Internet over Wireline
|This holding has been superceded by Open Internet.|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|
- Earthlink v. FCC, case no. 05-5153 (3rd Cir) filed 11/23/05
- Earthlink, Inc. v. FCC & USA, No. 05-1087 (DC Cir.)
- US court upholds FCC order easing broadband rules (Net over DSL), Reuters 10/18/2007
WC DOCKET NO. 05-271 Comments Due Jan. 17, 2006 Replies due Mar. 1, 2006 Consumer Protection in a Broadband Era
- On September 23, 2005, the Commission released the Notice of Proposed Rulemaking in WC Docket No. 05-271 (NPRM). In the NPRM, the Commission sought comment on the need for any non-economic regulatory requirements necessary to ensure that consumer protection needs are met by all providers of broadband Internet access service, regardless of the underlying technology. A summary of the NPRM was published in the Federal Register on October 17, 2005, triggering the cycle for comments and reply comments. - Public Notice Oct. 17
- The Federal Communications Commission (Commission) initiates this rulemaking to explore whether regulations we would adopt pursuant to the Commission's ancillary jurisdiction under Title I of the Communications Act (Act) should apply to broadband Internet access service, regardless of the underlying technology providers use to offer the service. The rulemaking seeks comment on whether the imposition of regulations in the areas of consumer privacy, unauthorized changes to service, truth-in-billing, network outage reporting, discontinuance of service, rate averaging requirements, and the corresponding ability of consumers to take advantage of Commission avenues for resolution of these consumer protection issues, is desirable and necessary as a matter of public policy, or whether we should rely on market forces to address some or all of the areas listed. The rulemaking also explores whether there are other areas of consumer protection not listed above for which the Commission should impose regulations. Overall, this rulemaking will determine whether any non-economic regulatory requirements are necessary to ensure that consumer protection needs are met by all providers of broadband Internet access service. -- 70 Fed. Reg. 60259 Oct. 17, 2005(
- Public Notice Oct. 17
- 70 Fed. Reg. 60259 Oct. 17, 2005
- 09/23/2005 FCC Adopts Policy Statement on Broadband Internet Access. CC Docket Nos. 02-33, 01-337, 95-20, and 98-10. GN Docket No. 00-185. CS Docket No. 02-52. Policy Statement: Word | Acrobat | CT Copy Order HTML |
- FCC Press Release FCC Adopts Policy Statement New Principles Preserve and Promote the Open and Interconnected Nature of Public Internet Aug. 5 2005
- Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Universal Service Obligations of Broadband Providers; 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; Conditional Petition of the Verizon Telephone Companies for Forbearance Under 47 U.S.C. § 160(c) with Regard to Broadband Services Provided via Fiber to the Premises; Petition of the Verizon Telephone Companies for Declaratory Ruling or, Alternatively, for Interim Waiver with Regard to Broadband Services Provided via Fiber to the Premises; Consumer Protection in the Broadband Era, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14855, para. 1 (2005) (respectively Wireline Broadband Internet Access Services Order and Consumer Protection in the Broadband Era NPRM), petitions for review pending, Time Warner Telecomms. v. FCC, No. 05-4769 (and consolidated cases) (3rd Cir. filed Oct. 26, 2005)
- 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, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-33, 98-10, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986, 14987-88, para. 4 (2005) (Internet Policy Statement).
- 12/1/05 Petition for Recon filed by Verizon
- 9/23/2005 FCC Eliminates Mandated Sharing Requirement on Incumbents' Wireline Broadband Internet Access Services. WC Docket Nos. 05-271 and 04-242. CC Docket Nos. 98-10, 95-20, 02-33, and 01-337. R&O/NPRM: Word | Acrobat
- Chairman Martin Press Statement: Word | Acrobat
Abernathy Statement: Word | Acrobat
Copps Statement: Word | Acrobat
Adelstein Statement: Word | Acrobat
- Press Release Aug 5 2005 Notice of Proposed Rulemaking :: APPROPRIATE FRAMEWORK FOR BROADBAND ACCESS TO THE INTERNET OVER WIRELINE FACILITIES., FCC 9/20/2005
- Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Universal Service Obligations of Broadband Providers, CC Docket No. 02-33, Notice of Proposed Rulemaking, 17 FCC Rcd 3019 (2002) (Wireline Broadband NPRM)
- APPROPRIATE FRAMEWORK FOR BROADCAST ACCESS TO THE INTERNET OVER WIRELINE FACILITIES UNIVERSAL SERVICE OBLIGATIONS OF BROADBAND PROVIDERS 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.. (Dkt No. 95-20, 98-10, 02- 33). Action by: The Commission. Adopted: 02/14/2002 by NPRM. (FCC No. 02-42).
