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Telecommunications Dont be a FOOL; The Law is Not DIY

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Telecommunications

47 U.S.C. § 153(50) Telecommunications :: The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.

19. The Act defines "telecommunications" as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received."   Under this definition, an entity provides telecommunications only when it both provides a transparent transmission path and it does not change the form or content of the information.   ...
-- 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



"Telecommunications" is defined in the Act as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received."21

21 47 U.S.C. § 153(43).

--In Re Implementation f the Local Competition Provisions in the Telecommunications Act of 1996, Inter-Carrier Compensation for ISP-Bound Traffic, CC Docket No. 96-98, CC Docket No. 99-68, Declaratory Ruling ¶ 8 (February 26, 1999)


In Re Federal-State Joint Board on Universal Service, Report to Congress ¶ 101 (April 10, 1998) ("With respect to the provision of pure transmission capacity to Internet service providers or Internet backbone providers, we have concluded that such provision is telecommunications.")

Interstate

Traffic is deemed interstate "when the communication or transmission originates in any state, territory, possession of the United States, or the District of Columbia and terminates in another state, territory, possession, or the District of Columbia." In a conventional circuit-switched network, a call that originates and terminates in a single state is jurisdictionally intrastate, and a call that originates in one state and terminates in a different state (or country) is jurisdictionally interstate. --In Re Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, Inter-Carrier Compensation for ISP-Bound Traffic, CC Docket No. 96-98, CC Docket No. 99-68, Declaratory Ruling ¶ 18 (February 26, 1999)

Telecommunications Provider

USF Obligations

116. Permissive Contribution Authority. The Commission observed that section 254(d) also confers "permissive authority" to require "other providers of interstate telecommunications" to contribute if the public interest so requires. The Commission, citing the statutory definition, concluded that providers of interstate telecommunications, unlike providers of interstate telecommunications services, do not offer telecommunications on a common carrier basis. In support of this conclusion, the Commission referred to the legislative history in which Congress noted the distinction between providers of interstate telecommunications and providers of interstate telecommunications services when it stated that an entity can offer telecommunications on a private-service basis without incurring obligations as a common carrier.

117. The Commission found that private network operators that lease excess capacity on a non-common carrier basis for interstate transmissions should contribute to universal service support mechanisms because they are "other providers of interstate telecommunications." Similarly, the Commission concluded that payphone aggregators fall within the Commission's permissive authority and that the public interest requires that they contribute. The Commission sought to adopt an approach under which contribution obligations neither affect business decisions nor discourage carriers from offering services on a common carrier basis. Accordingly, the Commission found that the public interest requires both private service providers that offer interstate telecommunications to others for a fee and payphone aggregators to contribute to the preservation and advancement of universal service in the same manner as carriers that provide "interstate telecommunications services."

-- In re Federal-State Joint Board on Universal Service, Report to Congress (April 10, 1998) (footnotes omitted).

Telecommunications Carrier

47 U.S.C. § 153(51)Telecommunications carrier :: The term “telecommunications carrier” means any provider of telecommunications services, except that such term does not include aggregators of telecommunications services (as defined in section 226 of this title). A telecommunications carrier shall be treated as a common carrier under this chapter only to the extent that it is engaged in providing telecommunications services, except that the Commission shall determine whether the provision of fixed and mobile satellite service shall be treated as common carriage.

Telecommunications Equipment

47 U.S.C. § 153(52)Telecommunications equipment :: The term “telecommunications equipment” means equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades).

Basic Service / Telecommunications Service

Basic Service

In particular, the Commission defined “basic service” as “a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.” Id., at 420, ¶96. By “pure” or “transparent” transmission, the Commission meant a communications path that enabled the consumer to transmit an ordinary-language message to another point, with no computer processing or storage of the information, other than the processing or storage needed to convert the message into electronic form and then back into ordinary language for purposes of transmitting itover the network—such as via a telephone or a facsimile. Id., at 419–420, ¶¶94–95. Basic service was subject to common-carrier regulation. Id., at 428, ¶114." - NCTA v. BrandX, No. 04-277, 545 U.S. __, Slip at 4 (S.Ct. June 27, 2005)

 

Computer II Inquiry, 77 FCC 2d 384 (1980), recon. 84 FCC 2d 50 (1980), further recon. 88 FCC 2d 512 (1981), aff'd sub nom. Computer and Communications Industry Association v. FCC, 693 F.2d 198 (D.C. Cir. 1982), cert. denied, 461 U.S. 938 (1983). In Computer II the Commission defined "basic" services as those that provide a "pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer-supplied information." Basic services are subject to regulation



"Basic service is the offering of a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.= Id. at 419-20." 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)


39. In Computer II, the Commission created the regulatory categories of "basic" services and "enhanced" services in order to more clearly distinguish regulated common carrier services from unregulated computer-data services.   It defined basic transmission service as limited to the Title II common carrier offering of transmission capacity for the movement of information.7676 Id. at 419-20, paras. 93-96.

--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 (February 15, 2002) http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-42A1.doc



The regulatory treatment of data communications services is governed by the basic-enhanced service dichotomy created in the Computer II proceeding. 4 In that proceeding, the Commission described "basic" services as those that provide a "pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer-supplied information."5

4. Amendment of Section 64.702 of the Commission's Rules and Regulations (Computer II), Final Decision, 77 FCC 2d 384 (1980) (Computer II Final Decision), recon., 84 FCC 2d 50 (1980) (Reconsideration Order), further recon., 88 FCC 2d 512 (1981) (Further Reconsideration Order), aff'd sub nom., Computer and Communications Indus. Ass'n v. FCC, 693 F.2d 198 (D.C. Cir. 1982), cert. denied, 461 U.S. 938 (1983).

5. Computer II Final Decision, 77 FCC 2d at 420.  "Basic services," such as "plain old telephone service" (POTS), are regulated transmission services that are offered under tariff pursuant to Title II of the Communications Act of 1934, as amended (the Act).  In the NATA Centrex Order the Commission discussed characteristics of "adjunct to basic services" that facilitate the use of traditional telephone service but do not alter the fundamental character of telephone service.  See North American Telecommunications Association, Petition for Declaratory Ruling Under Section 64.702 of the Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment, 101 FCC 2d 349, 359-361, paras. 23-28 (1985) (NATA Centrex Order)).

-- In re US West Communications, Inc., Petition for Computer III Waiver, Order, 11 FCC Rcd. 1195, para 2 (Nov 6, 1995)


