**Before the**

> **Federal Communications Commission**
>
> **Washington, D.C. 20554**

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Declaratory ruling

**Adopted: March 22, 2007 Released: March 23, 2007**

By the Commission: Chairman Martin and Commissioners Tate and McDowell
issuing separate statements; and Commissioners Copps and Adelstein
concurring and issuing separate statements.

Table of Contents

Heading Paragraph \#

I. INTRODUCTION 1

II\. Background 3

A. Commission Classification of Broadband Internet Access Services 3

B. Prior Proceedings Considering Issues Pertaining to Wireless Broadband
8

C. Current Wireless Broadband Internet Access Services and Technologies
11

III\. DISCUSSION 18

A. Classification of Wireless Broadband Internet Access Service as
Information Service 19

B. Classification of the Transmission Component of Wireless Broadband
Internet Access Service as "Telecommunications" and not
"Telecommunications Service" 29

C. Continued Applicability of Title III Licensing Provisions 35

D. Applicability of the "Commercial Mobile Service" Provisions of
Section 332 of the Act 37

E. Applicability of Other Statutory Provisions 57

1\. Access by Persons with Disabilities 58

2\. Pole Attachments and Local Authority over Zoning 60

3\. Rights and Obligations related to Interconnection 66

4\. Consumer Protection Obligations 69

IV\. ordering clauses 71

# INTRODUCTION

1.  In this Declaratory Ruling, we find that wireless broadband Internet
    access service is an information service under the Communications
    Act of 1934, as amended (Communications Act or Act).[^1] We also
    find that the transmission component of wireless broadband Internet
    access service is "telecommunications" and that the offering of the
    telecommunications transmission component as part of a functionally
    integrated Internet access service offering is not
    "telecommunications service" under section 3 of the Act. Further, we
    find that neither the Communications Act nor relevant precedent
    mandates that broadband transmission be a "telecommunications
    service" when provided to an Internet Service Provider (ISP) as a
    wholesale input for the ISP's own wireless broadband Internet access
    service offering, but the provider may choose to offer it as such.
    Finally, we find that mobile wireless broadband Internet access
    service is not a "commercial mobile service" under section 332 of
    the Act.[^2]

2.  In making these determinations, we provide regulatory certainty
    regarding the classification of wireless broadband Internet access
    service.[^3] This approach is consistent with the framework that the
    Commission established for cable modem Internet access service,[^4]
    wireline broadband Internet access service,[^5] and Broadband over
    Power Line (BPL)-enabled Internet access service[^6] and it
    establishes a minimal regulatory environment for wireless broadband
    Internet access service that promotes our goal of ubiquitous
    availability of broadband to all Americans.[^7] Addressing the
    appropriate regulatory classification of wireless broadband Internet
    access also furthers our efforts to establish a consistent
    regulatory framework across broadband platforms by regulating like
    services in similar manner.[^8]

# Background

## Commission Classification of Broadband Internet Access Services

3.  The Commission has not previously considered the appropriate
    classification of wireless broadband Internet access service. Title
    III of the Act generally provides the Commission with authority to
    regulate "radio communications" and "transmission of energy by
    radio."[^9] Among other provisions, Title III allows the Commission
    to make such rules and regulations and prescribe such restrictions
    and conditions as may be necessary to carry out the provisions of
    the Act.[^10] The Act also distinguishes between fixed and mobile
    services.[^11] Fixed wireless telecommunications services provided
    on a common carrier basis are generally subject to regulation under
    Title II of the Act. Section 332 of the Act provides the regulatory
    scheme for mobile services, differentiating between private and
    commercial mobile services and requiring that commercial mobile
    radio service (CMRS) providers be regulated as common carriers under
    Title II of the Act.[^12]

4.  In proceedings involving cable, wireline, and BPL, the Commission
    has examined the regulatory classification applicable to certain
    broadband services and determined to adopt a pro-competitive,
    deregulatory regime for these services. In particular, the
    Commission has classified cable, wireline, and BPL broadband
    Internet access services as "information services," thus reducing
    regulatory requirements and uncertainties that could have slowed
    development of these broadband services.

5.  The Commission released the *Cable Modem Declaratory Ruling* in
    2002, classifying cable modem service as an interstate information
    service, which includes no separate offering of a telecommunications
    service.[^13] The Commission found that the classification of cable
    modem service depended on the nature of the functions that the end
    user is offered and that cable modem service, in fact, combined "the
    transmission of data with computer processing, information
    provision, and computer interactivity, enabling end users to run a
    variety of applications."[^14] As a part of the classification, the
    Commission determined that the *Computer Inquiry* obligation to
    offer the transmission underlying any information service on a
    common carrier basis did not apply to information services provided
    over cable facilities.[^15] In *NCTA v. Brand X* the Supreme Court
    upheld, as a lawful construction of the Act, the Commission's
    conclusion that cable companies that sell broadband Internet service
    do not provide "telecommunications services" and therefore are
    exempt from mandatory Title II common carrier regulation.[^16]

6.  On September 23, 2005, the Commission issued the *Wireline Broadband
    Internet Access Services Order*, which, among other things,
    established a regulatory framework for broadband Internet access
    services offered by wireline facilities-based providers.[^17] The
    Commission acted to further its goal of "developing a consistent
    regulatory framework across platforms by regulating like services in
    a similar functional manner."[^18] There, the Commission found that
    wireline broadband Internet access is an information service because
    it offers end users "the capability for 'generating, acquiring,
    storing, transforming, processing, retrieving, utilizing, or making
    available information via telecommunications.'"[^19] The Commission
    also determined that neither the Communications Act nor relevant
    precedent mandated that broadband transmission be a
    telecommunications service when provided to an ISP, but the provider
    may choose to offer it as such.[^20] The Commission further
    determined that the use of the transmission component of wireline
    broadband Internet access service as part of a facilities-based
    provider's offering of that service to end users using its own
    transmission facilities is "telecommunications" and not a
    "telecommunications service" under the Act.[^21] Additionally, the
    Commission noted that the broadband Internet access market had
    several emerging platforms and providers in most areas of the
    country.[^22] The Commission also eliminated the *Computer Inquiry*
    requirements applicable to wireline broadband Internet access
    services offered by facilities-based providers.[^23]

7.  On November 7, 2006, the Commission released the *BPL-Enabled
    Internet Access Services Order*, classifying BPL-enabled Internet
    access service as information service. The Commission found that
    BPL-enabled Internet access service is an information service
    because it offers a single, integrated service (*i.e.*, Internet
    access) to end users, in that BPL-enabled Internet access service
    combines computer processing, information provision, and computer
    interactivity with data transport, enabling end users to run a
    variety of applications (*e.g.*, e-mail, web pages, and
    newsgroups).[^24] The Commission also determined that the
    transmission component underlying BPL-enabled Internet access
    service is "telecommunications" and that the offering of the
    telecommunications transmission component as part of a functionally
    integrated finished BPL-enabled Internet access service offering is
    not a "telecommunications service" under the Act."[^25] The
    Commission noted that its determination regarding BPL-enabled
    Internet access service would remove regulatory uncertainty
    regarding the classification of the service and would further the
    Commission's goal of developing a consistent regulatory framework
    across broadband platforms by regulating like services in a similar
    manner.[^26]

## Prior Proceedings Considering Issues Pertaining to Wireless Broadband

8.  The Commission has received comments regarding the appropriate
    regulatory classification of wireless broadband Internet access
    services in the context of the *IP-enabled Services NPRM*, the
    Wireless Broadband Access Task Force Report, and the *Consumer
    Protection in the Broadband Era NPRM*.

