Table of Contents
IX. DUTIES IMPOSED ON "TELECOMMUNICATIONS CARRIERS"
BY SECTION 251(a)
A. Background
985. Section 251(a) imposes two fundamental duties on all telecommunications carriers: (1) "to interconnect directly or indirectly with the facilities and equipment of other telecommunications carriers;" and (2) "not to install network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to sections 255 or 256."(1) In this proceeding we determine which carriers are "telecommunications carriers" as defined in section 3(44) of the Act.(2) In the NPRM, we tentatively concluded that, pursuant to the statute's definition of "telecommunications carrier" and "telecommunications service," to the extent a carrier is engaged in providing for a fee local, interexchange, or international services, directly to the public or to such classes of users as to be effectively available directly to the public, that carrier falls within the definition of "telecommunications carrier." We sought comment on which carriers are included under this definition, and on whether a provider may qualify as a telecommunications carrier for some purposes but not others.(3)
986. We also tentatively concluded that we should determine whether the provision of
mobile satellite services is Commercial Mobile Radio Services (CMRS) or Private Mobile
Radio Service (PMRS) based on the factors set forth in the CMRS Second Report and
Order.(4) We sought comment on the meaning of offering
service "directly or indirectly" to the public in the context of section
251(a)(1) and on whether section 251(a) allows non-incumbent LECs discretion to
interconnect directly or indirectly with a requesting carrier.(5)
We also sought comment on what other actions we should take to ensure that carriers do not
install network features, functions, or capabilities that are inconsistent with guidelines
and standards established pursuant to sections 255 and 256.
B. Comments
987. Parties generally agree with our tentative conclusion that, to the extent a
carrier is engaged in providing for a fee local, interexchange, or international services,
directly to the public or to such classes of users as to be effectively available to the
public, that carrier falls within the definition of "telecommunications
carrier."(6) BellSouth claims that the term
"telecommunications carrier" should be synonymous with "common
carrier."(7) The Texas Commission argues that the
obligations of section 251(a) should apply to all telecommunications carriers -- incumbent
LECs and non-incumbent LECs alike.(8) Metricom argues,
however, that because non-dominant carriers lack incentives to deny interconnection to
other carriers, the Commission should forbear from imposing any interconnection
requirements upon such carriers.(9) UTC argues that a party
must be offering commercial telecommunications services to be a telecommunications
carrier.(10) UTC contends that utilities and other private
system operators engage in a cost-sharing for construction and operation of private
telecommunications networks. UTC claims that this should not constitute a "fee"
in the sense of being a payment for receiving a telecommunications service. UTC further
argues that the mere provision of infrastructure, such as "dark fiber" or
wholesale capacity, to third-party carriers does not constitute a direct offering to the
public, and thus does not qualify carriers offering such infrastructure as
telecommunications carriers under the Act. Several CMRS carriers contend that CMRS
providers are telecommunications carriers within the meaning of the Act.(11)
988. The Illinois Commission argues that, if a company provides both telecommunications
and information services, it must be classified as a telecommunications carrier for
purposes of section 251.(12) BellSouth claims, however,
that a carrier may be a common carrier for some purposes, but not for others. For example,
BellSouth argues that, when a common carrier also provides an information service, it is a
common carrier for the provision of the telecommunications service, but a non-common
carrier for the provision of the information service.(13)
ATSI contends that enhanced service providers are telecommunications carriers and entitled
to the benefits of section 251.(14)
989. The Illinois Commission argues that the Commission should continue to define
mobile satellite service (MSS) as either CMRS or PMRS according to the Commission's
factors set forth in the Second CMRS Report and Order.(15)
It argues, however, that if an MSS provider offers substitute services for those of a
landline LEC, the MSS provider should also be defined as a LEC and treated accordingly
under state and federal law.