      92.  We conclude that the record in this proceeding supports our adopting a basic/enhanced dichotomy for network services.  In going forward with a regulatory scheme that distinguishes a carrier's basic transmission services from its enhanced services, it behooves us to make clear our perception of what constitutes a basic service.  In so doing we are mindful of the arguments raised by various parties that the basic service category should be broadly construed so as to not limit the scope of regulated services.  However, based on our review of the comments and our determination, infra, that enhanced services should not be subject to regulation, we conclude that the parameters of a basic service should be dictated by the purposes of the Act and the statutory scheme set forth in Title II for the regulation of common carrier communications services.
      93.  A basic transmission service is one that is limited to the common carrier offering of transmission capacity for the movement of information.  In offering this capacity, a communications path is provided for the analog or digital transmission of voice, data, video, etc. information.  Different types of basic services are offered by carriers depending on a) the bandwidth desired, b) the analog and/or digital capabilities of the transmission medium, c) the fidelity, distortion, or other conditioning parameters of the communications channel to achieve a specified transmission quality, and d) the amount of transmission delay acceptable to the user. Under these criteria a subscriber is afforded the transmission capacity to suit its particular communications needs.
       94.  Traditionally, transmission capacity has been offered for discrete services, such as telephone service.  With the incorporation of digital technology into the telephone network and the inclusion of computer processing capabilities into both terminal equipment located in the customer's premises and the equipment making up a firm's 'network,' this is no longer the case. Telecommunications service is no longer just 'plain old telephone service' to the user.  A subscriber may use telephone service to transmit voice or data. Both domestic and international networks allow for voice and data use of the same communications path. 32 Thus in providing a communications service, carriers no longer control the use to which the transmission medium is put. More and more the thrust is for carriers to provide bandwidth or data rate capacity adequate to accommodate a subscriber's communications needs, regardless of whether subscribers use it for voice, data, video, facsimile, or other forms of transmission.
      95.  Accordingly, we believe that a basic transmission service should be limited to the offering of transmission capacity between two or more points suitable for a user's transmission needs and subject only to the technical parameters of fidelity or distortion criteria, or other conditioning.  Use internal to the carrier's facility of companding techniques, bandwidth compression techniques, circuit switching, message or packet switching, error control techniques, etc. that facilitate economical, reliable movement of information does not alter the nature of the basic service.  In the provision of a basic transmission service, memory or storage within the network is used only to facilitate the transmission of the information from the origination to its destination, and the carrier's basic transmission network is not used as an information storage system.  Thus, in a basic service, once information is given to the communication facility, its progress towards the destination is subject to only those delays caused by congestion within the network or transmission priorities given by the originator.
      96.  In offering a basic transmission service, therefore, a carrier essentially offers a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.  It is clear that in defining a basic service in this manner, we are in no way restricting a carrier's ability to take advantage of advancements in technology in designing its telecommunication network. Consistent with our Tentative Decision, a carrier maintains its flexibility to structure its communications network such that the network efficiently functions as the basic building block upon which it (in the form of a separate subsidiary in some cases) as well as other service vendors can add computer facilities to perform myriad combinations and permutations of information processing, data processing, process control, and other enhanced services.
--In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Final Decision, 77 FCC2d 384 (May 2, 1980) (Computer II Final Decision)


Of the three categories of services that we have established--'voice', 'basic non-voice', and 'enhanced non-voice'--'voice and 'basic non-voice' services may employ any computer processing applications as long as they do not change the nature of the service.
-- In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Tentative Decision And Further Notice Of Inquiry And Rulemaking, 72 FCC2d 358 para 77 (July 2, 1979)


Moreover, because the provider of an 'enhanced non-voice' service is dependent upon the 'basic non-voice' services of an underlying carrier, the transmission component is isolated such that the additional processing applications inherent in the provision of 'enhanced non-voice' services will not impair the quality or efficiency of voice service, or adversely affect the 'basic' transmission service of the underlying carrier.
-- In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Tentative Decision And Further Notice Of Inquiry And Rulemaking, 72 FCC2d 358 para 77 Para 126 (July 2, 1979)


     81.  Rather than adopting the definition of data processing proposed in the Notices, we are revising Section 64.702(a) taking into consideration the comments and suggestions filed in this proceeding.  Appendix B contains the revised Section 64.702.  This definitional structure generically describes 'computer processing'. Moreover, a distinction is made between the use of 'data processing' and the provision of a 'data processing service', making it clear that data processing may be performed as part of a regulated communications service without necessarily resulting in the offering of a data processing service.  The concept of 'mutually exclusive' categories as proposed in the Notice is not retained.  Instead, a primary purpose standard is incorporated which allows for ad hoc determinations in considering the regulated or non- regulated nature of a carriers offering.  The 'hybrid data processing' classification is retained, which continues to recognize the legitimate use of communication facilities by unregulated entities in the provision of data processing services.  The foregoing is a more flexible approach which does not result in a rigid definitional structure and, we believe, provides the needed basis for determining those computer processing applications which may be offered as part of a common carrier service.
     82.  The standard for determining permissible carrier activity in the present computer rules is contained in the definition of message switching, i.e., '. . . the transmission of messages between two or more points, via communication facilities, wherein the content of the information remains unaltered.'  This fundamental characteristic of a common carrier communications service is retained as the basis of the definitional structure we are proposing.  In essence, basic concepts established in the First Computer Inquiry are being applied to computer processing applications which have developed since that time to define what market applications may be incorporated as part of a common carrier communications service.  The function or role of communications common carriage is to provide the means for transmitting subscriber initiated messages or information between two or more points and having that information arrive at the destination intended by the subscriber without the content of the message or information being altered by the carrier in the course of transmission.
-- In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Tentative Decision And Further Notice Of Inquiry And Rulemaking, 72 FCC2d 358 para 81 (July 2, 1979)


 87.  Under this section a carrier may perform data processing as part of a communications offering as long as the data processing directly relates to and is for the purpose of providing a communications service or meeting its own in- house needs.  This recognizes that there are legitimate uses of data processing in the provision of a communications service.  Under this structure the need for a 'hybrid communications' category is eliminated.  By stating that carriers may engage in data processing and communications processing in the provision of a communications service, explicit recognition is given to the previous classification of a 'hybrid communications service.'  However, where the data processing performed does not result in the offering of a 'data processing service' (as defined) and, at the same time, is not directly related to or for the purpose of providing a communications service, then a carrier may not engage in such data processing as part of a regulated communications offering.
--In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Tentative Decision And Further Notice Of Inquiry And Rulemaking, 72 FCC2d 358 (July 2, 1979)

Telecommunications Service

47 U.S.C. § 153(53) Telecommunications service :: The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

Virgin Islands Telephone Corp. v. FCC, 198 F.3d 921 (D.C. Cir. 1999) (definitions of "telecommunications carrier" and "telecommunications service" under 47 U.S.C. §§ 153(44), (46))

Virgin Islands Telephone Corp. v. FCC, 198 F.3d 921 (D.C. Cir. 1999) (definitions of "telecommunications carrier" and "telecommunications service" under 47 U.S.C. §§ 153(44), (46))
 

Functionality Test :: Service Provided to the End User

"In Brand X, the Supreme Court held that it was “consistent with the statute’s terms” for the Commission to take into account “the end user’s perspective” in classifying a service as “information” or “telecommunications.” 545 U.S. at 993. Specifically, the Court held that the Commission had reasonably concluded that a provider supplies a telecommunications service when it makes a “‘stand-alone’ offering of telecommunications, i.e., an offered service that, from the user’s perspective, transmits messages unadulterated by computer processing.” Id. at 989. In the Order, the Commission concluded that consumers perceive broadband service both as a standalone offering and as providing telecommunications. See 2015 Open Internet Order, 30 FCC Rcd. at 5765 ¶ 365."  [USTA v. FCC Slip 24 DC Cir. 2015]

We are mindful that, in order to promote equity and efficiency, we should avoid creating regulatory distinctions based purely on technology.  Congress did not limit "telecommunications" to circuit-switched wireline transmission, but instead defined that term on the basis of the essential functionality provided to users.   Thus, for example, we have previously required paging providers to contribute to universal service funding, because they are providers of "telecommunications service."   We have also required private carriers to contribute to federal universal service funding, even though they are not common carriers.
- In re Federal-State Joint Board on Universal Service, Report to Congress, FCC 98-67  98 (April 10, 1998).


This functional approach is consistent with Congress's direction that the classification of a provider should not depend on the type of facilities used.   A telecommunications service is a telecommunications service regardless of whether it is provided using wireline, wireless, cable, satellite, or some other infrastructure.  Its classification depends rather on the nature of the service being offered to customers.  Stated another way, if the user can receive nothing more than pure transmission, the service is a telecommunications service.  If the user can receive enhanced functionality, such as manipulation of information and interaction with stored data, the service is an information service.  A functional analysis would be required even were we to adopt an overlapping definition of "telecommunications service" and "information service."
-- In re Federal-State Joint Board on Universal Service, Report to Congress, FCC 98-67  59 (April 10, 1998).