9.  Commenting in response to the *IP-enabled Services NPRM*,[^27] both
    CTIA and Virgin Mobile recommended generally that wireless broadband
    be regulated with a light touch and only at the federal level.[^28]
    In response to the Wireless Broadband Access Task Force Report,[^29]
    commenters consistently endorsed a national approach for wireless
    broadband that has a light regulatory touch, with at most a limited
    state role.[^30] Cingular Wireless & Bellsouth (filing jointly),
    CTIA, T-Mobile, and Microsoft all asserted that wireless broadband
    should be classified as an interstate service,[^31] regardless of
    whether it was deemed a telecommunications service or information
    service.[^32] In addition, Cingular Wireless & BellSouth and Cisco
    contended that wireless broadband Internet access service should be
    classified as an information service, asserting that the
    deregulatory features of CMRS allowed under section 332 were not
    sufficient.[^33] Finally, NextG recommended that the Commission
    carefully consider all of the ramifications of classifying wireless
    broadband Internet access service as an information service, noting
    that if an entity is classified as providing only information
    services, it may face even greater hurdles in accessing utility
    poles and public rights-of-way \-- two elements that NextG maintains
    are critical to the deployment of wireless broadband
    infrastructure.[^34]

10. In response to the *Consumer Protection in the Broadband Era
    NPRM*,[^35] both Cingular Wireless and CTIA commented on matters
    associated with the classification of wireless broadband services.
    Cingular Wireless asserted that broadband Internet access services,
    including those provided over wireless networks, were interstate in
    nature.[^36] In addition, Cingular Wireless noted that, because the
    CMRS industry was already robustly competitive and bound by consumer
    protection rules that protected the public interest, there was no
    need to extend wireline consumer protection policies to wireless
    broadband Internet access services.[^37] Cingular Wireless also
    argued that there is a statutory basis for not applying generic
    broadband regulation to CMRS operators. Section 332, it argued,
    differentiates CMRS from other delivery technologies by limiting
    state authority and requiring the Commission to forbear from
    unnecessary common carrier regulation.[^38] A CMRS operator's
    broadband Internet access service, it asserted, is part of a CMRS
    service offering and cannot be subjected to levels of regulation
    that the Commission finds appropriate for other providers.[^39]
    Meanwhile, CTIA stated that broadband Internet access, including
    wireless, was an interstate service,[^40] and argued that the
    Commission should regulate wireless with a light regulatory touch
    (if it regulates at all), "regulating down" to the least regulated
    element of that service.[^41]

## Current Wireless Broadband Internet Access Services and Technologies

11. Wireless broadband Internet access services use spectrum, wireless
    facilities and wireless technologies to provide subscribers with
    high speed Internet access capabilities.[^42] Some wireless network
    technologies, such as CDMA 1xRTT and GPRS, transmit data at speeds
    less than 200 kbps in one direction and provide customers with
    access to mobile data applications such as text messaging, e-mail,
    and ring tone downloads. Wireless *broadband* networks, on the other
    hand -- such as CDMA 1x EV-DO (EV-DO), Wideband CDMA (WCDMA) with
    High Speed Downlink Packet Access (HSDPA), and Wi-Fi -- transmit
    data at speeds greater than 200 kbps in at least one direction and
    provide access to the applications available on the slower networks
    as well as services that require greater bandwidth, such as video
    programming, music downloads, and high-resolution games. Wireless
    broadband service providers also offer Internet access, although
    wireless broadband Internet access service is offered in different
    ways depending on the provider and the end user's device. Some
    wireless broadband Internet access services offer full and
    unrestricted access to the Internet, such as those which consumers
    can receive using a laptop computer with a Wi-Fi or EV-DO
    connection. Other wireless broadband Internet access services, such
    as those available with a cell phone, enable users to access a
    limited selection of web sites.[^43] Wireless broadband Internet
    access services can be provided using mobile, portable, or fixed
    technologies,[^44] and wireless broadband technologies can transmit
    data over short, medium, or long ranges, and can be used both
    through the licensed use of spectrum and unlicensed devices.

12. Several mobile telephone carriers currently provide, in certain
    locations, wireless broadband Internet access through mobile
    broadband technologies and the licensed use of spectrum. For
    example, EV-DO and WCDMA with HSPDA are potentially capable of
    providing wireless broadband Internet access at speeds ranging from
    400-800 kbps.[^45] These technologies can enable subscribers to
    access the Internet while in motion (traveling at high speeds) via,
    for example, a smartphone, or a wireless modem card connected to a
    laptop computer or PDA.[^46]

13. Wireless broadband Internet access services that are often
    considered "portable" in nature are currently offered, for example,
    by providers through Orthogonal Frequency Division Multiplexing
    (OFDM) technology and the licensed use of spectrum.[^47] These
    providers enable their subscribers to access the Internet with
    "plug-and-play" modem devices that attach to a desktop or laptop
    computer. Customers can transport these modem devices to other
    locations in the provider's coverage area where a network signal is
    available, though they may not have the ability to maintain a
    connection while in motion (traveling at high speeds). These devices
    are currently manufactured in accordance with vendor-specific,
    proprietary standards. However, standardized 802.16 WiMAX equipment
    is being developed.[^48] Typical downstream speeds for the wireless
    Internet access services, offered using portable broadband
    technologies, range from 768 kbps to 1.5 Mbps, and networks can
    extend five to 30 miles.[^49]

14. Wireless broadband Internet access services offered using fixed
    wireless broadband technologies allow consumers to access the
    Internet from a fixed point while stationary and often require a
    direct line-of-sight between, for example, the wireless rooftop
    antenna and the network transmitter. These services have been
    offered through both the licensed use of spectrum and unlicensed
    devices. For example, thousands of small Wireless Internet Services
    Providers (WISPs) provide such wireless broadband Internet access at
    speeds of around one Mbps using unlicensed devices, often in rural
    areas not served by cable or wireline broadband networks.[^50] These
    networks typically have a reach of one to five miles, and customers
    often must have a rooftop antenna that can establish a line-of-sight
    connection with the network transmitter.