990. With regard to the phrase "directly or indirectly" in section 251(a),
Arch and Sprint argue that the goal is to ensure that all subscribers of one carrier are
able to reach all subscribers of other carriers. They claim that this is achieved when two
competitors interconnect to an incumbent LEC's network.(16)
Comcast asserts that requiring competitors to interconnect "directly or
indirectly" reflects the Act's goal of applying less stringent obligations to
carriers lacking market power by enabling competitors to interconnect with other carriers
in a cost efficient manner.(17) The Texas Commission
argues that the obligations under section 251(a) should apply to all telecommunications
carriers, incumbent and non-incumbents, alike. The Texas Commission claims that, if
"non-[incumbent] LECs are allowed the discretion to determine whether to offer direct
or indirect connection to another carrier, then the goal of encouraging the most efficient
interconnection and thereby bringing the benefits of a competitive market to all consumers
will not be realized."(18)
991. The Commission received few comments on the meaning of section 251(a)(2).
Commenters representing individuals with disabilities state that the term "network
features, functions, and capabilities" should be defined as broadly as possible to
ensure that individuals with disabilities have access to the network.(19)
The American Foundation for the Blind also suggests that any service deployed by a
telecommunications carrier, or by a provider connecting to a telecommunications network,
and intended for public use should be considered an installation of "features,
functions, or capabilities."(20) The United Cerebral
Palsy Associations state that there are currently proceedings underway by both the
Commission and by the United States Architectural & Transportation Barriers Compliance
Board (Access Board) as part of the section 255 mandate. The United Cerebral Palsy
Associations urge the Commission to state that the Commission has the power to enforce
both the standards developed in its proceedings and those of the Access Board.(21)
C. Discussion
992. A "telecommunications carrier" is defined as "any provider of
telecommunications services, except that such term does not include aggregators of
telecommunications services (as defined in section 226)."(22)
A telecommunications carrier shall be treated as a common carrier under the Act "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."(23) A
"telecommunications service" is defined as 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."(24) We conclude that to the extent a carrier is engaged in
providing for a fee domestic or international telecommunications, directly to the public
or to such classes of users as to be effectively available directly to the public, the
carrier falls within the definition of "telecommunications carrier."(25) We find that this definition is consistent with the 1996
Act,(26) and there is nothing in the record in this
proceeding that suggests that this definition should not be adopted. Also, enhanced
service providers, to the extent that they are providing telecommunications services, are
entitled to the rights under section 251(a).
993. We believe, as a general policy matter, that all telecommunications carriers that
compete with each other should be treated alike regardless of the technology used unless
there is a compelling reason to do otherwise. We agree with those parties that argue that
all CMRS providers are telecommunications carriers and are thus obligated to comply with
section 251(a).(27) These carriers meet the definition of
"telecommunications carrier" because they are providers of telecommunications
services as defined in the 1996 Act and are thus entitled to the benefits of section
251(c), which include the right to request interconnection and obtain access to unbundled
elements at any technically feasible point in an incumbent LEC's network. PMRS is defined
as any mobile service that is not a commercial service or the functional equivalent of a
commercial mobile service.(28) We conclude that to the
extent a PMRS provider uses capacity to provide domestic or international
telecommunications for a fee directly to the public, it will fall within the definition of
"telecommunications carrier" under the Act and will be subject to the duties
listed in section 251(a).(29)
994. We conclude that cost-sharing for the construction and operation of private
telecommunications networks is not within the definition of "telecommunications
services" and thus such operators of private networks are not subject to the
requirements of section 251(a). We believe that such methods of cost-sharing do not equate
to a "fee directly to the public" under the definition of
"telecommunications service."(30) Conversely, to
the extent an operator of a private telecommunications network is offering
"telecommunications"(31) for a fee directly to
the public, or to such classes of users as to be effectively available directly to the
public (i.e., providing a telecommunications service),(32)
the operator is a telecommunications carrier and is subject to the duties in section
251(a). For example, the furnishing of infrastructure to the public for the provision of
telecommunications services (e.g., selling excess capacity on private fiber or
wireless networks), constitutes a telecommunications service and thus subjects the
operator of such a network to the duties of section 251(a).
995. We conclude that, if a company provides both telecommunications and information
services, it must be classified as a telecommunications carrier for purposes of section
251, and is subject to the obligations under section 251(a), to the extent that it is
acting as a telecommunications carrier. We also conclude that telecommunications carriers
that have interconnected or gained access under sections 251(a)(1), 251(c)(2), or
251(c)(3), may offer information services through the same arrangement, so long as they
are offering telecommunications services through the same arrangement as well. Under a
contrary conclusion, a competitor would be precluded from offering information services in
competition with the incumbent LEC under the same arrangement, thus increasing the
transaction cost for the competitor. We find this to be contrary to the pro-competitive
spirit of the 1996 Act. By rejecting this outcome we provide competitors the opportunity
to compete effectively with the incumbent by offering a full range of services to end
users without having to provide some services inefficiently through distinct facilities or
agreements. In addition, we conclude that enhanced service providers that do not also
provide domestic or international telecommunications, and are thus not telecommunications
carriers within the meaning of the Act, may not interconnect under section 251.
