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Federal Internet Law & Policy
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Enhanced Service Provider / Information Service
Dont be a FOOL; The Law is Not DIY


The first issue for the Commission in the Computer Inquiries was to distinguish between computers that facilitate the transmission of communications and computers with which people interact.  This exploration resulted in the "enhanced service" and "basic service" distinction.

Basic telecommunications service is defined as "the offering of a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information." [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).  See also 47 U.S.C. § 153(43).]

Enhanced service, essentially, is defined as everything else.  This is the category of Internet Service Providers.  In order to devise a bright line test, the Commission determined that where a service is offered with any level of enhancement, it is generally considered an enhanced service:

For the purpose of this subpart, the term 'enhanced service' shall refer to services, offered over common carrier transmission facilities used in interstate communications, which employ computer processing applications that act on the format, content, protocol or similar aspects of the subscriber's transmitted information; provide the subscriber additional, different, or restructured information; or involve subscriber interaction with stored information.

47 C.F.R. § 64.702(a)

Examples of enhanced services include online service, computer bulletin boards, video dial tone, voice mail, electronic publishing, and others.  The mere fact that a network is packet-switched does not necessarily mean that it is an enhanced service.

The implication of the distinction is that basic telecommunications service is regulated as common carriage under Title II of the Communications Act; Enhanced services are not regulated under Title II [47 C.F.R. § 64.702(a).] (for example, ESPs are example from certain access charges).

The Telecommunications Act of 1996 defined "Information Service" as

the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing. 

Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (codified in scattered sections of 47 U.S.C. §§ 151-170).  This is essentially the same definition of Information Services that was used by the Federal Court in the Modified Final Judgment which broke up AT&T and devised how BOCs would be permitted to operate.  See United States v. AT&T, 552 F.Supp. 131, 179 (DDC 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983), vacated sub nom. United States v. Western Elec. Co., slip op. CA 82-0192 (DDC Apr. 11, 1996) (defining "information services" as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing or making available information which may be conveyed via telecommunications .....").

The Commission has determined that "information services consist of all services that the Commission previously considered to be enhanced services" (however, the Commission has also determined that while all enhanced services are information services, not all information services are enhanced services). [In re The Implementation of Sections 255 and 251(a)(2) of the Communications Act of 1934, as Enacted by the Telecommunications Act of 1996, WT Docket No. 96-198, Report and Order And Further Notice Of Inquiry,  74 (September 29, 1999); In re The Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as Amended, First Report and Order and Notice of Proposed Rulemaking, Docket 96-149, 11 FCCR. 21,905, 13 FCCR. 11,230, 11 FCC Rcd. 21,905, 13 FCC Rcd. 11,230, 5 Communications Reg. (P&F) 696,  102 (December 24, 1996).]

Once crucial difference, however, was that the Computer Inquiries created a dichotomy between services (enhanced service versus basic service); the pivotal question was "what service does the end user receive." [See Internet over Wireless para 20 ("In both the cable and wireline contexts, the Commission focused on the end-user’s experience in defining cable modem and wireline broadband Internet access service.")] (see also Layered Mode)). The Telecommunications Act created a non-symetrical dichotomy between a service on the one hand (information service) and a technology on the other (telecommunications). This non-symetrical dichotomy would become the bane of the FCC as it moved forward attempting to apply these codified (can no longer be changed by regulatory act) definitions in a broadband context.

Computer Inquires Telecom Act of 1996
Enhanced Service
Information Service
over
over
Basic Service

The classification of "Information Service" was a pivotal issue in the Internet over Broadband, VoIP, and Network Neutrality proceedings.  The FCC has ruled that Internet over DSL, Cable, wireless, and powerline are "information services" and therefore not telecommunications services. These holdings have been superceded by the 2015 Open Internet Order.


