On Wed, 7 May 1997, Kent W. England wrote:
My reading of the 96 Act (together with the brilliant lawyer who explains all the legal telephony jargon to me) does not show any re-definition of a telecommunications carrier. There is almost no mention of Internet services, beyond a passing mention of access for schools and libraries. The 96 Act does nothing to change or amend the definitions and regulations of telephony carriers or Internet Service Providers. The Internet was scarcely thought of in the bruising battles over control of telephony turf.
The fact that the 1996 Act draws no distinction which is illustrative of my point. It appears, that the legislative intent was not to distinguish between these services, clearly they contemplated them all.
The interpretations of the incumbent local exchange carriers certainly consider Internet services as non-tariffed service, as almost all have set up separate non-tariffed subsidiaries for Internet service. However, many
Among other reasons, that I allude to, like exemption from rights to interconnection.
ILECs consider that their Internet services are subject to some regulation from the Modified Final Judgement on the breakup of the Bell System, such as inter-LATA transport of customer traffic. Hence these clumsy, LDIP (long distance Internet Provider) arrangements between ILEC Internet subsidiaries and wholesale backbone providers.
That's regulatory bullet dodging. As you know they are prohibited from being in the LD business until they have made a case for allowing local competition.
The PUCs of several states have accepted the argument that Internet services may be offered by unregulated subsidiaries of the regulated incumbent LECs. The issue of whether these unregulated subsidiaries are subject to the MFJ provisions has not been tested and probably never will be tested by the Federal courts of jurisdiction.
I don't know about other states but from what I can tell here in California the CPUC hasn't really looked at it. From the meetings I've been to, the ISP business arm hasn't helped PacBell with their new ISP tariff argument either. As I've point out at the CPUC, because of how PacBell has organized their service offering, that unregulated subsidiary is a prime offender in the 'congestion problem' that they have taken to the FCC and in that argument they make no mention of their own subsidiary and how it nails up line side trunks and switch ports.
The subsidiary status is solely to prevent unlawful transfer of regulated carrier goods and services to the unregulated subsidiary, whether Internet service, voicemail or dry-cleaning services. (Yeah, I made that last one up.) It is quite clear to me that Internet services are treated like any other unregulated business (such as dry cleaning) that the regulated ILECs choose to enter. There are very few areas that they are strictly prohibited from entering by the Federal MFJ. There are no business activities that I know of that are prohibited by the PUCs of the several states.
I'm not suggesting that the regulatory authorities step in and control the Internet with huge brush strokes. The regime that we live under for switched/circuit services has taken many years to develop. So too will the regulatory regime for Internet services. What I am suggesting is that there are some minimal non-discriminatory rules that need to be enforced. Even the threat of this, in the sense that the regulators notice bad behavior on the part of companies engaged in other regulatory matters before these bodies and that awareness translates into less than favorable results in their other battles we should see some modification in what will otherwise be unacceptable behavior. It is fair and reasonable to accept nothing less from our regulators.
There is no definition or redefinition of "carrier" in the 96 Act. The MFJ is still in force, barring ILECs from inter-LATA transport of telephony and whatever-else. The definition of "carrier" dates back to 1934 and doesn't shed any light on Internet services since such services were not well understood in 1934.
I disagree see above.
The Federal government and Federal courts have done nothing to define a legal or regulatory status for Internet service providers. From what is writ in law and precedent we know nothing about what an Internet service might be. We must wait for the FCC to clarify the status of Enhanced Service Providers and their responsibility for access charges in their upcoming rule making to glean a hint of what an ISP might be. We may wait, if we choose, for some future Congress to clarify the status of Internet service providers, but I expect the point to be moot by the time Congress is able to articulate the obvious.
I'm slightly more hopeful. This access charge exemption fear is getting old. If we accept that there are a wide variety of rights (ie reciprocal billings, collocation and interconnection) and obligations (paying into all the funds) associated with being a Carrier, this industry that we have created may get much of the respect that it deserves.
I make these rebuttals with the understanding that they have little to do with the issue of UUNET and I mean no disrespect to you and your stand regarding those issues. My respects and good wishes go out to you in your continuing struggle, but I thought it a good idea to say a thing or two about the state of law and regulation with respect to the Internet. Thank you, David, and good luck to you, but don't expect the Feds to help much in the struggle of ISPs for world domination.
I appreciate that but I'm not on a crusade I'm just pointing out some of the most offensive anti-competitive behavior by some but not all of the biggest providers. Look for some results on this disclosure issue. These folks don't have a legal leg to stand on there and its bound to show in the near future as they get grilled in the press. They all have ongoing issues in front of these regulators and hypocrisy is costly in those circles. --david