15. Consumers also access the Internet through Wireless Local Area
    Networks (WLANs). WLANs are widely deployed and enable consumers to
    obtain wireless broadband Internet access within 100 to 300 feet of
    a wireless access point. The most prevalent WLAN technology is
    equipment manufactured in accordance with the IEEE 802.11 family of
    standards, commonly known as "Wi-Fi," short for wireless fidelity.
    Wi-Fi networks use unlicensed devices and feature data transfer
    rates at speeds of up to 11 Mbps for 802.11b and up to 54 Mbps for
    802.11a and 802.11g. Wi-Fi networks often must rely on another type
    of broadband connection, whether wireline, cable, or wireless, for
    access to the Internet. Wi-Fi allows consumers to extend, for
    example, the reach of a landline broadband connection within their
    home or to connect to the Internet at public "hot spots," such as
    restaurants, coffee shops, hotels, airports, convention centers, and
    city parks, using a laptop computer or smartphone with an internal
    or external Wi-Fi modem.[^51] Some mobile telephone carriers use
    Wi-Fi hot spots to complement their mobile data services provided
    through the licensed use of spectrum.[^52]

16. Wireless broadband service providers offer access to different types
    of content and applications based on the speed and capabilities of
    the technology used to provide the service and the type of end user
    device. For instance, many of the mobile telephone carriers that
    provide mobile wireless broadband service for mobile handsets offer
    a range of IP-based multimedia content and services -- including
    ring tones, music, games, video clips and video streaming -- that
    are specially designed to work with the small screens and limited
    keypads of mobile handsets.[^53] This content is typically sold
    through a carrier-branded, carrier-controlled portal. Mobile
    handsets typically enable users to access a limited selection of web
    sites; in some cases, providers use filters to limit the web sites
    that a customer can access, and, in other cases, subscribers can
    enter any URL using a handset but the site may not be viewable due
    to software, processing, or other constraints of the device. On the
    other hand, wireless broadband Internet access services for laptop
    and desktop computers typically allow consumers to access the same
    applications they would have with a cable or wireline broadband
    Internet access connection, including full Internet access, e-mail,
    Internet file downloads, and corporate server access.

17. The number of reported subscribers to wireless broadband Internet
    access service continues to grow.[^54] Wireless broadband
    technologies and the business models for their deployment continue
    to evolve at a rapid pace. There have been significant technical
    advances in recent years, and more are anticipated over the next few
    years. Further, we expect that wireless broadband will play a
    critical role in ensuring that broadband reaches rural and
    underserved areas, where it may be the most efficient means of
    delivering these services.

# DISCUSSION

18. For the reasons discussed below, we classify wireless broadband
    Internet access service as an information service. We also find that
    the transmission component of wireless broadband Internet access
    service is "telecommunications" and that the offering of the
    telecommunications transmission component as part of a functionally
    integrated Internet access service offering is not
    "telecommunications service" under section 3 of the Act. Further, we
    find that neither the Communications Act nor relevant precedent
    mandates that broadband transmission be a "telecommunications
    service" when provided to an ISP as a wholesale input for the ISP's
    own wireless broadband Internet access service offering, but that
    the provider may choose to offer it as such. We also find that
    mobile wireless broadband Internet access service is not a
    "commercial mobile service" under section 332 of the Act. Finally,
    we conclude that wireless broadband Internet access service is
    jurisdictionally interstate.

## Classification of Wireless Broadband Internet Access Service as Information Service

19. *Definition.* For purposes of this proceeding, we define wireless
    broadband Internet access service as a service that uses spectrum,
    wireless facilities and wireless technologies to provide subscribers
    with high-speed (broadband) Internet access capabilities.[^55] The
    definition we adopt here is consistent with the definition of
    broadband Internet access service that the Commission previously has
    adopted in the wireline and cable contexts.

20. In both the cable and wireline contexts, the Commission focused on
    the end-user's experience in defining cable modem and wireline
    broadband Internet access service.[^56] The Supreme Court upheld
    this approach in *Brand X*.[^57] In the *Cable Modem Order*, the
    Commission stated that cable modem service was "a service that uses
    cable system facilities to provide residential subscribers with
    high-speed Internet access, as well as many applications or
    functions that can be used with high-speed Internet access."[^58] In
    the *Wireline Broadband Internet Access Order*, the Commission
    defined wireline broadband Internet access service as "a service
    that uses existing or future wireline facilities of the telephone
    network to provide subscribers with \[broadband\] Internet access
    capabilities."[^59]

21. We adopt a similar definition for wireless broadband Internet access
    and define wireless broadband Internet access service as a service
    that uses spectrum, wireless facilities and wireless technologies to
    provide subscribers with high-speed (broadband) Internet access
    capabilities. As with both cable and wireline Internet access, this
    definition appropriately focuses on the end user's experience,
    factoring in both the functional characteristics and speed of
    transmission associated with the service.

22. *Information Service.* We determine that wireless broadband Internet
    access service, whether offered using mobile, portable, or fixed
    technologies, is an "information service" under the Communications
    Act. This finding is consistent with the Commission's classification
    of broadband Internet access services provided over cable, wireline,
    and BPL networks, and the Supreme Court's *Brand X* decision.

23. Under the Act, a service is subject to different regulatory
    frameworks depending on whether it constitutes an "information
    service" or a "telecommunications service." The Act defines
    "information service" as

    the offering of a capability for generating, acquiring, storing,
    transforming, processing, retrieving, utilizing, or making available
    information via telecommunications, and includes electronic
    publishing, but does not include any use of any such capability for
    the management, control, or operation of a telecommunications system
    or the management of a telecommunications service.[^60]

24. The Act defines "telecommunications service" 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"[^61] and
    "telecommunications" 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."[^62]

25. In the *Cable Modem Declaratory Ruling,* the *Wireline Broadband
    Internet Access Services Order*, and the *BPL-Enabled Internet
    Access Services Order*, the Commission addressed the proper
    classification for broadband Internet access service provided over
    cable system facilities, wireline facilities, and BPL facilities,
    respectively.[^63] In each case, the Commission determined that the
    broadband Internet access service in question should be classified
    as an information service.[^64] The Commission determined that
    cable, wireline, and BPL providers offered broadband Internet access
    as a single, integrated service (*i.e.*, Internet access) that
    inextricably combined the transmission of data over cable or
    wireline networks with computer processing, information provision,
    and computer interactivity, enabling end users to run a variety of
    Internet applications such as email, newsgroups, and interaction
    with or hosting of web pages.[^65] These applications, the
    Commission held, "encompass the capability for 'generating,
    acquiring, storing, transforming, processing, retrieving, utilizing,
    or making available information via telecommunications,' and taken
    together constitute an information service as defined by the
    Act."[^66] In *Brand X*, the Supreme Court upheld the Commission's
    findings that broadband Internet access service offered via cable
    modem is an integrated information service, and that the
    transmission component of that service is not a telecommunications
    service.[^67]

26. In view of the statutory provisions, Commission precedent, and the
    *Brand X* decision, we find that wireless broadband Internet access
    service is similarly an "information service." Like cable modem
    service, wireline broadband Internet access service, and BPL-enabled
    Internet access service, wireless broadband Internet access service
    offers a single, integrated service to end users, Internet access,
    that inextricably combines the transmission of data with computer
    processing, information provision, and computer interactivity, for
    the purpose of enabling end users to run a variety of
    applications.[^68] These applications, identical to those provided
    by cable modem service, wireline broadband Internet access, or
    BPL-enabled Internet access, "taken together constitute an
    information service as defined by the Act." Accordingly, we find
    that wireless broadband Internet access service meets the statutory
    definition of an information service under the Act.