 Test:  Convenience of network vs. convenience of end user

      95.  Accordingly, we believe that a basic transmission service should be limited to the offering of transmission capacity between two or more points suitable for a user's transmission needs and subject only to the technical parameters of fidelity or distortion criteria, or other conditioning.  Use internal to the carrier's facility of companding techniques, bandwidth compression techniques, circuit switching, message or packet switching, error control techniques, etc. that facilitate economical, reliable movement of information does not alter the nature of the basic service.  In the provision of a basic transmission service, memory or storage within the network is used only to facilitate the transmission of the information from the origination to its destination, and the carrier's basic transmission network is not used as an information storage system.  Thus, in a basic service, once information is given to the communication facility, its progress towards the destination is subject to only those delays caused by congestion within the network or transmission priorities given by the originator.
--In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Final Decision, 77 FCC2d 384 (May 2, 1980) (Computer II Final Decision)

Facility Indifferent

     59.    This functional approach is consistent with Congress's direction that the classification of a provider should not depend on the type of facilities used.  A telecommunications service is a telecommunications service regardless of whether it is provided using wireline, wireless, cable, satellite, or some other infrastructure.  Its classification depends rather on the nature of the service being offered to customers.  Stated another way, if the user can receive nothing more than pure transmission, the service is a telecommunications service.  If the user can receive enhanced functionality, such as manipulation of information and interaction with stored data, the service is an information service.  A functional analysis would be required even were we to adopt an overlapping
definition of "telecommunications service" and "information service."  If we decided that any offering that "included telecommunications" was a telecommunications service, we would need some test to determine whether the transmission component was "included" as part of the service.  Based on our analysis of the statutory definitions, we conclude that an
approach in which "telecommunications" and "information service" are mutually exclusive categories is most faithful to both the 1996 Act and the policy goals of competition, deregulation, and universal service.
-- In Re Federal-State Joint Board on Universal Service, Report to Congress ¶ 59 (April 10, 1998)
 

Not Limited to Voice

In re Deployment of Wireline Services Offering Advanced Telecommunications Capacity, Order on Remand, CC Docket No. 98-147, 15 FCC Rcd 385, at ¶ 41 (Dec. 23, 1999).

Adjunct Service / Telecommunications Management Exception

Adjunct Services

NATA/Centrex Order, 101 FCC 2d at 360, para. 26 (“In the case of speed dialing and call forwarding, the stored telephone numbers specified by the customer and the customer’s interaction with that stored information serve but one purpose: facilitating establishment of a transmission path over which a telephone call may be completed. . . .  When a customer uses directory assistance, that customer accesses information stored in a telephone company data base. . . .  An offering of access to a data base for the purpose of obtaining telephone numbers may be offered as an adjunct to basic telephone service.”).



  73.  Contrary to NYNEX's argument, we conclude that Congress' designation of the publishing of directories as "necessary to, or used in" the provision of a telecommunications service does not require a broad reading of section 222(c)(1)(B) that encompasses all information services. 270  We are persuaded that section 222(c)(1)(B) covers services like those formerly characterized as "adjunct-to-basic," in contrast to the information services such as call answering, voice mail or messaging, voice storage and retrieval services, fax store and forward, and Internet access services, that the parties identified in the record. 271  As noted supra, before the 1996 Act, the Commission recognized that certain computer processing services, although included within the literal definition of enhanced services, were nevertheless "clearly 'basic' in purpose and use" because they "facilitate use of traditional telephone service." 272  Examples of adjunct-to-basic services include speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller ID, call tracing, call blocking, call return, repeat dialing, call tracking, and certain centrex features. 273  With respect to these services, the Commission stated that such computer processing applications were "used in conjunction with 'voice' service" 274 and "help telephone companies provide or manage basic telephone services," as opposed to the information conveyed through enhanced services. 275  Although the Commission subsequently recognized these adjunct-to-basic services as being telecommunications services in the Non-Accounting Safeguards Order, their appropriate service classification remained unclear at the time that Congress passed the 1996 Act.  Accordingly, we believe the language in section 222(c)(1)(B), "services necessary to, or used in, the provision of such telecommunications service," reaches these adjunct-to-basic services, which are "used in" the carrier's provision of its telecommunications service.  On this basis, we agree with those parties arguing that services such as call waiting, 276 caller I.D., 277 call forwarding, 278 SONET, 279 and ISDN 280 would fall within the language of section 222(c)(1)(B); therefore, carriers need not obtain express approval from the customer to use CPNI to market those services.  We disagree, however, that other services, now classified as information services, such as call answering, voice mail or messaging, voice storage and retrieval services, fax store and forward, and Internet access services, 281 would come within its meaning.
  74.  Our interpretation is supported by Congress' example of the publishing of directories.  The publishing of directories, like those services formerly described as adjunct-to-basic, can appropriately be viewed as necessary to and used in the provision of complete and adequate telecommunication service.  As the Commission reasoned, in connection with finding directory assistance to be an adjunct-to-basic service:  "[when a customer uses directory assistance, that customer accesses information stored in a telephone company data base....  [Such service provides only that information about another subscriber's telephone number which is necessary to allow use of the network to place a call to that other subscriber." 282  As with directory assistance services, if listings are not published, many calls cannot, and will not, be made.  In this way, the publishing of directories is likewise necessary to facilitate call completion.  This is the view taken by numerous state courts that have explicitly found that the publishing of telephone listings is a necessary component of the provision of basic telephone service. 283  In contrast, most information services are not "used in, or necessary to" the provision of the carrier's telecommunications service. 284
-- In Re In The Matter Of Implementation Of The Telecommunications Act Of 1996, CC Docket No. 96-115, Second Report and Order and Further Notice of Proposed Rulemaking (February 26, 1998)


  17.  The Commission has consistently categorized a service option or feature as adjunct to basic, and thus subject to Title II regulation, if that option or feature is clearly basic in purpose and use and brings maximum benefit to the public through its incorporation in the network. 61  For example, the Commission has addressed whether access to a database through directory assistance that searches for a listing by name may be offered as an adjunct to basic telephone service.  Because a subscriber using directory assistance retrieves information stored in a telephone company's computer data base, directory assistance appears to fit within the definition of an enhanced service.  The Commission, however, found such access to be adjunct to basic, rather than enhanced service, because directory assistance provides only that
information necessary for a subscriber to place a call. 62
  18.  OSD appear to be within the definition of adjunct to basic services, because they are intended to facilitate the use of traditional telephone services for TTY-TTY calls, and do not alter the fundamental character of TTY- TTY telephone service.  The services provided by OSD, including operator assistance with collect and third-party billing, emergency interrupt and busy- line verification, are intended to facilitate the completion of TTY-TTY calls. As discussed above, directory assistance is already classified an adjunct to basic service.  The fact that directory assistance is provided through OSD does not alter the nature of the service, or, consequently, its classification as adjunct to basic service.  We therefore conclude that the services provided through OSD are subject to Title II regulation as adjunct to basic services. 63

61. Id. at 359.
62. Id. at 360.  The Commission has also held that electronic directory assistance is an adjunct to basic service because, as with operator-assisted directory assistance, the purpose of the service is to facilitate the placement of telephone calls.  Southwestern Bell Telephone Co., Petition for Waiver of Section 69.4(b) of the Commission's Rules, 5 FCC Rcd 3792, 3793 (Com. Car. Bur. 1990).
63. According to AT&T and MCI, tariffs have been filed with the Commission for all the underlying services that are provided through OSD as required by Section 203(a) of the Communications Act.

--In The Matter Of Establishment Of A Funding Mechanism For Interstate Operator Services For The Deaf, RM 8585, Memorandum Opinion and Order, 11 FCC Rcd. 6808,  (February 21, 1996)


Para 2, note 5. Computer II Final Decision, 77 FCC 2d at 420.  "Basic services," such as "plain old telephone service" (POTS), are regulated transmission services that are offered under tariff pursuant to Title II of the Communications Act of 1934, as amended (the Act).  In the NATA Centrex Order the Commission discussed characteristics of "adjunct to basic services" that facilitate the use of traditional telephone service but do not alter the fundamental character of telephone service.  See North American Telecommunications Association, Petition for Declaratory Ruling Under Section 64.702 of the Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment, 101 FCC 2d 349, 359-361, paras. 23-28 (1985) (NATA Centrex Order)).