996. Consistent with our tentative conclusion in the NPRM, we will determine whether
the provision of mobile satellite service (MSS) is CMRS (and therefore common carriage) or
PMRS based on the factors set forth in the CMRS Second Report and Order.(33) Commenters have not raised objections to the
Commission's tentative conclusion on this issue.
997. Regarding the issue of interconnecting "directly or indirectly" with the
facilities of other telecommunications carriers, we conclude that telecommunications
carriers should be permitted to provide interconnection pursuant to section 251(a) either
directly or indirectly, based upon their most efficient technical and economic choices.
The interconnection obligations under section 251(a) differ from the obligations under
section 251(c). Unlike section 251(c), which applies to incumbent LECs, section 251(a)
interconnection applies to all telecommunications carriers including those with no market
power. Given the lack of market power by telecommunication carriers required to provide
interconnection via section 251(a), and the clear language of the statute, we find that
indirect connection (e.g., two non-incumbent LECs interconnecting with an
incumbent LEC's network) satisfies a telecommunications carrier's duty to interconnect
pursuant to section 251(a). We decline to adopt, at this time, Metricom's suggestion to
forbear under section 10 of the 1996 Act(34) from imposing
any interconnection requirements upon non-dominant carriers. We believe that, even for
telecommunications carriers with no market power, the duty to interconnect directly or
indirectly is central to the 1996 Act and achieves important policy objectives. Nothing in
the record convinces us that we should forbear from imposing the provisions of section
251(a) on non-dominant carriers. In fact, section 251 distinguishes between dominant and
non-dominant carriers, and imposes a number of additional obligations exclusively on
incumbent LECs.(35) Similarly, we also do not agree with
the Texas Commission's argument that the obligations of section 251(a) should apply
equally to all telecommunications carriers. Section 251 is clear in imposing different
obligations on carriers depending upon their classification (i.e., incumbent LEC,
LEC, or telecommunications carrier).(36) For example,
section 251(c) specifically imposes obligations upon incumbent LECs to interconnect, upon
request, at all technically feasible points. This direct interconnection, however, is not
required under section 251(a) of all telecommunications carriers.
998. Section 251(a)(2) prohibits telecommunications carriers from installing network features, functions, and capabilities that do not comply with standards or guidelines established under sections 255 and 256. Because the Commission and the Architectural and Transportation Barriers Compliance Board have not developed standards or guidelines under section 255, we find that it would be premature at this point to attempt to delineate specific requirements or definitions of terms to implement Section 251(a)(2).(37) Similarly, the Commission has asked its federal advisory committee, the Network Reliability and Interoperability Council, for recommendations on how the Commission should implement Section 256. We intend to issue a further notice of proposed rulemaking seeking comment on what accessibility and compatibility requirements apply to telecommunications carriers who install network features, functions and capabilities.
1. 2315 47 U.S.C. 251(a). Section 255 addresses access by persons with disabilities and ensures that manufacturers and providers of telecommunications will design equipment and provide service that is accessible to, and usable by, individuals with disabilities. Section 256 provides for coordination for interconnectivity "to promote nondiscriminatory accessibility by the broadest number of users and vendors of communications products and services." 47 U.S.C. 255, 256.
2. 2316 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). A telecommunications carrier shall be treated as a common carrier under this Act 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." 47 U.S.C. 153(44).
3. 2317 NPRM at para. 246.
4. 2318 NPRM at para. 247. The Commission makes this determination by looking at an array of public interest considerations (e.g., the types of services being offered and the number of licensees being authorized). See, e.g., Amendment of Parts 2, 22 and 25 of the Commission's Rules to Allocate Spectrum for, and To Establish Other Rules and Policies Pertaining to the Use of Radio Frequencies in a Land Mobile Satellite Service for the Provision of Various Common Carrier Services, GN Docket No. 84-1234, Second Report and Order, 2 FCC Rcd 485, 490 (1987); Amendment to the Commission's Rules to Allocate Spectrum for, and to Establish Other Rules and Policies Pertaining to a Radiodetermination Satellite Service, GN Docket No. 84-689, Second Report and Order, 104 FCC 2d 650, 665-66 (1986).
5. 2319 NPRM at para 248.
6. 2320 See, e.g., Louisiana Commission comments at 21; Illinois Commission comments at 81-82; Pennsylvania Commission comments at 41; BellSouth comments at 75.