27. In addition, we find that classifying wireless broadband Internet
    access service as an information service furthers the goals of
    sections 7 and 230(b)(2) of the Communications Act, and section 706
    of the Telecommunications Act of 1996.[^69] As noted above, wireless
    broadband Internet access technologies continue to evolve at a rapid
    pace. Through this classification, we provide the regulatory
    certainty needed to help spur growth and deployment of these
    services. Particularly, the regulatory certainty we provide through
    this classification will encourage broadband deployment in rural and
    underserved areas, where wireless broadband may be the most
    efficient broadband option. Additionally, we believe that wireless
    broadband Internet access service can provide an important homeland
    security function by creating redundancy in our nation's
    communications infrastructure. As with the Commission's
    determination when classifying wireline broadband Internet access
    services, we similarly find that our actions in this Declaratory
    Ruling will not affect the government's implementation or
    enforcement of the Uniting and Strengthening America by Providing
    Appropriate Tools Required to Intercept or Obstruct Terrorism Act of
    2001 (USA Patriot Act),[^70] or the Commission's rules implementing
    the National Security Emergency Preparedness Telecommunications
    Service Priority System.[^71]

28. Having concluded that wireless broadband Internet access service is
    an information service, we also find that the service is
    jurisdictionally interstate.[^72]

## Classification of the Transmission Component of Wireless Broadband Internet Access Service as "Telecommunications" and not "Telecommunications Service"

29. We determine that the transmission component of wireless broadband
    Internet access service is properly classified as
    "telecommunications" and not "telecommunications service."[^73] That
    is, we find that the transmission component of wireless broadband
    Internet access service is telecommunications[^74] and the offering
    of this telecommunications transmission component as part of a
    functionally integrated, finished Internet access service offering
    is not "telecommunications service" under section 3 of the Act.

30. The Commission has already recognized that "\[a\]ll information
    services require the use of telecommunications to connect customers
    to the computers or other processors that are capable of generating,
    storing, or manipulating information."[^75] The Commission has also
    determined that the transmission of information may constitute
    "telecommunications," but that it is not necessarily a
    "telecommunications service."[^76] As stated above, the definition
    of a "\[t\]elecommunications service" requires that the
    telecommunications be "offer\[ed\] for a fee directly to the public,
    or to such classes of users as to be effectively available to the
    public, regardless of the facilities used."[^77] Thus, in the *Cable
    Modem Declaratory Ruling*, the Commission determined that the
    transmission component of cable modem service was
    "telecommunications" but not a "telecommunications service" because,
    as provided to the user, the transmission component was "part and
    parcel of cable modem service" and was not being offered as a
    stand-alone offering of transmission for a fee directly to the
    public, or to such classes of users as to be effectively available
    directly to the public.[^78] Similarly, in the *Wireline Broadband
    Internet Access Order*, the Commission found that the transmission
    capability of wireline broadband Internet access "is part and parcel
    of, and integral to, the Internet access service capabilities" and
    therefore that wireline broadband Internet access service does not
    include the provision of a telecommunications service to the end
    user.[^79] Finally, in the *BPL-Enabled Internet Access Services
    Order*, the Commission found that the transmission component
    underlying BPL-enabled Internet access service is not a separate
    "telecommunication service" because an "end user subscribing to
    BPL-enabled Internet access service expects to receive (and pay for)
    a finished, functionally integrated service that provides access to
    the Internet, rather than receive (and pay for) two distinct
    services -- Internet access service and a distinct transmission
    service."[^80]

31. We find that the transmission component used for wireless broadband
    Internet access is "telecommunications" because it provides
    "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."[^81] We conclude,
    consistent with the Commission's finding in the *Cable Modem
    Declaratory Ruling, Wireline Broadband Internet Access Services
    Order*, and *BPL-Enabled Internet Access Services Order*, and the
    Supreme Court's decision in *Brand X*, that the use of this
    telecommunications transmission component as part of a provider's
    offering of wireless broadband Internet access service to end users
    using its own transmission facilities is not a "telecommunications
    service" because it is part and parcel of the Internet access
    service's information service capabilities.[^82] Specifically, we
    find that an end user subscribing to wireless broadband Internet
    access service expects to receive (and pay for) a finished,
    functionally integrated service that provides access to the
    Internet, rather than receive (and pay for) two distinct services --
    Internet access service and a distinct transmission service.

32. We further determine that neither the Communications Act nor
    relevant precedent mandate that broadband transmission be a
    "telecommunications service" when provided to an ISP as a wholesale
    input for the ISP's own broadband Internet access service
    offering.[^83] Indeed, neither the Communications Act nor relevant
    precedent require a wireless broadband Internet access provider to
    offer the transmission component of wireless broadband Internet
    access service as a telecommunications service to anyone.[^84]
    However, the wireless broadband Internet access provider may choose
    to offer the transmission component as a telecommunications service.
    We note that the transmission component of wireless broadband
    Internet access service is a telecommunications service only if the
    entity that provides the transmission voluntarily undertakes to
    provide it indifferently on a common carrier basis.[^85]

33. Should the facility provider choose to offer the transmission
    component of wireless broadband Internet access as a
    telecommunications service, the regulatory regime appropriate to the
    nature of the telecommunications service will apply.[^86] For
    example, if a wireless broadband Internet access provider chooses to
    offer the telecommunications transmission component as a
    telecommunications service, then it is a common carrier service
    subject to Title II.[^87] In addition, a mobile wireless Internet
    access provider that chooses to offer the telecommunications
    transmission component as a telecommunications service may also be
    subject to the "commercial mobile service" provisions of the Act,
    depending on whether that transmission service falls within the
    definition of CMRS in the Act.[^88]

34. We also make clear that no aspect of the *Computer Inquiry* regime
    applies to the provision of wireless broadband Internet access
    service.[^89] In particular, as noted above, no provider of wireless
    broadband Internet access service has an obligation to provide the
    transmission component of that service as a common carrier service,
    regardless of whether the provider is otherwise a common
    carrier.[^90] We conclude that, for the reasons explained in the
    *Cable Modem Declaratory Ruling* in reference to the cable modem
    service, subjecting wireless broadband Internet access service
    providers to these obligations would disserve the goals of section
    706 of the Telecommunications Act of 1996.[^91]

## Continued Applicability of Title III Licensing Provisions

35. Our decision today to classify wireless broadband Internet access
    service as an information service does not affect the general
    applicability of the spectrum allocation and licensing provisions of
    Title III and the Commission's rules to this service. These
    provisions and rules continue to apply because the service is using
    radio spectrum.

36. Title III generally provides the Commission with authority to
    regulate "radio communications" and "transmission of energy by
    radio."[^92] Among other provisions, Title III gives the Commission
    the authority to adopt rules preventing interference and allows it
    to classify radio stations.[^93] It also establishes the basic
    licensing scheme for radio stations, allowing the Commission to
    grant, revoke, or modify licenses.[^94] Title III further allows the
    Commission to make such rules and regulations and prescribe such
    restrictions and conditions as may be necessary to carry out the
    provisions of the Act.[^95] Application of provisions governing
    access to and use of spectrum (and their corresponding Commission
    rules) is not affected by whether the service using the spectrum is
    classified as a telecommunications or information service under the
    Act. Accordingly, our decision today to classify wireless broadband
    Internet access services as information services does not affect the
    applicability of Title III provisions and corresponding Commission
    rules to these services. Further, nothing in this order should be
    construed as modifying any spectrum use authorizations and service
    rule obligations arising out of license conditions or rules
    governing unlicensed use of the spectrum.