-- In re US West Communications, Inc., Petition for Computer III Waiver, Order, 11 FCC Rcd. 1195, para 2 (Nov 6, 1995)



   26. "We conclude that the reverse-search capability offered in conjunction with US West's EWP offering constitutes an enhanced service. ..."
. . . .
  29.  In the instant case, US West has not made such a showing, nor does it seek to argue that its reverse-search capability constitutes a basic service. US West's EWP reverse-search capability on its face meets two of the three characteristics that define an enhanced service because it provides additional information (name and address associated with a telephone number) and involves subscriber interaction with stored information. Satisfying any one of the characteristics would suffice to classify the service as enhanced.
  30.  We are not persuaded by the arguments of Bell Atlantic and SWBT that the primary purpose of the reverse-search capability is to facilitate the placement of a telephone call, making the service adjunct to basic pursuant to the NATA Centrex Order.  While this service enables customers to avoid calling a number without knowledge of the name and address of the called party, the additional information gained through the service -- name and address -- is not actually necessary to make the call.58 Although customers may place a call to a telephone number after obtaining the associated name and address through a reverse-search, commenters have not demonstrated that placement of a telephone call would typically be the immediate next step.59  Thus, we find that the primary purpose for this service is not to facilitate call completion.  We conclude that unlike directory assistance, which the Commission has found adjunct to basic because it provides information necessary to make a call, the reverse-search capability provides additional information that is not necessary to make a call (because the subscriber already has the telephone number) and which could be used for a number of other purposes.
  31.  Because US West's reverse-search capability meets two of the Computer III tests for an enhanced service and does not meet the NATA Centrex Order test for an adjunct to basic service, we therefore conclude that the reverse-search capability offered in conjunction with US West's EWP offering constitutes an enhanced service pursuant to Section 64.702 of our rules.
--In re US West Communications, Inc., Petition for Computer III Waiver, Order, 11 FCC Rcd. 1195  (Nov 6, 1995)


      27.  The Commission defines an enhanced service as an unregulated service that employs computer processing applications that:  (1) act on the format, content, code, protocol or similar aspects of a subscriber's transmitted information; or (2) provide the subscriber additional, different, or restructured information; or (3) involve subscriber interaction with stored information.54  Notwithstanding this three-pronged test, the Commission held in the NATA Centrex Order that carriers may use some of the processing and storage capabilities within their networks to offer optional tariffed features as "adjunct to basic" services, if the services:  (1) are intended to facilitate the use of traditional telephone service; and (2) do not alter the fundamental character of telephone service. 55
      28.  Access to a data base through directory assistance that searches for a listing by name may be offered as an adjunct to basic telephone service, even though a subscriber can access additional, different, or restructured information.  The Commission found such access to be adjunct to basic, rather than enhanced, because directory assistance provides only that information necessary for a subscriber to place a call. 56  The NATA Centrex Order concluded that the provision of access to a data base for purposes other than to obtain the information necessary to place a call will generally be found to be an enhanced service.  The presumption regarding such services, therefore, is that they are enhanced unless they are shown to be otherwise.57

55. NATA Centrex Order, 101 FCC 2d 359-361, paras. 23-28.
56. Id. at para. 25.  The Commission also concluded in the SWBT Waiver Order that electronic directory assistance is an adjunct to basic service because the purpose of the service is an electronic form of directory assistance that does not change the nature of the basic telephone service. Id. 5 FCC Rcd 3792.
57. NATA Centrex Order, 101 FCC 2d at 360-361, paras. 26, 28.

-- In re US West Communications, Inc., Petition for Computer III Waiver, Order, 11 FCC Rcd. 1195, para 2 (Nov 6, 1995)

Telecom Management Exception

“[The] exception, would seem to apply to [DNS and caching]. DNS, in particular, is scarcely more than routing information . . . .” BrandX. at 1012–13 (Scalia, J., dissenting) 

"In concluding that broadband qualifies as a telecommunications service, the Commission explained that although broadband often relies on certain information services to transmit content to end users, these services “do not turn broadband Internet access service into a functionally integrated information service” because “they fall within the telecommunications system management exception.” Id. at 5765 ¶ 365. The Commission focused on two such services. The first, DNS, routes end users who input the name of a website to its numerical IP address, allowing users to reach the website without having to remember its multidigit address. Id. at 5766 ¶ 366. The second, caching, refers to the process of storing copies of web content at network locations closer to users so that they can access it more quickly. Id. at 5770 ¶ 372. The Commission found that DNS and caching fit within the statute’s telecommunications management exception because both services are “simply used to facilitate the transmission of information so that users can access other services.” Id." [USTA v. FCC Slip 28 DC Cir. 2015]

"The Computer II rules also recognized a third category of services, “adjunct-to-basic” services: enhanced services, such as “speed dialing, call forwarding, [and] computer-provided directory assistance,” that facilitated use of a basic service. See In re Implementation of the Non-Accounting Safeguards (“Non-Accounting Safeguards Order”), 11 FCC Rcd. 21,905, 21,958 ¶ 107 n.245 (1996). Although adjunct-to-basic services fell within the definition of enhanced services, the Commission nonetheless treated them as basic because of their role in facilitating basic services. See Computer II, 77 F.C.C. 2d at 421 ¶ 98 (explaining that the Commission would not treat as an enhanced service those services used to “facilitate [consumers’] use of traditional telephone services”)." [USTA v. FCC Slip 11 DC Cir. 2015]

"Tracking the Commission’s approach to adjunct-to-basic services, Congress also effectively created a third category for information services that facilitate use of a telecommunications service. The “telecommunications management exception” exempts from information service treatment—and thus treats as a telecommunications service— “any use [of an information service] for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” Id." [USTA v. FCC Slip 12 DC Cir. 2015]

    13. At least one commenter has suggested that FWD is not an "information service" because it falls within the definition's exception for the "management, control or operation of a telecommunications system or the management of a telecommunications service."46 We disagree. Examining the plain language of the definition dictates a finding that the exception could not apply to Pulver because Pulver is not managing a telecommunications system or telecommunications service. Examining the history of the text and Commission precedent supports the same result. The telecommunications management exception was initially included
in the definition of "information service" contained in the Modification of Final Judgment.47 That definition explained what services the BOCs were not permitted to offer while recognizing that certain computer processing capabilities were permitted within the provision of their regulated services. Thus, the telecommunications management exception permitted the BOCs to improve their telecommunications networks without running afoul of the restriction on providing information services.48 Prior to the MFJ and divestiture, the Commission had permitted certain computing capabilities to be incorporated into AT&T's telecommunications network to facilitate and modernize the provision and use of basic telephone service.49 This does not mean that when Pulver or another information services provider offers these capabilities on a stand-alone basis that they are transformed into telecommunications services.50

