IP: My comments to the Wyoming PSC on reciprical compensation

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

> Date: Fri, 28 May 1999 18:51:32 -0600
> To: farber () cis upenn edu, ip-sub-1 () admin listbox com
> From: Brett Glass <brett () lariat org>
>
>
>
>
> May 7, 1999
>
> Mr. Steve Oxley
> Secretary and Chief Counsel
> Wyoming Public Service Commission
> 2515 Warren Avenue, Suite 300
> Cheyenne, Wyoming 82002
> soxley () missc state wy us
>
> Sir:
>
> Imagine the following scenario. Suppose that I call up my mother, who lives a few blocks away, on the phone. My mother 
> answers, saying, "Son, how good of you to call! I have Uncle Sam in California on the other line!"
>
> "Tell him 'Hi' for me," I say, and she does so.
>
> If one follows the logic of our nation's incumbent local exchange carriers (ILECs), who seek to deny reciprocal 
> compensation for calls to Internet service providers (ISPs), my call to my mother has just become a long distance call.
>
> Such a conclusion is, of course, absurd. When I dialed my mother, the call went through the local central office and 
> not via any long distance equipment. The phone rang just up the street, and her the call was clearly answered using 
> her (local) telephone set. The fact that she happened to relay information from me to my uncle in California does not 
> mean that my call to her telephone set should be treated as long distance -- for billing purposes or for any other 
> reason.
>
> Yet, this is precisely the absurd conclusion that would follow if one concluded that calls to ISPs were "long 
> distance," and should be exempt from reciprocal compensation, because some of the information they conveyed was 
> relayed to the global Internet by the ISP's Internet routers, leased lines, and other equipment.
>
> Likewise, a call to a voice messaging system, a paging service, or a FAX relaying machine which resent FAXes to a 
> remote location would likewise be considered a long distance call, even though it rang at a local office and was 
> handled by local equipment.
>
> Worse still, the parties to the call may not themselves know, at the time the call is made, whether the information it 
> conveys may later be relayed to a remote location. (Such a possibility by itself would render any rule based on what 
> might later be done with the information unconstitutionally vague on both the state and federal levels.)
>
> The "Duck Test"
>
> A call to an ISP's modem is handled in precisely the same way   as any other local telephone call. (The central office 
> equipment, in fact, need not know whether a modem answered that particular call.) It rings like a local call. It can 
> result in a busy signal like a local call. It is answered by equipment which meets the same FCC Part 68 electronic 
> specifications as a telephone. And if one hooks a telephone up to the ISP's line, the call could actually be answered 
> by a human being. In short, it is electronically like a local call, is billed like a local call, travels through the 
> same equipment as a local call, and even carries audio like a local call (though the sound, in the case of a data 
> call, may only be intelligible to a modem). The service provided by the local telephone company is precisely the same 
> in both cases. In short, a call to a local ISP passes, in every conceivable way, the "duck test" for a local call.
>
> It is even possible to have a telephone line that's used for both voice and data. Suppose an ISP's lines were 
> connected to a Touch-Tone operated switch which allowed calls to be answered either by a modem or a human being. If 
> reciprocal compensation were denied for that line, the calls that were answered by a human would clearly represent an 
> unwarranted loss of revenue to the carrier handling the call.
>
> As the discussion above shows, the definition of a local vs. a long-distance call should not be dependent upon the 
> content of the call or what is done with that content. Nor should it be teleological -- that is, dependent upon 
> whether the information is -- or might be -- subsequently passed on to a distant location by some other means. To do 
> so would raise a myriad of hair-splitting issues. What's more, to enforce any such rule would require monitoring the 
> content of the connection -- not only an inappropriate measure, but one which may be unconstitutional for a government 
> entity to require. It might also pave the way for rules that would allow an LEC to dictate the sort of equipment that 
> could be attached to a telephone line which is billed in a particular way. (Such a requirement has not existed since 
> Carterfone, and the public has derived immeasurable benefit from being able to connect an innovative device of their 
> choice to their telephone lines so long as it is Part 68-compliant.)
>
> In short, The only consistent, enforceable, and sensible conclusion is that a call to an ISP's local telephone number 
> is, indeed, a local call in every respect. While the FCC has given Wyoming's PSC the latitude to rule otherwise, any 
> movement to do so would cause irreparable harm to the citizens and businesses of Wyoming.
>
> Sincerely,
> Brett Glass
> P.O. Box 1588
> Laramie, WY  82073-1588
> (307)-745-0351
> brett () lariat org