## Applicability of the "Commercial Mobile Service" Provisions of Section 332 of the Act

37. Having determined that wireless broadband Internet access service,
    regardless of whether offered using mobile, portable, or fixed
    technologies, is an information service under the Act, we now
    address the applicability of the "commercial mobile service"
    provision of section 332 of the Act to this broadband service. As
    discussed below, we find that "mobile wireless broadband Internet
    access service"[^96] is not a "commercial mobile service" as that
    term is defined in the Act and as implemented in the Commission's
    rules.[^97]

38. Section 332 of Title III, enacted by Congress as part of the Omnibus
    Budget Reconciliation Act of 1993 (the Budget Act),[^98] provides a
    specific framework that applies to providers of "commercial mobile
    service."[^99] The section defines "commercial mobile service" to
    mean:

    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.[^100]

39. It distinguishes commercial mobile service from "private mobile
    service," which is defined as "any mobile service . . . that is not
    a \[commercial mobile service\] or the functional equivalent of a
    commercial mobile service."[^101] Section 332(c)(1)(A) requires that
    providers of commercial mobile service be treated as common carriers
    under Title II of the Act but also authorizes the Commission to
    forbear from applying most Title II provisions if it makes certain
    findings.[^102] The commercial mobile service provisions of the Act
    are implemented under section 20.3 of the Commission's rules, which
    employs the term "commercial mobile radio service" (CMRS).[^103]

40. Three years after adding section 332 to the Act, Congress passed the
    Telecommunications Act of 1996.[^104] Among the revisions to the Act
    were amendments to section 3 of the Act that defined the following
    terms: "telecommunications carriers" (section 3(44)),
    "telecommunications service" (section 3(46)), and "information
    service" (section 3(20)).[^105] In defining these terms, Congress
    noted that the definition of "telecommunications service" was
    intended to include commercial mobile service.[^106]

41. As discussed below, we find that mobile wireless broadband Internet
    access service is not a "commercial mobile radio service" as that
    term is defined in the Act and implemented in the Commission's
    rules. We find first that mobile wireless broadband Internet access
    service does not fit within the definition of "commercial mobile
    service" because it is not an "interconnected service" within the
    meaning of section 332 of the Act and the Commission's "commercial
    mobile radio service" rules. Even if this service were an
    "interconnected service" for purposes of section 332, we find for
    the reasons set out below that it would be unreasonable to classify
    mobile wireless broadband Internet access service as commercial
    mobile service because that would result in an internal
    contradiction within the statutory scheme. Concluding that mobile
    wireless broadband Internet access service, as an information
    service, should not be included in the CMRS definition or subject to
    Title II common carrier obligations applicable to telecommunications
    service providers is most consistent with Congressional intent to
    maintain a regime in which information service providers are not
    subject to Title II regulations as common carriers.

42. *Mobile Wireless Broadband Internet Access Service Is Not an
    "Interconnected Service" Under Section 332 and the Commission's
    Regulations.* We find first that mobile wireless broadband Internet
    access service does not meet the definition of "commercial mobile
    service" within the meaning of section 332 of the Act as implemented
    by the Commission's CMRS rules because such broadband service is not
    an "interconnected service," as defined in the Act and the
    Commission's rules.

43. Section 332(d)(2) states that "the term 'interconnected service'
    means service that is interconnected with the public switched
    network (as such terms are defined by regulation by the Commission)
    . . . ."[^107] Under the Commission's Part 20 CMRS rules,
    "interconnected service" is defined as "a service that is
    interconnected with the public switched network, or interconnected
    with the public switched network through an interconnected service
    provider, that gives subscribers the capability to communicate to or
    receive communication from all other users on the public switched
    network."[^108] This definition focuses on the service provided to
    end users[^109] and specifically does not include "any interface
    between a licensee\'s facilities and the public switched network
    exclusively for a licensee\'s internal control purposes."[^110] The
    term "public switched network" is defined under our CMRS rules to
    mean "\[a\]ny common carrier switched network, whether by wire or
    radio, including local exchange carriers, interexchange carriers,
    and mobile service providers, that use the North American Numbering
    Plan in connection with the provision of switched services."[^111]

44. In adopting the definitions of "interconnected service" and "public
    switched network" with regard to commercial mobile service provision
    of the Act, the Commission stated "that by using the phrase
    'interconnected service,' Congress intended that mobile services
    should be classified as commercial services if they make
    interconnected service broadly available through their use of the
    public switched network."[^112] Congress's purpose, the Commission
    concluded, was "to ensure that a mobile service that gives its
    customers the capability to communicate to or receive communication
    from other users of the public switched network should be treated as
    a common carriage offering . . . ."[^113] In addition, the
    Commission determined that "any switched common carrier service that
    is interconnected with the traditional local exchange or
    interexchange switched network will be defined as part of that
    network for purposes of our definition of 'commercial mobile radio
    services.'"[^114] The Commission also concluded that "use of the
    North American Numbering Plan by carriers providing or obtaining
    access to the public switched network is a key element in defining
    the network because participation in the North American Numbering
    Plan provides the participant with ubiquitous access to all other
    participants in the Plan." The Commission found that another
    important element is switching capability, which means "any common
    carrier switching capability."[^115]

45. Based on foregoing, we conclude that mobile wireless broadband
    Internet access service does not meet the definition of
    "interconnected service" under the Commission's rules implementing
    section 332 of the Act. Mobile wireless broadband Internet access
    services do not "give subscribers the capability to communicate to
    or receive communications from *all other users* on the public
    switched network."[^116] The definition of "interconnected service"
    applicable to commercial mobile service focuses on the service
    provided to the end users. Under this definition, "interconnected
    service" has to give "subscribers the capability to communicate to
    or receive communication from all other users on the public switched
    network."[^117] Mobile wireless broadband Internet access service in
    and of itself does not provide this capability to communicate with
    all users of the public switched network. For example, mobile
    wireless broadband Internet access services do not use the North
    American Numbering Plan to access the Internet, which limits
    subscribers' ability to communicate to or receive communications
    from *all* users in the public switched network.[^118] Instead,
    users of a mobile wireless broadband Internet access service need to
    rely on another service or application, such as certain voice over
    Internet Protocol (VoIP) services that rely in part on the
    underlying Internet access service, to make calls to, and receive
    calls from, "all other users on the public switched network."
    Therefore, mobile wireless broadband Internet access service itself
    is not an "interconnected service" as the Commission has defined the
    term in the context of section 332.[^119]

46. Of course, our conclusion that mobile wireless broadband Internet
    access service is not an "interconnected service" for purposes of
    section 332 does not decide whether other services or applications
    may be "interconnected service" under section 332 and its
    implementing regulations. For instance, we do not here address the
    question whether "interconnected VoIP" service is an "interconnected
    service" under section 332. Such "interconnected VoIP" services have
    been recognized as services separate from broadband Internet access
    service, and the Commission has imposed certain obligations on
    interconnected VoIP, such as Enhanced 911 (E911) obligations, that
    it has not imposed on broadband Internet access service.[^120]