46 See Letter from Kathleen M. Grillo, Verizon, to Marlene H. Dortch, Secretary, Federal Communications
Commission, WC Docket No. 03-45 & 03-211 at 5 (filed Feb. 5, 2004) (Verizon Feb. 5 Ex Parte Letter); see also supra para. 3 and n.6. In the Non-Accounting Safeguards Order, the Commission recognized that certain capabilities previously treated as basic services when provided by a carrier fell within the telecommunications management exception: adjunct-to-basic services and "no net" protocol processing. Implementation of the Non- Accounting Safeguards of Sections 27 and 272 of the Communications Act of 1934, as amended, First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21957-58, paras. 106-07 (1996) (Non- Accounting Safeguards Order), clarified in Order on Reconsideration, 12 FCC Rcd 2297, 2298-99, para. 2 (1997).
47 See United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 229 (DDC 1982) (subsequent history
omitted); Joint Managers' Statement, S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. (1996) at 114.
48 See American Tel. & Tel., 552 F. Supp. at 227, 229.
49 See Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Final Decision, 77 FCC 2d 384, 419-428 (1980) (Computer II Final Decision) (noting those computer processing capabilities directly related to the provision of the basic service that telephone companies were able to provide as part of their tariffed basic service (later termed "adjunct-to basic" services, see North American Telecommunications Association Petition For Declaratory Ruling Under Section 64.702 of the Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment, ENF 84-2, Memorandum Opinion And Order, 101 FCC 2d 349, 358-61 (1985) (NATA Centrex)); Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Memorandum Opinion And Order, 84 FCC 2d 50, 60-61 (1980) (Computer II Reconsideration Order) (recognizing certain protocol conversion capabilities may occur internal to a carrier's network); Computer II Final Decision, 77 FCC 2d at 421; Communications Protocols under Section 64.702 of the Commission's Rules and Regulations, Gen. Docket No. 80-756, 95 FCC 2d 584, para. 29 (1983) (Protocols Order).
50 Indeed, in discussing various types of signaling that occurs within a basic service, the Commission noted that certain protocol processing network functions intrinsic therein "may be properly associated with basic service without changing its nature, or with an enhanced service without changing the classification of the latter as unregulated under Title II of the Act." Protocols Order, 95 FCC 2d at para. 15. We note that FWD is different from signaling networks. While FWD does provide information that members use to initiate communications among themselves, FWD does not manage the resulting disintermediated communication. That is managed by the members themselves. In addition, FWD provides many features not offered by signaling networks (e.g., directory look-up, voice mail, emailed responses, conferencing capabilities, and address repair).

-- In re Petition for Declaratory Ruling that pulver.com's Free World Dialup is Neither Telecommunications Nor a Telecommunications Service, WC Docket No. 03-45, Memorandum Opinion And Order  (FCC February 19, 2004)

 

 
Example :: Internet
    "With respect to the provision of pure transmission capacity to Internet service providers or Internet backbone providers, we have concluded that such provision is telecommunications" In re Federal-State Joint Board on Universal Service, Report to Congress, FCC 98-67 ¶ 101 (April 10, 1998)

    'Internet access, like all information services, is provided "via telecommunications."' -- In re Federal-State Joint Board on Universal Service, Report to Congress, FCC 98-67 ¶ 68 (April 10, 1998).

    "With respect to the provision of pure transmission capacity to Internet service providers or Internet backbone providers, we have concluded that such provision is telecommunications" In re Federal-State Joint Board on Universal Service, Report to Congress, FCC 98-67 ¶ 101 (April 10, 1998)

    To the contrary, in the context of open network architecture (ONA) elements, for example, the Commission stated that "an otherwise interstate basic service . . . does not lose its character as such simply because it is being used as a component in the provision of a[n enhanced] service that is not subject to Title II."[46] The 1996 Act is consistent with this approach. For example, as amended by the 1996 Act, Section 3(20) of the Communications Act defines "information services" as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications."[47] This definition recognizes the inseparability, for purposes of jurisdictional analysis, of the information service and the underlying telecommunications. Although it concluded in the Universal Service Report to Congress that ISPs do not provide "telecommunications" as defined in the 1996 Act,[48] the Commission reiterated the traditional analysis that ESPs enhance the underlying telecommunications service.[49] Thus, we analyze ISP traffic for jurisdictional purposes as a continuous transmission from the end user to a distant Internet site.

    [fn46] See Filing and Review of Open Network Architecture Plans, 4 FCC Rcd 1, 141 (1988) ("when an enhanced service is interstate (that is, when it involves communications or transmissions between points in different states on an end-to-end basis), the underlying basic services are subject to Title II regulation"), aff'd sub nom. People of State of Cal. v. FCC, 3 F.3d 1505 (9th Cir. 1993). See,e.g., Amendment of Section 64.702 of the Commission's Rules and Regulations, 2 FCC Rcd 3072, 3080 (1987) ("carriers must provide efficient nondiscriminatory access to the basic service facilities necessary to support their competitors' enhanced services"); vacated on other grounds sub nom. People of State of Cal. v. FCC, 905 F.2d 1217 (9th Cir. 1990). See alsoBellSouth MemoryCall, 7 FCC Rcd at 1621 (rejecting "two call" argument as applied to interstate call to voice mail apparatus, even though voice mail is an enhanced service).

    [fn47] 47 U.S.C. § 153(20) (emphasis added); see also 47 C.F.R. § 64.702(a) (enhanced services are provided "over common carrier transmission facilities used in interstate communications").

    [fn48] Universal Service Report to Congress, 13 FCC Rcd at 11536-40. See also Universal Service Order, 12 FCC Rcd at 9180 n.2023.

    [fn49] See Universal Service Report to Congress, 13 FCC Rcd at 11540. See also Universal Service Order 12 FCC Rcd at 9180 n.2023 (referencing Amendment of Section 64.702 of the Commission's Rules and Regulations, 2 FCC Rcd 3072, 3080 (1987)).

    --In Re Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, Inter-Carrier Compensation for ISP-Bound Traffic, CC Docket No. 96-98, CC Docket No. 99-68, Declaratory Ruling ¶ 13 (February 26, 1999)

    The Commission previously has distinguished between the "telecommunications services component" and the "information services component" of end-to-end Internet access for purposes of determining which entities are required to contribute to universal service.[72] Although the Commission concluded that ISPs do not appear to offer "telecommunications service," and thus are not "telecommunications carriers" that must contribute to the Universal Service Fund, [73] it has never found that "telecommunications" ends where "enhanced" information service begins. To the contrary, in the context of open network architecture (ONA) elements, the Commission stated that "an otherwise interstate basic service . . . does not lose its character as such simply because it is being used as a component in the provision of a[n enhanced] service that is not subject to Title II."[74] Under the definition of information service added by the 1996 Act, an information service, while not a telecommunications service itself, is provided via telecommunications.[75] As explained in the Universal Service Report to Congress, because information services are offered via telecommunications, they necessarily require a transmission component in order for users to access information.[76] We, therefore, analyze ISP traffic as a continuous transmission from the end user to a distant Internet site.

    [72] Universal Service Order, 12 FCC Rcd at 9180, 9181.

    [73] Id. at 9180. We confirmed this view in the Universal Service Report to Congress. Universal Service Report to Congress, 13 FCC Rcd at 11522.

    [74] See Filing and Review of Open Network Architecture Plans, 4 FCC Rcd 1, 141 (1988) ("when an enhanced service is interstate (that is, when it involves communications or transmissions between points in different states on an end-to-end basis), the underlying basic services are subject to Title II regulation.") See, e.g., Amendment of Section 64.702 of the Commission's Rules and Regulations, 2 FCC Rcd 3072, 3080 (1987)("carriers must provide efficient nondiscriminatory access to the basic service facilities necessary to support their competitors's enhanced services. . ." ) See also BellSouth MemoryCall, 7 FCC Rcd at 1621 (rejecting "two call" argument as applied to interstate call to voicemail apparatus, even though voicemail is an enhanced service).

    [75] See 47 U.S.C. ' 153(20) ("Information service" means "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications . . .") (emphasis added); see also 47 C.F.R. ' 64.702(a) (enhanced services are provided "over common carrier transmission facilities used in interstate communications.")

    [76] Universal Service Report to Congress, 13 FCC Rcd at 11529.

    -- In Re GTE Telephone Operators GTOC Tariff No. 1 GTE Transmittal No. 1148, Memorandum Opinion And Order, CC Docket No. 98-79 ¶ 20 (October 30, 1998), recon. denied (February 26, 1999).