Applications, Services, Content
Internet
Not Declared
Not Declared
Network

 

Activity that Facilitates Service
Classification*
Citation
Applications
Newsgroups Enhanced Stevens Report ¶¶ 77, 76; Internet over Cable 2002 para. 38.
Processing: word processing, Arithmetic, Computer, Data

Enhanced

CII Tentative ¶ 13; CII Supp ¶ 9; CII NOI ¶ 17-18; CII Tentative ¶ 13; CII Supp ¶ 9; CII NOI ¶ 17-18; CII NOI ¶ 18; 47 C.F.R. § 64.702(a); Sec. 255 Order, ¶ 16; Computer II Tentative Decision, ¶ 87; Computer III R&O ¶ 10; Petition USTelecom2013 ¶ 20 (data processing); Computer III Further NPRM 1998 ¶ 1 (data processing)
Telephony (VoIP)

Enhanced

Computer II Final Decision ¶ 93; FWD MO&O

Text Messaging:e-mail; paging

Enhanced

Stevens Report ¶¶ 78, 98; FWD MO&O; BOC Petition Order 13770-774, App. A. Access Charge Report, R&O n 498; Computer III Further NPRM 1998 ¶ 1(email); Internet over Cable 2002 para. 38.

Video Dial Tone Enhanced In re Bell Atlantic Telephone Companies, Offer of Comparably Efficient Interconnection to Providers of Video Dialtone-Related Enhanced Services, DA 95-1283, Order (June 9, 1995) (hereinafter Bell Atlantic's CEI Plan)
Voice Mail; Voice Storage Enhanced CPE Order 2001 ¶ 2; FWD MO&O; Stevens Report, ¶ 73; BOC Petition Order 13770-774, App. A; Computer II Final Decision, ¶ 98; , In re Southwestern Bell CEI Plan for the Provision of Voice Messaging Services, DA 88-1469, Memorandum Opinion and Order, 3 FCC Rcd. 6912, 65 Rad. Reg. 2d (P&F) 527,  1 (September 29, 1988); Petition USTelecom2013 ¶ 20; Computer III Further NPRM 1998 ¶ 1

WWW

Enhanced

Stevens Report ¶¶ 77, 76; Internet over Cable 2002 para 38. 

Alarm Monitoring Enhanced Access Charge Report, n 498 ; Petition USTelecom2013 ¶ 20.
Call Answering Enhanced Stevens Report, ¶ 73; BOC Petition Order 13770-774, App. A
Code Conversion

Enhanced

CII NOI ¶ 18; 47 C.F.R. § 64.702(a); Sec. 255 Order, ¶ 16
Fax Store and Forward Enhanced Computer III Further NPRM 1998 ¶ 1
Format Processing Enhanced 47 C.F.R. § 64.702(a)
Reverse Directory Assistance Enhanced
IP
Address Translation Enhanced Stevens Report at 75
Caching Basic OI 2015 para 356
DNS

Enhanced

Basic

Internet over Cable, DR ¶ 37-38 (The DNS is an online data retrieval and directory service)

Open Internet 2015, para 356, 366

Gateway Enhanced BOC Petition 13770-774, App. A; Stevens Report at 75; Petition USTelecom2013 ¶ 20 (dial up dateway to online databases); Computer III Further NPRM 1998 ¶ 1 (gateways to online directories).
Internet Access over Telecom Service

Basic*

Enhanced

*BASIC Comsat Order (suggesting pure Internet access as a basic service when not bundled with any enhanced services);

Stevens Report at 101, ¶ 73; In re Bell Atlantic Telephone Companies Offer of Comparably Efficient Interconnection to Providers of Internet Access Services, CCBPol 96-09, Order (June 6, 1996).