47. Nor does our interpretation of section 332 of the Communications Act
    and its implementing regulations here alter either our decision in
    the *CALEA* proceeding to apply CALEA obligations to all wireless
    broadband Internet access providers, including mobile wireless
    providers, or our interpretations of the provisions of CALEA itself.
    As the Commission found, and the U.S. Court of Appeals for the D.C.
    Circuit affirmed, the purposes and intent of CALEA are strikingly
    different than those of the 1996 Telecommunications Act, which is
    embedded in the Communications Act. As the Court noted,
    "CALEA\--unlike the 1996 Act\--is a law-enforcement statute . . .
    (requiring telecommunications carriers to enable 'the government' to
    conduct electronic surveillance) . . . . The Communications Act (of
    which the Telecom Act is part), by contrast, was enacted '\[f\]or
    the purpose of regulating interstate and foreign commerce in
    communication by wire and radio' . . . . The Commission\'s
    interpretation of CALEA reasonably differs from its interpretation
    of the 1996 Act, given the differences between the two
    statutes."[^121] Thus, our interpretation of the separate statutory
    provisions in section 332 of the Communications Act, whose purposes
    closely track those of the Telecommunications Act of 1996 and the
    Communications Act generally, in no way affects our determination
    that mobile wireless broadband Internet access service providers are
    subject to the CALEA statute.[^122]

48. *Mobile Wireless Broadband Internet Access Service is Not a
    "Commercial Mobile Service" Even if It Were an "Interconnected
    Service" for Purposes of Section 332 and its Implementing
    Regulations.* If mobile wireless broadband Internet access service
    were an "interconnected service" for purposes of section 332, we
    find there to be ambiguity in the statutory framework. One possible
    interpretation of section 332, looking solely at its definitions, is
    that such service would qualify as a "commercial mobile service"
    while also being an "information service." We find, however, that
    such a reading results in an internal contradiction in the statutory
    framework, and that the alternate reading that mobile wireless
    broadband Internet access service is not a "commercial mobile
    service" avoids the contradiction and is a reading fully consistent
    with the purposes of section 332 and the Communications Act in
    general.

49. The contradiction in the statutory framework arising from
    classifying mobile wireless broadband Internet access service as
    both an information service and a commercial mobile service occurs
    in the very common situation where a service provider is providing
    not only mobile wireless broadband Internet access service, but also
    a separate service that is undoubtedly a CMRS service that is also a
    telecommunication service under the Act, such as traditional mobile
    voice service.

50. Under those circumstances, the service provider would qualify as a
    telecommunications carrier as a result of its provision of its
    traditional mobile voice service. The definition of
    "telecommunications carrier" in section 3 of the Act states "\[a\]
    telecommunications carrier shall be treated as a common carrier
    under this Act *only to the extent that it is engaged in providing
    telecommunications service.*"[^123] Accordingly, under Section 3,
    that service provider is to be treated as a common carrier for the
    telecommunications services it provides, but it cannot be treated as
    a common carrier with respect to other, non-telecommunications
    services it may offer, including information services. As discussed
    above, mobile wireless broadband Internet access service is an
    information service.

51. Yet, under this reading, the service provider's offering of a CMRS
    information service -- *i.e.,* its mobile wireless broadband
    Internet access service - would also mean that section 332 would
    apply; and the terms of section 332 expressly require that a service
    provider would be treated as a common carrier when it offers that
    "commercial mobile service."[^124] In short, under this
    interpretation of section 332, that section would require that the
    service provider be treated as a common carrier insofar as it
    provides mobile wireless broadband Internet access service, while
    section 3 clearly would prohibit the application of common carrier
    regulation of such a service provider's provision of that service.

52. These contradictory statutory directives demonstrate an ambiguity in
    the Act -- one that we conclude is best resolved by finding that
    mobile wireless broadband Internet access service, as an information
    service, is not included in the commercial mobile service
    definition. If we were to interpret section 332 to include this type
    of Internet access service within the CMRS definition, the
    above-described ambiguity could only be resolved by concluding that
    one of the two sections (section 3 or section 332) should trump the
    other. We do not discern any reasonable basis for giving more weight
    to one section than the other, however.

53. Moreover, construing the CMRS definition to include mobile wireless
    broadband Internet access service, as CMRS information service,
    could lead to absurd results. For example, we could give effect to
    section 3's express common carrier exemption of a telecommunication
    carrier's so-called CMRS information service -- and thereby override
    section 332's express mandate to treat CMRS providers as common
    carriers. Then, however, a company engaging solely in the provision
    of CMRS information services would not qualify for the section 3
    exemption (available only to telecommunications carriers) and
    therefore would be subject to common carrier regulation under
    section 332, while a telecommunications carrier who provided the
    exact same service in addition to its telecommunications services
    would escape such common carrier regulation of its information
    service under the section 3 exemption. Such disparate treatment
    appears to have no rational basis and would introduce competitive
    distortions into the marketplace. Nor could we avoid this result by
    exercising our forbearance authority under section 10 of the
    Communications Act. Although section 10 specifically requires the
    Commission to override Section 332's application of common carrier
    regulations to CMRS providers if it determines that a three-part
    test is satisfied,[^125] this mandate applies only to
    telecommunications carriers and telecommunications services. Thus,
    if a non-telecommunications provider of mobile wireless broadband
    Internet access service is deemed a CMRS provider, we would not be
    authorized by section 10 to forbear from applying any applicable
    common carrier regulations to that provider. And while section 332
    itself grants the Commission some authority to forbear from applying
    Title II common carrier requirements to CMRS providers (whether or
    not deemed telecommunications carriers), this statutory forbearance
    authority is limited. It does not extend to a number of significant
    Title II provisions (including sections 201, 202, and 208 of the
    Act).[^126]

54. By contrast, construing the CMRS definition to exclude mobile
    wireless broadband Internet access service avoids absurd results
    while resolving the statutory ambiguity in a manner consistent with
    the intent and goals of the Act. For one, the exclusion is
    consistent with and furthers the Act's overall intent to allow
    information services to develop free from common carrier
    regulations. A contrary approach would single out a significant
    segment of information service provider for such regulation and
    thereby work at cross purposes with Congress's intent to maintain a
    regime in which information service providers can develop without
    the impediments of common carrier regulation.[^127]

55. Second, our interpretation of the definition supports the
    Congressional goal of promoting broadband deployment and encouraging
    competition in the provision of broadband services, by ensuring
    regulatory parity among all broadband Internet access services -
    regardless of whether they are offered through wireline, cable, or
    wireless technology. Similarly, this approach also ensures
    consistent regulatory treatment among wireless broadband Internet
    access services using mobile, portable, or fixed technologies, both
    licensed and unlicensed. Classifying all wireless broadband Internet
    access services as non-CMRS information services, will result in a
    uniform, technology neutral regulatory scheme for the provision of
    all wireless Internet access services \-- regardless of whether
    providers are using mobile, portable, or fixed technologies, or a
    combination of those technologies. Without a consistent approach
    toward all Internet access providers (both within the wireless
    industry and across diverse technologies), and absent a showing that
    an application of common carrier regulation to only one type of
    Internet access provider will promote the public interest, the
    possibility of full and fair competition will be compromised.