- APPROPRIATE FRAMEWORK FOR BROADBAND ACCESS TO THE INTERNET OVER WIRELINE FACILITIES. Found ComTel has shown good cause for an extension of the deadline for filing comments and reply comments in this proceeding. (Dkt No. 95-20, 98-10, 02-33). Action by: Deputy Chief, Common Carrier Bureau. Comments Due: 05/03/2002. Reply Comments Due: 06/03/2002. Adopted: 03/22/2002 by ORDER. (DA No. 02-704). CCB , FCC 3/25/02
- Statement by Assistant Secretary Nancy J. Victory commending the Federal Communications Commission for initiation of broadband proceeding., NTIA 2/15/02
- 13. Because wireline broadband Internet access services fuse communications power with powerful computer capabilities and content, these services appear to fall within the class of services that the Commission has traditionally identified as "information services," which blend communications with computer processing. Yet, broadband offerings may differ in form and scope from previous information services. The Commission has viewed information services such as voice mail, telemessaging, or credit card validation to be an incremental extension of the existing narrowband telecommunications network. It has described information services as using the "existing telephone network to deliver services that provide more than a basic transmission offering," or as "enhancements that build upon basic services." Today, however, the capabilities made possible by broadband capable facilities enable the deployment of new, bandwidth-intensive, multimedia information services, which in turn drive the use and further deployment of broadband capable facilities.
. . . .
15. We again confronted the issue of how to address the regulatory treatment of Internet access service provided over a carrier's own transmission facilities in the recent Missouri/Arkansas 271 Order. Specifically, SBC argued in that proceeding that it provides three categories of DSL-related services: retail telecommunications services which it offers for resale at a discount, wholesale telecommunications services which it offers to unaffiliated ISPs, and retail information services. With respect to the latter two categories of services, SBC argued that it does not provide DSL telecommunications service at retail and thus, had no obligation to make these services available for resale pursuant to the section 251(c)(4) discount. We concluded that neither the Act nor Commission precedent explicitly addressed the situation where an incumbent LEC does not offer DSL transport at retail, but instead offers only an Internet access service. ...
16. ... We tentatively conclude that wireline broadband Internet access services - whether provided over a third party's facilities or self-provisioned facilities - are information services subject to regulation under Title I of the Act, and we ask for comment on this tentative conclusion." ...
17. In this section, we examine the appropriate classification for wireline broadband Internet access service. As discussed more fully below, we tentatively conclude that, as a matter of statutory interpretation, the provision of wireline broadband Internet access service is an information service. Specifically, we tentatively conclude that when an entity provides wireline broadband Internet access service over its own transmission facilities, this service, too, is an information service under the Act. In addition, we tentatively conclude that the transmission component of retail wireline broadband Internet access service provided over an entity's own facilities is "telecommunications" and not a "telecommunications service." We seek comment on these tentative conclusions and ask additional questions with regard to the proper classification of wireline broadband Internet access service.
-- In Re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-33, CC Dockets Nos. 95-20, 98-10, NPRM ¶ 13 (February 15, 2002) http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-42A1.doc
20. Applying this statutory framework, we tentatively conclude that providers of wireline broadband Internet access service offer more than a transparent transmission path to end-users and offer enhanced capabilities. Thus, we tentatively conclude that this service is properly classified as an "information service" under section 3 of the Act. We base this tentative conclusion on the fact that providers of wireline broadband Internet access provide subscribers with the ability to run a variety of applications that fit under the characteristics stated in the information service definition.