    We are persuaded that the definition of "interLATA service," which is "telecommunications between a point located in a [LATA] and a point located outside such area," [FN115] does not limit the scope of the term to telecommunications services because, as MFS and BellSouth point out, information services are also provided via telecommunications. Elsewhere in this Report and Order, we conclude that "interLATA information services" must include a bundled, interLATA transmission component. [FN116] Thus, interLATA information services are provided via interLATA telecommunications transmissions and, accordingly, fall within the definition of "interLATA service." -- In the Matter of the Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as Amended, Order on Reconsideration, Docket 96-149, 1997 WL 71143 (FCC), 12 FCCR. 2297, 12 FCC Rcd. 2297, 6 Communications Reg. (P&F) 972, ¶ 56 (Feb 19, 1997)

Example :: Broadband Internet Access Service

USTA v. FCC Slip 24-28 DC Cir. 2015

"With respect to its first conclusion—that consumers perceive broadband as a standalone offering—the Commission explained that broadband providers offer two separate types of services: “a broadband Internet access service,” id. at 5750 ¶ 341, which provides “the ability to transmit data to and from Internet endpoints,” id. at 5755 ¶ 350; and “‘add-on’ applications, content, and services that are generally information services,” id. at 5750 ¶ 341, such as email and cloud-based storage programs, id. at 5773 ¶ 376. It found that from the consumer’s perspective, “broadband Internet access service is today sufficiently independent of these information services that it is a separate offering.” Id. at 5757–58 ¶ 356.

"In support of its conclusion, the Commission pointed to record evidence demonstrating that consumers use broadband principally to access third-party content, not email and other add-on applications. “As more American households have gained access to broadband Internet access service,” the Commission explained, “the market for Internet-based services provided by parties other than broadband Internet access providers has flourished.” Id. at 5753 ¶ 347. Indeed, from 2003 to 2015, the number of websites increased from “approximately 36 million” to “an estimated 900 million.” Id. By one estimate, two edge providers, Netflix and YouTube, “account for 50 percent of peak Internet download traffic in North America.” Id. at 5754 ¶ 349."

"That consumers focus on transmission to the exclusion of add-on applications is hardly controversial. Even the most limited examination of contemporary broadband usage reveals that consumers rely on the service primarily to access thirdparty content. The “typical consumer” purchases broadband to use “third-party apps such as Facebook, Netflix, YouTube, Twitter, or MLB.tv, or . . . to access any of thousands of websites.” Computer & Communications Industry Association Amicus Br. 7. As one amicus succinctly explains, consumers today “pay telecommunications providers for access to the Internet, and access is exactly what they get. For content, they turn to [the] creative efforts . . . of others.” Automattic Amicus Br. 1."

"Indeed, given the tremendous impact third-party internet content has had on our society, it would be hard to deny its dominance in the broadband experience. Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie. The same assuredly cannot be said for broadband providers’ own add-on applications.

"The Commission found, moreover, that broadband consumers not only focus on the offering of transmission but often avoid using the broadband providers’ add-on services altogether, choosing instead “to use their high-speed Internet connections to take advantage of competing services offered by third parties.” 2015 Open Internet Order, 30 FCC Rcd. at 5753 ¶ 347. For instance, two third-party email services, Gmail and Yahoo! Mail, were “among the ten Internet sites most frequently visited during the week of January 17, 2015, with approximately 400 million and 350 million visits respectively.” Id. at 5753 ¶ 348. Some “even advise consumers specifically not to use a broadband provider-based email address[] because a consumer cannot take that email address with them if he or she switches providers.” Id."

"Amici Members of Congress in Support of Respondents provide many more examples of third-party content that consumers use in lieu of broadband provider content, examples that will be abundantly familiar to most internet users. “[M]any consumers,” they note, “have spurned the applications . . . offered by their broadband Internet access service provider, in favor of services and applications offered by third parties, such as . . . news and related content on nytimes.com or washingtonpost.com or Google News; home pages on Microsoft’s MSN or Yahoo!’s ‘my.yahoo’; video content on Netflix or YouTube or Hulu; streaming music on Spotify or Pandora or Apple Music; and on-line shopping on Amazon.com or Target.com, as well as many others in each category.” Members of Congress for Resp’ts Amicus Br. 22."

"In support of its second conclusion—that from the user’s point of view, the standalone offering of broadband service provides telecommunications—the Commission explained that “[u]sers rely on broadband Internet access service to transmit ‘information of the user’s choosing,’ ‘between or among points specified by the user,’” without changing the form or content of that information. 2015 Open Internet Order, 30 FCC Rcd. at 5761 ¶ 361 (quoting 47 U.S.C. § 153(50)); see also id. at 5762–63 ¶ 362. The Commission grounded that determination in record evidence that “broadband Internet access service is marketed today primarily as a conduit for the transmission of data across the Internet.” Id. at 5757 ¶ 354. Specifically, broadband providers focus their advertising on the speed of transmission. For example, the Commission quoted a Comcast ad offering “the consistently fast speeds you need, even during peak hours”; an RCN ad promising the ability “to upload and download in a flash”; and a Verizon ad claiming that “[w]hatever your life demands, there’s a Verizon FiOS plan with the perfect upload/download speed for you.” Id. at 5755 ¶ 351 (alteration in original) (internal quotation marks omitted). The Commission further observed that “fixed broadband providers use transmission speeds to classify tiers of service offerings and to distinguish their offerings from those of competitors.” Id."

"Those advertisements, moreover, “link higher transmission speeds and service reliability with enhanced access to the Internet at large—to any ‘points’ a user may wish to reach.” Id. at 5756 ¶ 352. For example, RCN brags that its service is “ideal for watching Netflix,” and Verizon touts its service as “work[ing] well for uploading and sharing videos on YouTube.” Id. Based on the providers’ emphasis on how useful their services are for accessing third-party content, the Commission found that end users view broadband service as a mechanism to transmit data of their own choosing to their desired destination—i.e., as a telecommunications service.

"US Telecom next claims that 47 U.S.C. § 230, enacted as part of the Communications Decency Act of 1996, a portion of the Telecommunications Act, “confirms that Congress understood Internet access to be an information service.” US Telecom Pet’rs’ Br. 33. Section 230(b) states that “[i]t is the policy of the United States . . . to promote the continued development of the Internet and other interactive computer services and other interactive media.” 47 U.S.C. § 230(b)(1). In turn, section 230(f) defines an “interactive computer service” “[a]s used in this section” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.” Id. § 230(f)(2). According to US Telecom, this definition of “interactive computer service” makes clear that an information service “includes an Internet access service.” US Telecom Pet’rs’ Br. 33. As the Commission pointed out in the Order, however, it is “unlikely that Congress would attempt to settle the regulatory status of broadband Internet access services in such an oblique and indirect manner, especially given the opportunity to do so when it adopted the Telecommunications Act of 1996.” 30 FCC Rcd. at 5777 ¶ 386; see Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”)." [USTA v. FCC Slip 34-35 DC Cir. 2015]

See Classification of Internet Access as Information Service

Example :: BIAS :: Offering :: APA Ambiguous

"the Commission adopted that approach in the Order in concluding that the term was ambiguous as to the classification question presented here: whether the “offering” of broadband internet access service can be considered a telecommunications service. In doing so, the Commission acted in accordance with the Court’s instruction in Brand X that the proper classification of broadband turns “on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance.” 545 U.S. at 991... But this argument ignores that under the statute’s definition of “information service,” such services are provided “via telecommunications.” 47 U.S.C. § 153(24). This, then, brings us back to the basic question: do broadband providers make a standalone offering of telecommunications? US Telecom’s argument fails to provide an unambiguous answer to that question." [USTA v. FCC Slip 33, 34 DC Cir. 2015]

 

Example :: Packet Switching

The synchronous X.25 interface protocol has traditionally been the most widely recognized protocol used to communicate over packet-switched networks. 5 Much of the existing terminal equipment that customers use to originate and terminate data communications between their computers and other computers, however, historically has not been designed to support the X.25 protocol. This equipment often employs an asynchronous protocol, which is used to originate and terminate traffic over ordinary voice communications lines. Thus, data communicated under asynchronous protocols must be converted to data employing synchronous X.25 protocol in order to be transmitted over a packet-switched network. Moreover, as the number of networking and terminal protocols has increased over time, so has the need to provide conversion among these protocols."