56. In sum, our statutory interpretation of the scope of the CMRS
    definition eliminates any ambiguity or conflict between sections 332
    and 3 of the Communications Act, avoids any absurd or otherwise
    irrational results, furthers Congress's goal of encouraging the
    development of information services by ensuring that they remain
    free from common carrier regulation, and serves the Act's
    overarching goal of fostering competition by providing a level
    playing field in the market and removing unnecessary regulatory
    impediments. Accordingly, we conclude that wireless broadband
    Internet access service, as an information service, cannot also be a
    "commercial mobile service" under section 332 of the Communications
    Act.

## Applicability of Other Statutory Provisions

57. In light of our determination that wireless broadband Internet
    access service is an information service and not CMRS, we now
    address the applicability of certain statutory provisions to this
    information service. First, we reiterate our commitment to monitor
    the need to apply section 255(regarding access by persons with
    disabilities). Next, we address the applicability of sections
    224(regarding pole attachments), 332(c)(7)(local authority over
    zoning), and 251(interconnection obligations). Finally, we remind
    the providers of wireless broadband Internet access service that
    certain consumer protections obligations might apply.

### Access by Persons with Disabilities

58. We reiterate our commitment to effectuate the accessibility policy
    embodied in section 255 of the Act. We will continue to monitor the
    development of wireless broadband Internet access service and its
    effects on the policy goals of section 255.[^128]

59. Section 255(c) of the Act requires that "a provider of
    telecommunications service shall ensure that the service is
    accessible to and usable by individuals with disabilities, if
    readily achievable."[^129] Although section 255 expressly applies to
    telecommunications services and not information services, the
    Commission has used its ancillary jurisdiction under Title I to
    extend accessibility obligations to certain information services in
    the past, including the wireline broadband Internet access
    service.[^130] While still at the nascent stage, wireless broadband
    Internet access services are rapidly being developed and deployed.
    We will continue to monitor the development of wireless broadband
    Internet access service and its effects on the important policy
    goals of section 255.[^131] We reiterate our commitment to use our
    Title I and Title III authority, as necessary, to give full effect
    to the accessibility policy embodied in section 255.

### Pole Attachments and Local Authority over Zoning

60. *Pole Attachments.* We clarify that where a wireless service
    provider uses the same pole attachments to provide both
    telecommunications and wireless broadband Internet access services,
    section 224 would apply, consistent with the U.S. Supreme Court\'s
    decision in *National Cable and Telecom. Ass'n. v. Gulf Power
    Co.*[^132]

61. The Pole Attachment Act, codified in section 224 of the
    Communications Act, gives cable television systems and providers of
    telecommunications services the right to attach to utility poles of
    power and telephone companies at regulated rates.[^133] Section
    224(a)(4) defines "pole attachment" as "any attachment by a cable
    television system or provider of telecommunications service to a
    pole, duct, conduit, or right-of-way owned or controlled by a
    utility."[^134] "Utility" is defined under the statute as "any
    person who is a local exchange carrier or an electric, gas, water,
    steam, or other public utility, and who owns or controls poles,
    ducts, conduits, or rights-of-way used, in whole, or in part, for
    any wire telecommunications . . ."[^135]

62. We clarify that where a wireless service provider uses the same pole
    attachments to provide commingled services (*i.e.*, both
    telecommunications and wireless broadband Internet access services),
    section 224(e) would apply. We note that this determination is
    consistent with the U.S. Supreme Court\'s decision in *National
    Cable and Telecom. Ass'n. v. Gulf Power Co,*[^136] where it held
    that: a cable television system's pole attachments that provided
    commingled services, both high-speed Internet access service and
    cable television service, were "attachments" covered by the Pole
    Attachment Act codified in section 224(d) of the Communications Act;
    and wireless telecommunications providers' pole attachments of
    associated wireless equipment are covered under section 224(e) of
    the Communications Act.[^137] Although we do not reach the question
    of the applicability of section 224 when an entity is solely
    providing wireless broadband Internet access services, we note that
    that issue may be addressed in other pending Commission
    proceedings.[^138]

63. *Local Authority over Zoning.* We clarify that section 332(c)(7)(B)
    would continue to apply to wireless broadband Internet access
    service that is classified as an "information service" where a
    wireless service provider uses the same infrastructure to provide
    its "personal wireless services" and wireless broadband Internet
    access service.

64. Section 332(c)(7) preserves state and local authority over zoning
    and land use decisions for "personal wireless service facilities.
    "[^139] "Personal wireless services" is defined to mean commercial
    mobile services, unlicensed wireless services, and common carrier
    wireless exchange access services.[^140] Under 332(c)(7), state or
    local governments may not unreasonably discriminate among providers
    of functionally equivalent services and shall not prohibit or have
    the effect of prohibiting the provision of personal wireless
    services; may not regulate in a manner that prohibits or has the
    effect of prohibiting the provision of personal wireless services;
    must act on applications within a reasonable period of time; and
    must make any denial of an application in writing supported by
    substantial evidence in a written record.[^141] The statute also
    preempts local decisions premised directly or indirectly on the
    environmental effects of radio frequency (RF) emissions, assuming
    that the provider is in compliance with the Commission\'s RF
    rules.[^142]

65. Similar to application of section 224 to commingled services above,
    we find that section 332 (c)(7)(B) would continue to apply to
    wireless broadband Internet access service that is classified as an
    "information service" where a wireless service provider uses the
    same infrastructure to provide its "personal wireless services" and
    wireless broadband Internet access service.[^143] We find that
    classifying wireless broadband Internet access services as
    "information services" will not exclude these services from the
    section 332(c)(7) framework when a wireless provider's
    infrastructure is used to provide such services commingled with
    "personal wireless service." Commingling services does not change
    the fact that the facilities are being used for the provisioning of
    personal wireless services. Therefore, application of section
    332(c)(7) should remain unaffected. This interpretation is
    consistent with the public interest goals of this provision and
    ensures that wireless broadband Internet access service providers
    continue to use existing wireless infrastructure to rapidly deploy
    their services.[^144] This result is also consistent with the
    Commission's commitment to its national broadband policy goals to
    "promote the deployment of advanced telecommunications capability to
    all Americans in a reasonable and timely manner."[^145]

### Rights and Obligations related to Interconnection

66. We clarify that a carrier providing both CMRS and wireless broadband
    Internet access service has the same rights and obligations
    regarding interconnection under section 251 of the Act or section
    20.11 of the Commission's rules that it would have if it were only
    providing CMRS.[^146]

67. Section 251 of the Act and section 20.11 of the Commission's rules
    provide mobile radio service providers with a number of rights and
    obligations involving or related to interconnection.[^147] In the
    *Local Competition Order*, the Commission clarified that a carrier
    providing both a telecommunications service and an information
    service, "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."[^148] The Commission also ruled 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."[^149] The Commission further clarified in the
    *Wireline Broadband Internet Access Order* that its determination
    that wireline broadband Internet access was an information service
    and not a telecommunications service had "no effect whatsoever on
    the section 251 interconnection obligations of incumbent LECs or on
    competitive LECs' rights to obtain such interconnection."[^150]

68. Nothing in this order should affect the Commission's previous
    finding that a carrier providing both a telecommunications service
    and information service, "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."[^151] Further, consistent with the
    previous findings, we clarify that our classification of wireless
    broadband Internet access service as information service should not
    affect the application of section 20.11 to CMRS carriers and the
    application of section 251 of the Act to any wireless carriers
    providing both telecommunications service and information service.

