b).

The Act and our rules impose additional obligations on the BOCs, independent incumbent LECs, or incumbent LECs generally. If a service falls under Title II, it also falls under the Computer Inquiries.

• “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.” 47 U.S.C. § 153(51)
• See “A person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this [Act].” 47 U.S.C. §332(c)(2)
• Cellco Partnership v. FCC, 700 F.3d 534 (D.C. Cir. 2012) ("data roaming rule imposed no per se common carriage requirements because it left “substantial room for individualized bargaining and discrimination in terms.” Cellco, 700 F.3d at 548. The rule “expressly permit[ted] providers to adapt roaming agreements to ‘individualized circumstances without having to hold themselves out to serve all comers indiscriminately on the same or standardized terms.’” Id.")

Title II

Section	Description
Sec. 201	(a) It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor; and, in accordance with the orders of the Commission, in cases where the Commission, after opportunity for hearing, finds such action necessary or desirable in the public interest, to establish physical connections with other carriers, to establish through routes and charges applicable thereto and the divisions of such charges, and to establish and provide facilities and regulations for operating such through routes. (b) All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful: Provided, That communications by wire or radio subject to this chapter may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as the Commission may decide to be just and reasonable, and different charges may be made for the different classes of communications: Provided further, That nothing in this chapter or in any other provision of law shall be construed to prevent a common carrier subject to this chapter from entering into or operating under any contract with any common carrier not subject to this chapter, for the exchange of their services, if the Commission is of the opinion that such contract is not contrary to the public interest: Provided further, That nothing in this chapter or in any other provision of law shall prevent a common carrier subject to this chapter from furnishing reports of positions of ships at sea to newspapers of general circulation, either at a nominal charge or without charge, provided the name of such common carrier is displayed along with such ship position reports. The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.
Sec. 202	providers of basic services must § 202(a) engage in no “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services,” and § 202(b) charge “just and reasonable” rates
Sec. 206	Carrier's liability for damages
Sec. 207	Recovery for Damages
Sec. 208	All common carriers, moreover, are subject to a formal complaint process under which any person may complain to the Commission about anything the carrier may do that is contrary to the provisions of the Act. 47 U.S.C. § 208.
Sec 209
Sec 214	47 U.S. Code § 214 - Extension of lines or discontinuance of service; certificate of public convenience and necessity. See International Sec. 214 Authorizations.
Sec. 216	Receivers and Trustees; Application of Chapter
Sec. 217	Agents’ acts and omissions; liability of carrier
Sec. 222	facilitate the delivery of emergency services. 7 U.S.C. § 222(d)(4), (g). meet standards regarding the privacy of their customers' information, 47 U.S.C. § 222(a)-(c), (f).
Sec. 224	Pole Attachments
Sec. 225	Telecommunications services for hearing-impaired and speech-impaired individuals
Sec. 229	CALEA
Sec. 251	Interconnection Independent incumbent LECs, moreover, are subject to certain structural separation requirements if they wish to provide in-region, interstate, interexchange telecommunications services other than through resale. 47 C.F.R. § 64.1903. Incumbent LECs must meet additional obligations, including the interconnection, collocation, and other obligations set forth in section 251(c) of the Act and the Commission's implementing rules. 47 U.S.C. § 251(c).
Sec. 254	Universal Service These include requirements that carriers contribute to federal universal service support mechanisms on an equitable and nondiscriminatory basis, 47 U.S.C. § 254(d).
Sec. 255	Telecom Access for People with Disabilities
Sec. 257	Elimination of Market Barriers for entrepreneurs and other small businesses
Sec. 271	Interconnection Under section 271 of the Act, BOCs were required to demonstrate compliance with certain market-opening requirements, including, inter alia , interconnection and nondiscriminatory access to network elements, directory assistance, databases and signaling before providing in-region, interLATA long distance service. 47 U.S.C. § 271. The BOCs must continue to comply with such market-opening requirements. See 47 U.S.C. § 271(d)(6).
Sec. 272	Non Accounting Safeguards

See Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411 (1994) (CMRS Second Report & Order) (forbearing from various Title II requirements for CMRS).

Chill on Investment

past application of Title II regulations, and even the threat of Title II regulation, has not chilled investment. Statement of Chairman Tom Wheeler Before the Committee on the Judiciary,U.S. House of Representatives, “Wrecking the Internet to Save It? The FCC’s Open Internet Rule,” https://apps.fcc.gov/edocs_public/attachmatch/DOC-332695A1.pdf, at 3 (Mar. 25, 2015); see also Open Internet Order ¶¶ 409-420.