In proceedings going back over 30 years, the FCC has distinguished between telecom service providers and Internet service providers (also known as Enhanced Service Providers). This history has generally advances two policies. First, ISPs are "unregulated" by the FCC, meaning such things as ISPs do not pay long distance access charges, ISPs do not pay universal service fees (directly), and ISPs are not required by the Communications Act to make their services available to the disabled (Sec. 255). Second, the FCC sought to protect ISPs from anticompetitive behavior by the Bell telephone companies. These rules, known as the Computer Inquiries, are designed to protect ISPs from cross subsidization and discrimination, require unbundling of enhanced services from basic telecom, and to create a level playing field.
This discussion sets forth the enforcement options available before the FCC in the event that you believe that you have been a victim of a violation of these rules. As always, it is recommended that you consult your attorney.
Depending on your situation, you might choose option number one: filing a formal complaint. This is a full blown litigation. And pursuant to Section 208 of the Communications Act (47 USC § 208), you may bring this complaint in federal district court or at the FCC in Washington, D.C. (you must choose one or the other – the choice is mutually-exclusive).
In federal district court, you will of course need to follow the Federal Rules of Civil Procedure. Before the FCC, the rules for how to proceed can be found at section 1.720 of title 47, Code of Federal Regulations. These rules explain how to file the complaint, how discovery will take place, and the rules for an administrative hearing should one be necessary.
An important advantage of a formal complaint is that you can ask for and be awarded monetary damages. When drafting up your complaint, it is important to be careful to specify the relief that you desire. It is surprising how many times individuals will make compelling cases, but leave judges in a quandary because the complainant did not ask for any relief.
This action is not to be taken lightly. The process is involved. If you chose option number one, you are likely to want to consult with an attorney before bringing your case.
Information on filing a formal complaint including filing fees and forms can be found at Taking Legal Action.
THE ROCKET DOCKET
There is a saying that “justice delayed is justice denied.” This is as true in communications as it is anywhere. A problem with formal proceedings is that they can be lengthy, taking years before resolution. When a small ISP has to confront a large telephone carrier, this difference can mean death. Even where the complaint of the ISP is justified, a delayed formal process can go on so long that the small business is bankrupt prior to gaining relief. Larger corporations can ride out the storm using the depth of their financial resources.
Being responsive to this and other concerns, the FCC has implemented a new rocket docket for formal complaints. This goes along with the major restructuring at the FCC, placing all enforcement activities that had occurred in different offices within the agency in one Enforcement Bureau. With the new rocket docket, an individual filing a formal complaint can request expedited treatment. If granted, this proceeding will be set on a calendar with deadlines in order to resolve it within 60 days. This is good news for businesses that would suffer from lengthy litigation.
The rocket docket adopts lessons learned from rocket dockets that exist in the judicial arena. The lesson is that cases get resolved through alternative dispute resolution. In the past, attorneys would jostle for position for months as they attempted to settle cases. Sometimes they thought they would lose advantage if they made the first offer. Other times they did not have the skill to accurately evaluate their cases. The new rocket docket incorporates mediation into the process. The parties are forced to sit down with each other, flesh out the issues, and see if they can resolve the dispute. This is prior to the complaint even being filed.
Formal complaints are potentially expensive for small businesses. Formal complaints is a forum where large telecommunications carriers sue each other over things like settlement issues. It is not always the best fit for ISP issues. There are other options.
Informal consumer complaints are proceedings where you basically write a letter to the FCC stating your claim, attaching all relevant evidence, and indicating the relief sought. This is not really right options for ISPs. The Informal Complaint proceeding is really a creature for individual consumers. Perhaps a consumer is complaining about slamming or perhaps they are complaining about minute rounding by a wireless carrier. The consumer's letter is served on the telephone carrier who has 30 days to respond to the FCC on how they made good on the complaint. Many times the complaint, like minute rounding, is not something that violates FCC rules. Other times, if it is serious, the informal complaint can be acted on by the FCC who can turn it into an investigation. Ultimately, however, informal complaints are not taken as seriously as formal complaints. You do not have the right to monetary damages although you might get a mistake on your bill corrected. For these reasons, its really not the best option for an ISP. See FCC Consumer Facts: Procedures for Filing a Consumer Complaint. | FCC Consumer Complaint Form.
FCC INVESTIGATIONS & ENFORCEMENT
A final possibility is to have the FCC initiate an investigation. Instead of the aggrieved party raising the issue before the FCC and having the FCC resolve the dispute, the FCC now stands as a complaining party. Where there seems to be widespread problems, the FCC may decide to actively investigate on its own and to take enforcement action against violators. The FCC has strong enforcement authority that includes the imposition of financial penalties (Notice of Apparent Liability for Forfeiture) and the removal of licenses. In a notorious case, one wireless carrier was fined $2 million where the wireless company erected an antenna tower in violation of FAA rules and took 5 months to correct it.
To get the FCC to initiate an investigation, you are needed. In some ways, this is your opportunity to informally come before the FCC. You do not need to file a formal complaint. You do not need to initiate a litigation. In order to get relief, you can informally appear before the FCC and explain your situation. You might write the Enforcement Bureau Investigations and Hearing Division a letter detailing where you think FCC rules are being violated, including any evidence or explanation that you think is relevant and useful. Again, in order for Enforcement Bureau to act, your situation must be substantiated as best as possible. If you do not wish to initiate a proceeding yourself with a formal complaint, consider contacting the Enforcement Bureau and let them know the full details of your situation.
Statute of Limitations: For the FCC to impose a fine, it generally must act within one year of the alleged rule violation [except in the case of 47 USC 202(c) (discrimination), 47 USC 203(e) (charges), and 47 USC 220(d) (accounts, records, and memoranda) where the FCC must act within 5 years].
THIS AINT NO DISCO
A number of ISPs have appeared before the FCC in rulemaking proceedings, but not in enforcement proceedings. The two should not be confused. An enforcement proceeding ain't no rulemaking.
In a rulemaking proceeding, you are asked to comment on a draft change to regulations. In your comments, you can say anything. Allegation, speculation, assertions, accusation, and finger pointing are all okay. However, these are all ineffective in an enforcement proceeding. With enforcement, you need substantiation, specification, validation, confirmation, corroboration, and authentication.
A FINAL THOUGHT
In the Computer III Remand Report and Order, the FCC promised to vigilantly enforce the rules that protect ISPs from anticompetitive behavior.
We believe that competitive ISPs will themselves monitor CEI compliance vigilantly, and will call the Commission's attention to any failure by a BOC to follow through on its CEI responsibilities . . .The Commission will not hesitate to use its enforcement authority, including the Accelerated Docket or revised complaint procedures, to review and adjudicate allegations that a BOC is falling short of fulfilling any of its CEI obligations.
The message: if you want justice, you must be involved. While the FCC has articulated that it will act, and the process of doing so has been laid out above, nothing can be done without you.