21. For example, in the case where a wireline broadband Internet access service allows end-users to retrieve files from the World Wide Web, an end-user must have the capability to interact with information stored on the facilities of the provider of the wireline broadband Internet access service. Furthermore, to the extent to which a provider offers end-users the capability to store files on service provider computers to establish "home pages" on the World Wide Web, the consumer is utilizing a "capability for . storing . or making available information" to others. It seems, from these factual situations, and others, that providers of wireline broadband Internet access services provide end-users with more than pure transmission, "between or among points selected by the user, of information of the user's choosing, without change in the form or content of the information service." Therefore, we tentatively conclude that Congress intended the definition of information service to include the capabilities provided by wireline broadband Internet access services. As mentioned above, we have interpreted the categories of information service and telecommunications service to be mutually exclusive. In defining "information service," Congress recognized that a transmission component is embedded within, and not separate and distinct from, the information service. As such, we view wireline broadband Internet access service as not consisting of two separate services, but as a single integrated offering to the end-user. We seek comment on this tentative conclusion and the supporting statutory analysis. In particular, we ask parties to offer any factual evidence that would suggest a contrary application of the statute.
. . . . .
24. We analyze whether wireline broadband Internet access service provided over the provider's own facilities is an information service, a telecommunications service, or both. As an initial matter, we tentatively conclude that nothing about the nature of wireline broadband Internet access services offered over a provider's own facilities changes the fact that the end-user service is an information service. Consistent with the statutory analysis described above, a provider of end-user wireline broadband Internet access service delivered over its own facilities provides the end-user the "capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications." We believe that the end user is receiving an integrated package of transmission and information processing capabilities from the provider. We believe that the fact that the provider owns the transmission does nothing to change the nature of the service to the end-user. Accordingly, we tentatively conclude that wireline broadband Internet access service provided over a provider's own facilities is an information service.
25. Additionally, we now tentatively conclude that, as a logical extension of our determination that the provision of wireline broadband Internet access service over a provider's own facilities is an information service, the transmission component of the end-user wireline Internet access service provided over those facilities is "telecommunications" and not a "telecommunications service." As stated above, an entity provides "telecommunications" (as opposed to merely using telecommunications) when it both provides a transparent transmission path and it does not change the form or content of the information. The provision of telecommunications rises to the level of a "telecommunications service" when it is offered "for a fee directly to the public." As stated above, we tentatively conclude that providers of wireline broadband Internet access service that provision the service over their own facilities do not offer "telecommunications for a fee directly to the public." Indeed, it seems as if a provider offering the service over its own facilities does not offer "telecommunications" to anyone, it merely uses telecommunications to provide end-users with wireline broadband Internet access services, which, for the reasons we discuss above, we believe is an information service. Therefore, we tentatively conclude that in the case where an entity combines transmission over its own facilities with its offering of wireline Internet access service, the classification of that input is telecommunications, and not a telecommunications service. We seek comment on these tentative conclusions and the statutory analysis underlying them.
-- In Re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-33, CC Dockets Nos. 95-20, 98-10, NPRM ¶ 13 (February 15, 2002) http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-42A1.doc
Federal Communications Commission
Washington, D.C. 20554
In the Matters of
Appropriate Framework for Broadband
Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services
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
CC Docket No. 01-337
CC Docket Nos. 95-20, 98-10
CS Docket No. 02-52
Adopted: August 5, 2005 Released: September 23, 2005
By the Commission:
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.
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
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
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 )).
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).
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).
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”).
|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.
- Ashish Shah, Douglas C. Sicker, Dale Hatfield , Thinking About Openness in the Telecommunications Policy Context, TPRC 9/13/03
- William H. Lehr, R. Glenn Hubbard ,Economic Case for Voluntary Structural Separation, TPRC 9/13/03
- Mark Cooper, Steve Cooper , Hope and Hype v. Reality: The Role of the Commercial Internet in Democratic Discourse and Prospects for Institutional Change, TPRC 9/13/03
- Putting broadband on high speed New public policies to encourage rapid deployment by Stephen Pociask July 2002 EPI Study (broadband cable and broadband DSL should be regulated with parity)
- Roger Noll, Resolving Policy Chaos in High Speed Internet Access, SSRN 10/9/02
- Cherry, Utilizing "Essentiality of Access" Analyses to Mitigate Risky, Costly, and Untimely Government Interventions in Converging Telecommunications Technologies and Markets, TPRC 9/18/02
- Roger Noll, Resolving Policy Chaos in High Speed Internet Access, SSRN 9/4/02