IP: FCC Request Comments: Does Interlata Service = Internet?

[Dave Farber <farber () cis upenn edu>]

> > > A Service of www.cybertelecom.org <<<

http://www.fcc.gov/Bureaus/Common_Carrier/Public_Notices/2000/da002530.txt
COMMENTS REQUESTED IN CONNECTION WITH COURT REMAND OF
NON-ACCOUNTING SAFEGUARDS ORDER

CC DOCKET NO. 96-149


Released:  November 8, 2000

Comment Date:  Wednesday, November 29, 2000
Reply Comment Date:  Monday, December 11, 2000

In the Non-Accounting Safeguards Order, the Commission concluded that the
term "interLATA services" as used in section 271 of the Communications Act
of 1934, as amended, encompasses not only interLATA telecommunications
services, but also interLATA information services.   The Commission reasoned
that interLATA information services are "interLATA services" because they
include a bundled, interLATA telecommunications component.   Although
several parties petitioned for reconsideration of various aspects of the
Non-Accounting Safeguards Order, no party asked the Commission to reconsider
its ruling that the term
"interLATA services" includes information services.

Following the Commission's adoption of the Third Reconsideration Order,  the
Bell Atlantic telephone companies (n/k/a the Verizon telephone companies)
and US WEST, Inc. (n/k/a Qwest Communications International Inc.) petitioned
for judicial review of the Non-Accounting Safeguards Order in the United
States Court of Appeals for the District of Columbia Circuit,
seeking reversal of the Commission's holding that the term "interLATA
services" extends to both telecommunications and information services.  In
their joint appellate brief, the petitioners contend that the agency's
statutory interpretation conflicts with the statute's plain meaning.  In
support of
their argument, the petitioners rely on a 1998 Commission Report to Congress
in which, they claim, the Commission declared "that `telecommunications' and
`information services' are
mutually exclusive categories and that a provider of `information services'
does not provide `telecommunications' but rather uses `telecommunications.'"
Petitioners argue that if a provider
of information services does not provide telecommunications, then it does
not provide "interLATA service," which the statute defines as a form of
"telecommunications."  Thus,
petitioners contend, the restrictions established by section 271 do not
apply when a Bell operating company or its affiliate provides an information
service.

In response to the petitioners' appellate brief, the Commission moved for a
voluntary remand to consider further the issues raised by the petitioners.
The Commission explained that a
remand was necessary because the arguments advanced by the petitioners in
their appellate brief had not been presented in the administrative
proceeding.  The petitioners' appellate brief relied heavily on a Report to
Congress that the Commission issued more than a year after release of the
Non-Accounting Safeguards Order.  The Commission further noted that, in
comments filed
during reconsideration of other aspects of the Non-Accounting Safeguards
Order, the petitioners appeared to advocate the very same statutory
interpretation that they now challenge on appeal.
In light of these factors, the Commission asked that the court grant it the
opportunity to consider the threshold question of statutory interpretation -
the proper scope of the term "interLATA services" - based on a more complete
administrative record.  On October 27, 2000, the court granted the
Commission's motion and remanded the matter to the Commission.

We have placed a copy of the petitioners' appellate brief in the
above-captioned docket.  To aid the Commission in meeting its commitment to
the court to consider and address within 180
days the issues raised by the petitioners, the Common Carrier Bureau issues
this Public Notice seeking comment on the arguments raised by the
petitioners before the D.C. Circuit.  We ask that
the parties address the following issues, as well as any additional issues
previously raised before  the Commission or the court that are relevant to
this inquiry.

1.  Does the provision of an "information service" necessarily include a
bundled telecommunications component that falls within the Act's definition
of an "interLATA service"?
To the extent that it is using telecommunications, can the provider of an
information service also be deemed to be providing telecommunications?  Does
the analysis of this issue change if the information service provider is
transmitting services over its own telecommunications facilities rather than
using facilities obtained from other carriers?

2.  Considering the Act's text, structure, purpose, and history, what
effect, if any, should the Commission give to section 271(g)'s reference to
"incidental interLATA services," which the Commission has interpreted as
applying to both incidental telecommunications and information services?

3.  Considering the Act's text, structure, purpose, and history, what
effect, if any, should the Commission give to section 272(a)(2)(B)'s
reference to "interLATA telecommunications
services"?  Does use of this term imply that interLATA telecommunications
service is a subset of a more general category of "interLATA services" that
could include interLATA information
services, or did Congress mean simply to distinguish common-carrier
transmission services from
non-common carrier transmission services, as the petitioners contend?

4.  Considering the Act's text, structure, purpose, and history, what
effect, if any, should the Commission give to section 272(a)(2)(C)'s
reference to "interLATA information services"?  For purposes of interpreting
the term "interLATA services" in section 271, is there any significance to
the fact that section 272 treats "interLATA telecommunications services"
differently from "interLATA information services"?

5.  The petitioners' appellate brief quotes several passages from the
Commission's 1998 Report to Congress.  Do those passages support the
conclusion that information services fall
outside of the scope of the statutory definition of "interLATA service"?  If
so, why?  If not, why not?

Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R.
1.415, 1.419, interested parties may file comments on or before Wednesday,
November 29, 2000, and
reply comments on or before Monday, December 11, 2000.  All filings should
refer to CC Docket No. 96-149.  Comments may be filed using the Commission's
Electronic Comment Filing System
(ECFS) or by filing paper copies.   Comments filed through the ECFS can be
sent as an electronic file via the Internet to
<http://www.fcc.gov/e-file/ecfs.html>.  Parties may also submit an
electronic comment by Internet e-mail.  To get filing instructions for
e-mail comments, commenters should send an e-mail to ecfs () fcc gov, and
should include the following words in the body of the message, "get form
<your e-mail address." A sample form and directions will be sent in reply.

Parties choosing to file by paper copy must file an original and two copies
of each pleading with the Commission's Secretary, Magalie Roman Salas,
Office of the Secretary, Federal
Communications Commission, 445 12th St. SW, Room TW-B204, Washington, D.C.
20554.  An additional copy should also be sent to:  (1) Johanna Mikes,
Common Carrier Bureau, Policy and
Program Planning Division, FCC, 445 12th St., SW, Room 5-C163, Washington,
D.C.  20554, and (2) the Commission's contractor for public service records
duplication, International
Transcription Services, Inc. (ITS), 445 12th Street, SW, Room CY-B402,
Washington, D.C. 20554.  Comments and reply comments will be available for
public inspection during regular
business hours in the FCC Reference Center, Room CY-A257, 445 12th Street,
SW, Washington,  D.C. 20554.  Copies may also be obtained from ITS, 445 12th
Street, SW, Room CY-B402,
Washington, D.C.  20554, (202) 314-3070.

We will continue to treat this proceeding as "permit-but-disclose" for
purposes of the Commission's ex parte rules.  See 47 C.F.R.    1.1200,
1.1206.  Persons making oral ex parte presentations are reminded that
memoranda summarizing the presentations must contain summaries of the
substance of the presentations and not merely a listing of the subjects
discussed.

For further information, contact:  Johanna Mikes, Policy and Program
Planning Division, Common Carrier Bureau at (202) 418-1535.

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~ Robert Cannon
~ www.cybertelecom.org
~ cannon () world oberlin edu
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