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Telecommunications

"Telecommunications - the term 'telecommunications' means the transmission, between and 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." 47 U.S.C. § 153(43) (1999).


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.")

Internet = Telecommunications?

    "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)

  1. 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
  1. 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 Service

"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." 47 USC § 153(46) (1999).

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))
 

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).

ISP =/= Telecom service

78. We decline to expand the meaning of "telecommunications services" to include information services for purposes of section 255, as urged by some commenters. In the NPRM, we recognized that under our interpretation of these terms, some important and widely used services, such as voicemail and electronic mail, would fall outside the scope of section 255 because they are considered information services. We conclude, however, that we may not reinterpret the definition of telecommunications services, either for purposes of section 255 only or for all Title II regulation. First, we emphasize that the term "information services" is defined separately in the Act. As we noted in the NPRM, there was no indication in the legislative history of the 1996 Act that Congress intended these terms to have any different, specialized meaning for purposes of accessibility.

79. Furthermore, in a Report to Congress that was released subsequent to the NPRM, we reiterated the distinction between information services and telecommunications services. Specifically, we found that "Congress intended [that] the categories of `telecommunications service' and `information service' to be mutually exclusive, like the definitions of 'basic service' and 'enhanced service' developed in our Computer II proceeding, and the definitions of 'telecommunications' and 'information service' developed in the Modification of Final Judgment that divested the Bell Operating Companies from AT&T." While we decline here to redefine the meaning of telecommunications services, either for purposes of section 255 or more broadly, we do think it is appropriate, as we discuss below, to use ofur ancillary jurisdiction to extend to certain non-telecommunications services accessibility obligations that mirror those under section 255 in order to effectuate Congress' intent that we make telecommunications services accessible.

-- In the matter of 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 (September 29, 1999) (footnote numbering off).
 
 

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,[45] it has never found that "telecommunications" end where "enhanced" service begins.

[fn45] Id. at 9180. We confirmed this view in the Universal Service Report to Congress. Universal Service Report to Congress at 13 FCC Rcd 11522-23.

--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).



13. We conclude, as the Commission did in the Universal Service Order, that the categories of "telecommunications service" and "information service" in the 1996 Act are mutually exclusive. Reading the statute closely, with attention to the legislative history, we conclude that Congress intended these new terms to build upon frameworks established prior to the passage of the 1996 Act. Specifically, we find that Congress intended the categories of "telecommunications service" and "information service" to be mutally exclusive, like the definitions of "basic service" and "enhanced service" developed in our Computer II proceeding, and the definitions of "telecommunications" and "information service" developed in the Modification of Final Judgment that divested the Bell Operating Companies from AT&T. We recognize that the 1996 Act's explicit endorsement of the goals of competition and deregulation represents a significant break from the prior statutory framework. We find generally, however, that Congress intended to maintain a regime in which information service providers are not subject to regulation as common carriers merely because they provide their services "via telecommunications."
. . . . .
43. The language and legislative history of both the House and Senate bills indicate that the drafters of each bill regarded telecommunications services and information services as mutually exclusive categories. The House bill explicitly stated in the statutory text: "The term 'telecommunications service' . . . does not include an information service." The Senate Report stated in unambiguous terms that its definition of telecommunications "excludes those services . . . that are defined as information services." Information service providers, the Report explained, "do not 'provide' telecommunications services; they are users of telecommunications services." Accordingly, the Senate Report stated, the legislation "does not require providers of information services to contribute to universal service." We believe that these statements make explicit the intention of the drafters of both the House and Senate bills that the two categories be separate and distinct, and that information service providers not be subject to telecommunications regulation.
-- In re Federal-State Joint Board on Universal Service, Report to Congress, FCC 98-67 ¶¶ 13 & 43 (April 10, 1998).

CALEA

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