SOURCE: In The Matter Of 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, MO&O, 1995 WL 613619, 10 FCCR. 13,717, 10 FCC Rcd. 13,717, 1 Communications Reg. (P&F) 409,  4 (October 18, 1995)

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The use of packet switching and error control techniques "that facilitate the economical, reliable movement of [such] information [do] not alter the nature of the basic service." 15 Thus, for example, in subsequent decisions the Commission has determined that packet-switched networks following X.25 protocols provide a basic transport service under Commission Rules. 16

SOURCE: In The Matter Of 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, MO&O, 1995 WL 613619, 10 FCCR. 13,717, 10 FCC Rcd. 13,717, 1 Communications Reg. (P&F) 409,  11 (October 18, 1995)

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    6. Frame relay is a relatively new, high-speed packet-switching technology used to communicate digital data between, among other things, geographically dispersed local area networks (LANs). In addition, frame relay technology often serves as the intermediary format for data traveling between different computer systems employing different communications protocols.
     7. As the term suggests, frame relay networks communicate "frames" containing digital data. The format of a frame-defined by a specific interface protocol-consists of a beginning "flag," a "header," a variable length data field, a "trailer," and an ending "flag." The header contains routing and congestion control information, while the trailer holds an error control sequence enabling detection of errors within frames. Unlike the slower X.25 packet switching protocol, frame relay switches do not store frames until a positive acknowledgement is received from a destination switch. When a destination switch receives a frame with errors, it simply discards the frame, relying on higher-layer protocols of intelligent customer premises equipment (CPE) to note the omission and take corrective action by rerequesting transmission of the packet. [8] This streamlined operation allows frame relay networks to operate at significantly higher speeds than X.25 networks. In a typical frame relay application, a LAN is linked to a device known as a "router" on the customer premises. [9] If the router supports frame relay protocol, it is connected to an access link which carries the frame relay traffic to a central office port. If the router does not support frame relay, a frame relay assembler/disassembler (FRAD) is located on a customer premise between the router and access link to convert the data transmitted from the router to frame relay format. [10] The central office frame relay switch establishes a permanent virtual circuit (PVC) connecting the access link to a communications line linking one switch to another. While the access link may operate at speeds from 56 to over 1,000 kilobits per second (kbs), the data relay rate across the network is limited by the transmission rate of the PVC, which varies according to customer needs and budgets. The customer contracts with the service provider for a specified information transmission rate. If the customer attempts to transmit data at speeds that exceed the agreed-upon rate, the network tries to accommodate the higher rate if capacity is available. If the network is unable either to perform the transmission or temporarily buffer the data, the network discards excess frames beyond the agreed-upon rate. As with frames containing errors, frames discarded in this fashion must be tracked by CPE.
. . . . . .
     29.  Under section 64.702(a) of the Commission's Rules, frame relay service constitutes an enhanced service if it "employ[s] computer processing applications that act on the . . . content . . . of the subscriber's transmitted information, [or] provide[s] the subscriber . . . different, or restructured information."  AT&T contends that modifications to the frame header that occur during network transmission such as changes in discard eligibility or location code render the customer data that is delivered to the terminating customer through its frame relay service "different" from the data transmitted by the originating customer.  We disagree.
      30.  Regardless of changes made to the frame header, the customer's data contained within the frame are not modified in any way as they travel through the network and arrive intact.  Moreover, changes to the header information such as the location code, are in some instances responsible for the carriage of the customer's data through the network to the proper termination point and, hence, are part of a basic transmission service.   Accordingly, we conclude that modifications to the frame header, without more, fail to alter the customer's data in a manner that results in the delivery of "different" data to the termination point.
      31.  As discussed above, however, frame relay networks may discard entire frames of customer data if errors are detected in the frame or if the customer's transmission rate exceeds the maximum rate permitted under its agreement.  In contrast to X.25 transmission networks, the customer's CPE, not the network, must detect and compensate for such discards.  Thus, AT&T and others assert that the customer receives "different" or "restructured" information within the meaning of section 64.702 if the network discards eligible frames in frame relay networks.
     32.  We conclude, however, that this is a misreading of the Rule.  The functionality that AT&T relies on to argue that the data are "different" is designed to facilitate the overall transparency and efficiency of the frame relay service.  Ultimately the data on the receiving end is the same as what is transmitted.  Thus, discarding data is not a "service" rendered to a customer within the meaning of section 64.702.
     33.  It is important to note that the only frames that are normally discard eligible (other than frames containing errors) are those transmitted in excess of the contracted-for data rate.  Thus, the network normally delivers frames at the agreed-upon data rate without omission.  It is only when the customer exceeds the agreed-upon rate that frames may be discarded, and only then if excess capacity is unavailable.  Thus, the discard feature of frame relay networks allows the network to deliver unaltered customer data at rates exceeding minimum, contracted-for transmission rates.  The use of such a feature to facilitate the economical, reliable movement of information in this manner does not alter the nature of the basic service.   Nor do we view this difference between existing basic packet-switched services (such as AT&T's ACCUNET Packet Service) and frame relay technology as sufficient to justify disparate treatment under Commission Rules.  As a result, we conclude that the discard feature does not render the frame relay service an enhanced service under the Commission's rules.
     34.  We, therefore, find that frame relay service offers a transmission capability that is virtually transparent in terms of its interaction with customer-supplied data.  The service is designed to transport customer data transparently through the network, and the service is already provided pursuant to tariff in this manner by all but one of the BOCs.   Accordingly, we decline to conclude that frame relay is an enhanced service.
     35.  The provision of frame relay as a basic service, and the availability of basic digital services in general, are consistent with policies established in Computer II and Computer III, and is in the public interest.  Treating frame relay as a basic service provides competitive access to the underlying basic service of facilities-based carriers who are often better able to implement new communications technologies.  This access allows competing enhanced service providers to more easily enter and compete in the market for such technologies.  Thus, under the Computer II and Computer III decisions, competitive access has promoted the public interest by accelerating the development of emerging technologies such as frame relay.
. . . . .
    40.  We conclude that AT&T provides a basic frame relay service (alone or bundled with enhanced protocol processing) that must be offered under tariff.  According to the InterSpan Interface Standard, AT&T provides transport of customer data "transparently" across the AT&T frame relay network.   IDCMA argues (and AT&T does not refute) that the vast majority of AT&T's frame relay customers terminate to, and receive from, the network frame relay data that do not require conversion to frame relay protocol.  Since in these cases AT&T's frame relay service "provides a pure transmission capability in a communication's path," without any protocol conversion, we find that this is a basic service.   We again note that six Bell Operating Companies (BOCs) treat frame relay as a basic transport service.
      41.  The assertion by AT&T and other commenters that the enhanced protocol conversion capabilities associated with AT&T's InterSpan service bring it within the definition of an enhanced service is beside the point.  Under the Commission's Computer II and Computer III decisions, AT&T must unbundle the basic frame relay service, regardless of whether the InterSpan offering also provides a combined, enhanced protocol conversion and transport service for those customers who require it.

