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IP: " A scary, but not unanticipated, thought..."
From: Dave Farber <farber () cis upenn edu>
Date: Mon, 15 Nov 1999 16:01:23 -0500
From: Chris Savage <chris.savage () CRBLAW COM> I just got done reading the FCC's decision in the bulk-DSL-resale case (FCC 99-330). It reaches what strikes me as the correct result: when an ILEC sells a bulk, discounted DSL offering to an ISP, that isn't an offering "at retail" subject to a wholesale discount under Section 251(c)(4). (I would note, though I don't think the order did, that these services may be purchased for resale *without* a discount under Section 251(b)(1), but that's a nit.) The basic rationale is that bulk-DSL is sold to ISPs, who bundle the DSL (telecommunications) service with their Internet access (information) service to create a new, bundled (information) service: high-speed Internet access. The latter service, not the bulk-DSL, is sold "at retail." Readers of the list will recall that I had noted that the FCC has never disclaimed the *power* to regulate ISPs, but has, instead, merely concluded that it will not/should not do so. Apropos of that comment are the last two sentences of paragraph 20 of the order: "We note that our conclusions herein do not change the regulatory status of the Internet Service Provider, which we have previously concluded to be an information service provider rather than a telecommunications carrier. We believe that *****MAINTAINING**** the non-carrier status of [ISPs], ****IN THIS INSTANCE,**** benefits the public interest." The scary implications of this are that (a) the non-carrier status of ISPs is something that is "maintained" by regulatory fiat, and (b) the FCC will decide whether or not to "maintain" that status on a case-by-case basis. I think both of those conclusions are questionable under FCC v. NARUC and Southwestern Bell v. FCC (the "dark fiber" case). The courts have basically said that whether an entity is a carrier or not is determined on the basis of the facts -- that is, what the entity does -- and not on the basis of regulatory ukase (to use a Judge Bork term). It is certainly true that ISPs may do some things in some circumstances that make them carriers. But as long as "information services" is defined as it is, and as long as ISPs do what they do (including store-and-forward of email, retrieval of web pages, etc.), it would be factually and legally erroneous for the FCC to fail to "maintain" ISPs' "non-carrier status." They are non-carriers by virtue of the statute, not by virtue of regulatory policy. So: ISPs are not carriers due to the fact that what they sell does not meet the statutory definition of "telecommunications." If what they sell changes (or if we have been wrong all along, and it *does* meet that definition), and the FCC wants them to be unregulated nonetheless (a perfectly logical conclusion, ISTM), then the FCC may (and should) issue a ruling under Section 10 of the Act to the effect that, "even if some of what ISPs do counts as 'carriage' subject to Title II, we hereby declare that we will forbear from applying Title II to them in any respect." In other words, *IF* ISPs may properly be treated as "carriers" for some purposes (debatable, I suppose), *THEN* the FCC may and should deregulate them under Section 10. But the current state of the play is that they are not, and may not properly be, classified as "carriers." Am I jumping at shadows here? Christopher W. Savage, Cole, Raywid & Braverman, L.L.P. 1919 Penn. Ave. N.W., Suite 200, Washington, D.C. 20006 voice: 202-828-9811 e-fax: 703-991-1470 fax: 202-452-0067 *************************************************************************** This electronic mail transmission may contain confidential or privileged information. If you believe that you have received the message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. ***************************************************************************
_____________________________________________________________________ David Farber The Alfred Fitler Moore Professor of Telecommunication Systems University of Pennsylvania Home Page: http://www.cis.upenn.edu/~farber Email: farber () cis upenn edu Home: +1 610 274 8292; Cell and Office: +1 215 327 8756; Fax: +1 408 490 2720 _____________________________________________________________________ David Farber The Alfred Fitler Moore Professor of Telecommunication Systems University of Pennsylvania Home Page: http://www.cis.upenn.edu/~farber Email: farber () cis upenn edu Home: +1 610 274 8292; Cell and Office: +1 215 327 8756; Fax: +1 408 490 2720 _____________________________________________________________________ David Farber The Alfred Fitler Moore Professor of Telecommunication Systems University of Pennsylvania Home Page: http://www.cis.upenn.edu/~farber Email: farber () cis upenn edu Home: +1 610 274 8292; Cell and Office: +1 215 327 8756; Fax: +1 408 490 2720
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- IP: " A scary, but not unanticipated, thought..." Dave Farber (Nov 15)