7. 2321 BellSouth comments at 75; COMAV comments at 60; accord United Cerebral Palsy Ass'n at 3 and American Foundation for the Blind at 3 (favoring a broad definition of telecommunications carrier that includes any provider of access to any network available to the public).
8. 2322 Texas Commission comments at 34; NWRA comments at 12-13 (arguing that both facilities based carriers and resellers meet the definition of telecommunications carriers).
9. 2323 Metricom comments at 3.
10. 2324 UTC comments at 5-7.
11. 2325 See, e.g., Nextel comments at 6-7; NWRA comments at 12-13; Metricom comments at 1-7; COMAV comments at 60.
12. 2326 Illinois Commission comments at 81.
13. 2327 BellSouth comments at 75. UTC claims that only those portions of a Utility's network that is being used in the offering of telecommunications services is subject to the Act's interconnection obligations. Portions that are used on a private basis only are not. Bundling information services with telecommunications services should only create common carrier obligations to the extent that would apply if the telecommunications services were offered by themselves. UTC comments at 9-10.
14. 2328 ATSI reply at 6 (enhanced service providers (ESPs) must have access to network elements at terms and conditions that allow ESPs to offer competitive services in the marketplace).
15. 2329 Illinois Commission comments at 81.
16. 2330 Arch comments at 18; Sprint comments at 89. The parties add that carriers should be permitted, on a voluntary basis, to establish direct interconnection. Id.
17. 2331 Comcast comments at 16-17.
18. 2332 Texas Commission comments at 34.
19. 2333 See, e.g., American Foundation for the Blind comments at 2; United Cerebral Palsy Ass'n comments at 2.
20. 2334 American Foundation for the Blind comments at 2.
21. 2335 United Cerebral Palsy Ass'n comments at 2.
22. 2336 47 U.S.C. 153(44). The term "aggregator" is defined as "any person that, in the ordinary course of its operations, makes telephones available to the public or to transient users of its premises, for interstate telephone calls using a provider of operator services." 47 U.S.C. 226(a)(2).
23. 2337 47 U.S.C. 153 (44).
24. 2338 47 U.S.C. 153(44). "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." 47 U.S.C. 153(43).
25. 2339 NPRM at para. 246.
26. 2340 47 U.S.C. 153(44), 153(46).
27. 2341 The term "CMRS" is defined as "any mobile service . . . that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public." 47 U.S.C. 332(d)(1). CMRS includes, among others, some private paging, personal communications services, business radio services, and mobile service that is the functional equivalent of a commercial mobile radio service. 47 C.F.R. 20.9.
28. 2342 47 U.S.C. 332(d)(3).
29. 2343 The Commission held in the CMRS Second Report and Order that any PMRS provider that "employs spectrum for not-for-profit services, such as an internal operation, but also uses its excess capacity to make available a service that is intended to receive compensation, will be deemed to be a 'for profit' service to the extent of such excess capacity activities." Implementation of Section 3(n) and 332 of the Communications Act, Second Report and
Order, GN Docket No. 93-252, 9 FCC Rcd 1411, 1429 (1994) (CMRS Second Report and Order).
30. 2344 47 U.S.C. 153(46).
31. 2345 The term "telecommunications" means "the transmission, between or among points specified by the user, of information of the user's choosing, without change in form or content of the information as sent and received." 47 U.S.C. 153(43).
32. 2346 47 U.S.C. 153(46).
33. 2347 CMRS Second Report and Order, 9 FCC Rcd at 1457-58 (1994).
34. 2348 47 U.S.C. 160.
35. 2349 See 47 U.S.C. 251. The 1996 Act makes further provisions for rural carriers and, upon an appropriate showing, carriers serving fewer than 2 percent of the nation's access lines. See 47 U.S.C. 251(f)(1), (f)(2).
36. 2350 47 U.S.C. 251.
37. 2351 The Illinois Commission lists several features which could provide access to individuals with disabilities, such as access to interrupt messages, directory assistance and operator services by users of text telephones (TTYs). Illinois Commission comments at 82-83. Specific accessibility requirements such as those proposed by the Illinois Commission will need to be developed in proceedings to implement section 255, and therefore, we will not set forth any required "features, functions, or capabilities" in this proceeding.
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Nathan Stratton nathan@robotics.net
First Created February 15, 1999
Last Modified February 15, 1999