Excise Taxes; Communications Services: IRS

    Section 4251 imposes tax on amounts paid for certain communications services, including local and toll telephone service. Section 4252(a) provides that local telephone service means the access to a local telephone system, and the privilege of telephonic quality communication  with substantially all persons having telephone or radio telephone stations constituting a part of such local telephone system. Section 4252(b)(1) provides that toll telephone service includes a telephonic quality communication for which there is a toll charge that varies in amount with the distance and elapsed transmission time of each individual communication. Section 4252(b)(2) provides that toll telephone service also includes a service that entitles the subscriber, upon payment of a periodic charge (determined as a flat amount or upon the basis of total elapsed transmission time), to the privilege of an unlimited number of telephonic communications to or from all or a substantial portion of the persons having telephone or radio telephone stations in a specified area which is outside the local telephone system area in which the station provided with this service is located. 
    A tax on communications services has existed for over 100 years. The communications services that currently are subject to the tax are defined in section 4252, which was enacted in its current form in 1965. That section describes the local and long distance telephone service sold under the 1965 Federal Communications Commission rules. Existing Treasury regulations do not reflect the 1965 statutory change. 
    Sections 4252(a) and (b) define local and toll telephone service in terms of telephonic or telephonic quality communication, which means voice quality communication. Since 1965, numerous communications services have been developed and marketed, the methods of transmission have expanded, and the industry has been deregulated.
    As a result of these changes, questions have arisen concerning the application of section 4251 to certain communications services that were not available in 1965. In response to these questions, Treasury and the IRS are considering proposing regulations that would revise the 
existing regulations to reflect changes in technology. 
    The test for taxability under section 4251 is whether a service for which an amount is paid is a communications service described in section 4252. The purpose of this ANPRM is to solicit information from the public on how present technology should be treated within the description of telephonic or telephonic quality communication in the definitions of local and toll telephone service under section 4252. 
    To ensure that any new regulations accurately reflect the state of today's communications services industry, Treasury and the IRS request that communications services providers and other interested parties submit comments and suggestions describing the various technologies,  services, and methods of transmission currently available for transmitting data and voice communications and how they should be treated under section 4251

Fed Reg Notice 7/2/4

In this Order we address a petition filed by SBC Communications Inc. (SBC) requesting that the Commission forbear from the application of “Title II common carrier regulations” as contained in the Communications Act of 1934, as amended (the Act), to “IP Platform Services.” For the reasons set forth below, we deny SBC’s petition. We find that the petition is procedurally defective because it asks us to forbear from the application of statutory provisions and regulations that “may or may not” apply to the telecommunications carrier or telecommunications service at issue. In addition, the evidence and arguments set out in SBC’s petition and subsequent pleadings are insufficiently specific to permit a finding that forbearance is appropriate

Public Notice

SBC Forbearance Petition

SBC v. FCC, DC Cir (Filed 6/6/05) Oral argument has not been scheduled as of Dec. 15, 2005

"On December 23, 2003, Level 3 Communications LLC (Level 3) filed a petition for forbearance pursuant to section 10 of the Communications Act of 1934, as amended (the Act), requesting the Commission to forbear from application of section 251(g) of the Act, the exception clause of section 51.701(b)(1) of the Commission's rules, and section 69.5(b) of the Commission's rules, to the extent those provisions could be interpreted to permit local exchange carrier (LECs) to impose interstate or intrastate access charges on Internet protocol (IP) traffic that originates or terminates on the public switched telephone network (PSTN), or on PSTN-PSTN traffic that is incidental thereto. Level 3 excludes from its forbearance request geographic service areas of incumbent LECs that currently are exempt from section 251(c) pursuant to section 251(f)(1)'s rural exemption. Level 3 argues that grant of this forbearance request while the Commission completes its reform of intercarrier compensation will allow IP communications that embed voice applications (voice-embedded IP) to develop with the cleanest regulatory slate possible, and will result in needed regulatory certainty, increased investment, product and technology innovation, and increased deployment of advanced services. Upon grant of its petition, Level 3 asserts that voice-embedded IP-PSTN traffic would be exchanged between a LEC and a telecommunications carrier serving a voice-embedded IP service provider pursuant to section 251(b)(5) of the Act and Subpart H of Part 51 of the Commissions rules. "

47 USC 160 (Forbearance)

James Crowe Comments On Withdrawal Of Level 3 VoIP, Level3 3/22/2005

Provision  of  Directory  Listing  Information under  the  Telecommunications  Act  of  1934 (Sec. 222)

"In the Order, the Commission also resolved certain issues relating to telephone directory publishing, including extending rights to subscriber list information at nondiscriminatory and reasonable rates to publishers of telephone directories on the Internet.  The Commission also concluded that publishers of telephone directories on the Internet should not be restricted in the manner in which they display or allow customers to access the data." 
--Press Release Jan 24, 2001 [ Text | MS Word97 | PDF ]   47 USC § 222

See also Customer Proprietary Network Information discussion.

E Signature Letters of Authority

On July 21, 2000, the FCC implemented the new Electronic Signatures in Global and National Commerce Act by "permitting preferred carrier changes to be conducted electronically through the use of Internet Letters of Agency (LOAs). Internet LOAs must comply with all current Commission authorization and verification requirements, and consumers must have the option of using alternative authorization and verification methods, such as written LOAs or independent third party verification. " 

FCC rules require that changes of telephone services be with one of four verification methods:  written Letters of Authority, electronic (i.e., telephone) authorization, independent third party verification, or State-enacted verification procedure.  This requirement is designed to stop the fraudulent practices of "slamming" (involuntary switching of services) and "cramming" (involuntary adding of unwanted services).  The new rules permit carriers to receive authorization for changes in telephone service over the Internet.  However, carriers must continue to comply with authorization and verification requirements, and where a change of service is contested, the burden of proof is on the carrier to establish that the change was authorized by the consumer.  This means that carriers have an incentive to design their webpages in such a way that it can be confirmed that when consumers change services, they really in fact meant to change services - and that some third party is not involuntary changing services on them.

FCC Order Revising Slamming rules to permit Internet Letters of Authority, ¶¶ 6-20 (permitting consumers to acquire and change telephone services online) Word | Text

S 761 Electronic Signatures in Global and National Commerce Act

Petition of US WEST for Declaratory Ruling Affirming Carrier's Carrier Charges on IP Telephony - filed with the FCC on April 5, 1999. (US West was subsequently merged into Qwest; the Petition was not placed out on Public Notice by the FCC). | Word | Pdf |
Concurrent with this proceeding, US West initiated proceedings on the state levels to address the same issues.  These proceedings were initiated in Colorado and Nebraska.

Local Competition and Broadband Reporting, Notice of Proposed Rulemaking in CC Docket No. 99-301 (broadband data gathering - asking questions about IP Telephony).  This proceeding developed reporting requirements for telephone competition.  Discussing the reporting of local lines, the FCC states "As a result, when evaluating the development of local competition, we believe it is necessary to include the development of IP-telephony service.  However, while the proposed survey instructions direct reporting entities to report lines that may be used in connection with IP- telephony service, as discussed below, the survey questions do not identify the use of IP- telephony per se.  We seek comment whether we should undertake a more specific determination of the extent to which the  internet is being used to provide telephony services and how we should do so. "  The Report and Order that closed the proceeding does not seem to reference IP Telephony at all.

Computer Inquiries