IP Numbers Basic OI 2015, para 315 (We conclude that, as with DNS functions, the IP conversion functionality is akin to traditional adjunct-to-basic services, which fall under the telecommunications systems management exception)
Process Control Enhanced CII Tentative ¶ 13; CII Supp ¶ 9; CII NOI ¶ 17-18
Protocol Processing

Basic

Enhanced

47 C.F.R. § 64.702(a); Sec. 255 Order, ¶ 16; CPE Order 2001 ¶ 2; CPE Further Notice 1998 ¶ 1 n 2; CIII R&O 1996 ¶ 7; Non Accounting Safeguards Order on Recon ¶ 2; Frame Relay Order ¶¶ 7, 14-16; BrandX, at 4
Physical Network Layer
ADA; Accommodations; OSD; TTY Basic Sec. 255 Order, ¶ 17-18; Interstate Operator Services For The Deaf, MO&O ¶ 18
Bandwidth Compression Basic CII Final ¶ 95
Call Blocking; Forwarding; Return; Tracing; Caller ID Basic Stevens Report, ¶ 73; Computer II Final Decision, ¶ 98
Call Setup, Tracking, Monitoring, Termination, Waiting Basic Non Accounting Safeguards Order on Recon ¶ 2; Frame Relay Order ¶ 14-16; Stevens Report, ¶ 73
Circuit switching Basic CII Final ¶ 95
Companding techniques Basic CII Final ¶ 95
Congestion Control Basic Frame Relay Order, ¶ 7
Dialing: Repeat, Speed Basic Stevens Report, ¶ 73

Directory Assistance; Publishing Directories; Addressing information

Basic

 

Sec. 255 Order, ¶ 17-18; FWD Order; Stevens Report ¶ 73; Interstate Operator Services For The Deaf, MO&O; US West Petition ¶ 26; CII NOI ¶ 18; NATA/Centrex Order, 101 FCC 2d at 360, para. 26

 

Encryption Basic Computer II Final Decision, ¶ 98
Error Control; Correction Basic CII Final ¶ 95; Frame Relay Order at 11; CII NOI ¶ 18.  See also telegraph cases dealing with error correction
ISDN Basic Stevens Report ¶ 73
Itemized Bill Basic Computer IIFinal Decision, ¶ 98
Message or Packet Switching Basic CII Final ¶ 95; CII NOI ¶ 18; Frame Relay Order, at 11; Telenet Order (under Computer I)
Packet Switched :: ATM, Frame Relay, Gigabit Ethernet, Special Access Basic In re 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, Memorandum Opinion and Order, 10 FCCR. 13,717, 10 FCC Rcd. 13,717, 1 Communications Reg. (P&F) 409,  4 & 11 (October 18, 1995) (hereinafter Frame Relay) (concluding that frame relay and X.25 services are basic services); 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); 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, 22 FCC Rcd 18705, ¶ 9 (2007) (gigabit ethernet service); Open Internet Order 2015, ¶ 420 (“the Ethernet market . . . is regulated under Title II.”).
Protocol Processing: IP-in-the-middle Basic Frame Relay Order ¶ 6; Calling Card DR&O; AT&T IP Telephony Petition
Routing Basic Non Accounting Safeguards Order on Recon ¶ 2; Frame Relay Order ¶ 14-16
Sonet Basic Stevens Report ¶ 73
store and forward

Basic

Enhanced

CII Final ¶ 95; Brandx at 4; Computer III R&O para 10.  See also telegraph cases (store and forward no problem)

Stevens Report ¶ 73; BOC Petition Order 13770-774, App. A; Petition USTelecom2013 ¶ 20; Computer III Further NPRM 1998 ¶ 1

telegraph; Basic Telegraph; *But see ECOM MO&O (Pre CII Decision holding that USPS email service would be telecom service).
Telephony (POTS) Basic Computer III Further NPRM 1998 n. 3 (POTS)
Traffic Management Study Basic Computer II Final Decision, ¶ 98.

* These findings represent questions presented to the FCC; it is possible that while that FCC finds that an activity, in the context of facilitating a basic service, is a basic service, it was never asked whether it, in the context of facilitating an enhanced service, was an enhanced service. It could be either based on the activity it helps facilitate. For example, security that facilitates the operation of a basic telecommunications service is a basic service; security that facilitates an enhanced information service is an enhanced service. In the table above,

See also Notes : Enhanced Services/ Information Services

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