Computer Inquiries |
- Computer I
- Computer II
- - Computer II Ref
- Computer III
- - Computer III Ref
- Information Service / ESP
- Net over Cable
- Net over DSL
- Net over Wireless
- Net Over Powerline
- Layered Model Regulation
- Access Charges
- - CPE
- - Info Services
- Network Info Disclosure
- Network Neutrality
- Common Carriage
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."11
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. 12
Examples of enhanced services include Internet access service,13 online service, computer bulletin boards, video dial tone,14 voice mail,15 electronic publishing, and others.16 The mere fact that a network is packet-switched does not necessarily mean that it is an enhanced service.17
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 II18 (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."19 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).20
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." 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.
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, and powerline are "information services" and therefore not telecommunications services. The FCC reportedly is also considering declaring that Internet over wireless is an "information service."
Activity that Facilitates Service Classification* Citation ADA; Accommodations; OSD; TTY Basic Sec. 255 Order, ¶ 17-18; Interstate Operator Services For The Deaf, MO&O ¶ 18 Address Translation Enhanced Steven's Report at 75 Alarm Monitoring Enhanced Access Charge Report, n 498 Bandwidth Compression Basic CII Final ¶ 95 Call Answering Enhanced Stevens Report, ¶ 73; BOC Petition Order 13770-774, App. A 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 Code Conversion Basic
CII NOI ¶ 18; 47 C.F.R. § 64.702(a); Sec. 255 Order, ¶ 16 Companding techniques Basic CII Final ¶ 95 Congestion Control Basic Frame Relay Order, ¶ 7 Processing: word processing, Arithmetic, Computer, Data
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 Dialing: Repeat, Speed Basic Stevens Report, ¶ 73
Directory Assistance; Publishing Directories; Addressing information
DNS; Reverse Directory Assistance
Internet over Cable, DR ¶ 37 (The DNS is an online data retrieval and directory service)
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 Format Processing Enhanced 47 C.F.R. § 64.702(a) Gateway Enhanced BOC Petition 13770-774, App. A; Stevens Report at 75 Itemized Bill Basic Computer II Final Decision, ¶ 98 Internet Access over Telecom Service Basic*
Stevens Report at 101, ¶ 73.*BASIC Comsat Order (suggesting pure Internet access as a basic service when not bundled with any enhanced services)
ISDN Basic Stevens Report, ¶ 73 Message or Packet Switching Basic CII Final ¶ 95; CII NOI ¶ 18; Frame Relay Order, at 11; Telenet Order (under Computer I) Newsgroups Enhanced Stevens Report ¶¶ 77, 76 Process Control Enhanced CII Tentative ¶ 13; CII Supp ¶ 9; CII NOI ¶ 17-18 Protocol Processing Basic
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 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 store and forward
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
Sonet Basic Stevens Report, ¶ 73 Telephony (VoIP) Basic
Computer II Final Decision ¶ 93; FWD MO&O Text Messaging: telegraph; e-mail; paging
Telegraph; *But see ECOM MO&O (Pre CII Decision holding that USPS email service would be telecom service).
Stevens Report ¶¶ 78, 98; FWD MO&O; BOC Petition Order 13770-774, App. A. Access Charge Report, R&O n 498
Traffic Management Study Basic Computer II Final Decision, ¶ 98. Voice Mail; Voice Storage Enhanced CPE Order 2001 ¶ 2; FWD MO&O; Stevens Report, ¶ 73; BOC Petition Order 13770-774, App. A; Stevens Report, ¶ 73; Computer II Final Decision, ¶ 98
Stevens Report ¶¶ 77, 76
* 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
11.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).
12. 47 C.F.R. § 64.702(a).
13. See, e.g., In re Bell Atlantic Telephone Companies Offer of Comparably Efficient Interconnection to Providers of Internet Access Services, CCBPol 96-09, Order (June 6, 1996).
14. 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).
15. See, e.g., 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).
16. See, e.g., In re Ameritech's Comparably Efficient Interconnection Plan for Electronic Vaulting Service, CCBPol 97-03, Order (December 31, 1997) (hereinafter Ameritech's CEI Plan).
17. See 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).
18. 47 C.F.R. § 64.702(a).
19. 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 .....").
20. 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).