SOURCE: In The Matter Of 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, MO&O, 1995 WL 613619, 10 FCCR. 13,717, 10 FCC Rcd. 13,717, 1 Communications Reg. (P&F) 409 (October 18, 1995)

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33. As a result of our decision to apply the structural separation requirements to the post-divestiture BOCs' enhanced service offerings, they could not integrate protocol conversion with their basic services unless they obtained waivers from our rules pursuant to the guidelines established in the Protocols Order.  Several BOCs filed petitions asking us for permission to provide various forms of protocol conversion within their basic networks.  In November 1984, we considered the merits of BOC requests to provide an X.25/X.75 84 internetworking protocol conversion interface without structural separation.  We granted these requests 85 and treated this interface as one that is to be offered under tariff in conjunction with the associated basic services.  We acknowledged that the interface would have been used internally in the Bell System network prior to divestiture and, accordingly, would have been an element of basic service at the time that we defined basic service in Computer II.
    34. Subsequently, in the Asynchronous/X.25 Waiver Order, 86 we permitted several BOCs to provide asynchronous/X.25 87 protocol conversion from equipment collocated with their network facilities, as a component of basic, packet-switched, data transport services.  We found that the public interest would be served both by the additional competition the BOCs would provide to existing providers of packet-switched services and by the real efficiencies that such collocation would permit in increased use of the public switched network and in elimination of duplicated facilities.  Accordingly, we granted the BOCs permission to collocate facilities, subject to three express conditions.  First, we required the BOCs to make available to competitors without discrimination the inter-office channels from which the BOCs construct their underlying packet-switched networks.  Second, we required the BOCs to include in tariffs for their underlying packet-switched services an additional network utilization rate element (NURE) to be applied to any user of asynchronous/X.25 conversion, representing the cost, in decreased efficiency, to the underlying basic packet service caused by the integrated enhanced protocol conversion operations.  Third, we required the BOCs to offer end-users access to the protocol conversion offerings of their competitors that is equal to that provided for the BOCs' own such offerings.  As a corollary to this, the BOCs' protocol operations were required to take under tariff the intra-office connections by which they connect with their subscribers. 88
    35. By fulfilling the foregoing conditions, the BOCs would be permitted to install, maintain, and operate their asynchronous/X.25 conversion facilities and their packet-switched facilities in an integrated fashion.  We also established additional conditions that the BOCs would be required to satisfy in order to market their protocol conversion services jointly with basic packet switching. 89

SOURCE: In the Matters of: Amendment of Sections 64.702 of the Commission's Rules and Regulations (Third Computer Inquiry);  and Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations Thereof Communications Protocols under Section 64.702 of the Commission's Rules and Regulations, CC Docket No. 85-229, Report and Order (June 16, 1986)

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     92.  We conclude that the record in this proceeding supports our adopting a basic/enhanced dichotomy for network services.  In going forward with a regulatory scheme that distinguishes a carrier's basic transmission services from its enhanced services, it behooves us to make clear our perception of what constitutes a basic service.  In so doing we are mindful of the arguments raised by various parties that the basic service category should be broadly construed so as to not limit the scope of regulated services.  However, based on our review of the comments and our determination, infra, that enhanced services should not be subject to regulation, we conclude that the parameters of a basic service should be dictated by the purposes of the Act and the statutory scheme set forth in Title II for the regulation of common carrier communications services.
      93.  A basic transmission service is one that is limited to the common carrier offering of transmission capacity for the movement of information.  In offering this capacity, a communications path is provided for the analog or digital transmission of voice, data, video, etc. information.  Different types of basic services are offered by carriers depending on a) the bandwidth desired, b) the analog and/or digital capabilities of the transmission medium, c) the fidelity, distortion, or other conditioning parameters of the communications channel to achieve a specified transmission quality, and d) the amount of transmission delay acceptable to the user. Under these criteria a subscriber is afforded the transmission capacity to suit its particular communications needs.
       94.  Traditionally, transmission capacity has been offered for discrete services, such as telephone service.  With the incorporation of digital technology into the telephone network and the inclusion of computer processing capabilities into both terminal equipment located in the customer's premises and the equipment making up a firm's 'network,' this is no longer the case. Telecommunications service is no longer just 'plain old telephone service' to the user.  A subscriber may use telephone service to transmit voice or data. Both domestic and international networks allow for voice and data use of the same communications path. 32 Thus in providing a communications service, carriers no longer control the use to which the transmission medium is put. More and more the thrust is for carriers to provide bandwidth or data rate capacity adequate to accommodate a subscriber's communications needs, regardless of whether subscribers use it for voice, data, video, facsimile, or other forms of transmission.
      95.  Accordingly, we believe that a basic transmission service should be limited to the offering of transmission capacity between two or more points suitable for a user's transmission needs and subject only to the technical parameters of fidelity or distortion criteria, or other conditioning.  Use internal to the carrier's facility of companding techniques, bandwidth compression techniques, circuit switching, message or packet switching, error control techniques, etc. that facilitate economical, reliable movement of information does not alter the nature of the basic service.  In the provision of a basic transmission service, memory or storage within the network is used only to facilitate the transmission of the information from the origination to its destination, and the carrier's basic transmission network is not used as an information storage system.  Thus, in a basic service, once information is given to the communication facility, its progress towards the destination is subject to only those delays caused by congestion within the network or transmission priorities given by the originator.
      96.  In offering a basic transmission service, therefore, a carrier essentially offers a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.  It is clear that in defining a basic service in this manner, we are in no way restricting a carrier's ability to take advantage of advancements in technology in designing its telecommunication network. Consistent with our Tentative Decision, a carrier maintains its flexibility to structure its communications network such that the network efficiently functions as the basic building block upon which it (in the form of a separate subsidiary in some cases) as well as other service vendors can add computer facilities to perform myriad combinations and permutations of information processing, data processing, process control, and other enhanced services.

SOURCE: In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Final Decision, 77 FCC2d 384 (May 2, 1980) (Computer II Final Decision)

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     10.  The revision of our proposed definition also necessitates a modification of the processing categories listed in paragraph 21 of our Notice.  Two categories were set forth therein as not being within the ambit of our definition of data processing--'network control and routing' and 'input/output processing.'  For purposes of clarification and in order to conform with our new proposed definition, a restatement of these categories is now called for:

  network control and routing--applications include:  message and circuit switching,[13] speed and code conversion, pulse format conversion, transmission error detection and correction, analog to digital and digital to analog conversion, signal processing,[14] and time division multiplexing.
  input/output processing--this category comprises the uses of processing capability resident in a carrier network facility for the purpose of making disparate information sources and receptors compatible with the transmission system and with each other.  Such processing activities include those necessary for formatting, editing, and buffering of information to make it compatible with the electrical characteristics of different transmission media.

Since these processing activities would not constitute data processing, they could be incorporated into a carrier's communications offering without evoking the constraints imposed by the maximum separation requirements.  Moreover, the utilization of these processing activities in the course of providing either a communications or a data processing service would not necessarily, in or of itself, change the nature of that service.

[Note 13]  The categories are meant to include packet switching (and its variations) and time-division circuit switching.  We also would consider permissible those processing activities utilized in the provision of ancillary network services such as automatic call-forwarding, abbreviated dialing, and special announcements.
[Note 14]  Signal processing comprises the use of processing operations in applications which maintain the information content of an electrical signal. These include signal detection and regeneration and the adaptive equalization of transmission channels.


SOURCE:  In re Amendment Of Section 64.702 Of The Commission's Rules And Regulations (Computer Inquiry), Docket No. 20828, Supplemental Notice Of Inquiry And Enlargement Of Proposed Rulemaking, (March 8, 1977)

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21.  We also wish to cite those examples of the use of computers by carriers which would not be within the ambit of the definition of data processing. These applications fall into two categories:

  network control and routing--applications include:  Message and circuit switching,[15] speed and code conversion, pulse format conversion, error detection and correction, analog to digital and digital to analog conversion, signal processing, [16] and time division multiplexing.
  input/output processing--this category comprises the uses of a computer capability resident in a carrier network facility for the purpose of making disparate computers and terminals compatible with each other.  Typical functions are the formatting, editing, and buffering of data to make it compatible with the electrical characteristics of different transmission media.


[Note 15]  These categories are meant to include packet switching (and its variations) and time-division circuit switching.  We also would consider permissible, the use of switching computers to provide ancillary functions such as automatic call-forwarding, abbreviated dialing, restricted dialing, and special announcements.
[Note 16]  Signal processing comprises the use of computers in applications which maintain the information content of an electrical signal.  These include signal detection and regeneration, and the adaptive equalization of transmission channels.

SOURCE:  In re Amendment Of Section 64.702 Of The Commission's Rules And Regulations, Docket No. 20828, Notice Of Inquiry And Proposed Rulemaking, 61 FCC2d 103 (August 9, 1976)