### Consumer Protection Obligations

69. We remind wireless broadband Internet access service providers that
    any consumer protections obligations adopted in the *Consumer
    Protection in the Broadband Era* proceeding will extend to wireless
    broadband Internet access services.

70. In the *Consumer Protection in the Broadband Era NPRM,* the
    Commission emphasized consumer protection remains a priority and
    sought to develop a framework for consumer protection in the
    broadband age.[^152] Such a framework would be built on the
    Commission's Title I ancillary jurisdiction to ensure that consumer
    protection needs are met by all providers of broadband Internet
    access services regardless of the underlying technology, including
    providers of wireless broadband Internet access services.[^153]
    Accordingly, any consumer protection measures adopted in that
    proceeding will extend to wireless broadband Internet access
    services.

# ordering clauses

71. Accordingly, IT IS ORDERED, that pursuant to sections 1-4, 201(b)
    and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 151-54, 201(b), and 303(r), section 706 of the Telecommunications
    Act of 1996, 47 U.S.C. § 157, and section 1.2 of the Commission's
    rules, 47 C.F.R. § 1.2, the Declaratory Ruling IS ADOPTED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

***Re*: *Appropriate Regulatory Treatment for Broadband Access to the
Internet Over Wireless Networks, WT Docket No. 07-53***

In this Ruling, we find that wireless broadband Internet access service
is an information service, and that mobile wireless broadband Internet
access service is not a "commercial mobile service" under section 332 of
the Act.

Today's ruling highlights that the broadband market today is
increasingly characterized by multiple platforms that are vigorously
competing for customers. Wireless service is becoming increasingly
important as another platform to compete with cable and DSL as a
provider of broadband.

I have long believed that the Commission should focus on creating a
regulatory environment that promotes investment and competition by
minimizing economic regulation. In addition, the Commission must set the
rules of the road so that players can compete on a level playing field.
In other words, all providers of the same service should be treated in
the same manner regardless of the technology that they employ.

Today's classification eliminates unnecessary regulatory barriers for
wireless broadband Internet access service providers and will further
encourage investment and promote competition in the broadband market.
The Commission's action also clarifies any regulatory uncertainty and
establishes a consistent regulatory framework across broadband
platforms. We have already classified Internet access services provided
over cable plant, wireline facilities, and broadband over powerline as
information services. Now, wireless broadband Internet access service
will be treated the same way. This action is particularly timely in
light of the recently auctioned AWS-1 spectrum for wireless broadband
and our upcoming 700 MHz auction.

**CONCURRING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

** **

***Re:       Appropriate Regulatory Treatment for Broadband Access to
the Internet Over Wireless Networks, WT Docket No. 07-53***

 

            I concur in today's decision not because I like it.  Not
because I think it's the right thing to do.  But because in light of the
Commission's post-*Brand X* decisions, today's outcome has long been
inevitable.  I nevertheless want to reiterate my view that consigning
broadband services to an indeterminate Title I regulatory limbo is no
substitute for a genuine national broadband strategy.  It doesn't give
either businesses or consumers the kind of certainty that they are
entitled to.  And I simply cannot accept, when the stakes are so high,
that deferring difficult decisions---rather than actually making
them---constitutes a responsible regulatory framework.

 

            To be sure, we have clarified certain questions about E911
and CALEA and decided (unwisely in my view) that broadband providers
need not contribute to Universal Service.  But we still haven't
addressed important questions about such things as privacy, disabilities
access and the future of the Internet.  I hope that we will move
expeditiously to patch these alarming holes in the leaky roof we have
created.  Until we do so, I fear it will be the American public that
gets soaked. 

 

            Moreover, the multi-faceted nature of wireless services and
devices raises a whole host of novel questions that today's *Order* does
not even ***attempt*** to answer.  For instance: consider a cutting-edge
device like Apple's much-anticipated iPhone, which allows a user to
communicate via IP-based Wi-Fi technology as well as traditional CMRS
service.  Under our precedent, a consumer who uses the CMRS features of
the device to place a phone call can be secure in the knowledge that our
Title II CPNI rules require the carrier to protect his or her call and
location information.  But what about when that very same consumer uses
that very same device just moments later to send an email via Wi-Fi, to
call up a map of his or her location via a browser, or even to place a
VoIP call to another Internet user?  Because *those* services---which
the customer can be excused for thinking of as functionally identical to
the CMRS call---are now classified as Title I information services, the
carrier appears to be entirely free, under our present rules, to sell
off aspects of the customer's call or location information to the
highest bidder.  *Caveat emptor*, indeed!

 

            Finally, I would like to point out one additional---and more
promising---aspect of today's decision.  Back in 2005, the Commission
issued a policy statement adopting four principles applicable to
Internet access services, including that "consumers are entitled to
connect their choice of legal devices that do not harm the
network."[^154]  Now that IP-based wireless services are classified as
Title I information services, the inescapable logical implication of our
2005 decision is that the right to attach network devices---as well as
the three other principles of our policy statement---now applies to
wireless broadband services. 

 

            I believe the Commission accordingly has a clear and
pressing responsibility to open a rulemaking that will clarify how these
Title I principles should be applied in the wireless context.  I also
believe we should include questions about how and whether the
classification of CMRS services as Title II services incorporates the
principle of the seminal 1968 *Carterfone* decision.[^155]  I believe
that our answers to these questions---or our failure to answer
them---will have a direct impact on the pace of technological innovation
in the years ahead and on the extent to which consumers can take full
advantage of that innovation.    

 

            Indeed, as the Commission has already recognized in a host
of areas---such as *Carterfone*'s discussion of the PSTN, our 2005
Policy Statement's discussion of the Internet, and our rules on cable
set-top boxes---consumers generally benefit when they can select from
among a range of network attachments, including devices not chosen for
them by their service provider.  Indeed, without these decisions,
groundbreaking devices like the fax machine and dial-up modem---which
provided most of us with our first taste of the Internet---would never
have become so commonplace and so inexpensive so quickly.  Nor is it
likely that so many of us would have set up home networks and Wi-Fi
routers if service providers were free to charge us an extra fee for
doing so.

 

             In light of the enormous benefits that the Commission's
device attachment rules have enabled for so many of the networks
regulated by the Commission, I would have preferred that today's
reclassification item contain an NPRM teeing up these issues for
wireless networks.  I certainly hope that my colleagues will join me in
taking up these important questions soon.  There is so much potential in
wireless broadband---for consumers and entrepreneurs both---and our
challenge is to do everything we can to make sure the promise of these
pioneering technologies is redeemed.

**CONCURRING STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

***Re: Appropriate Regulatory Treatment for Broadband Access to the
Internet Over Wireless Networks, WT Docket No. 07-53***

In this Declaratory Ruling, the Commission clarifies the regulatory
framework for wireless broadband services. We determine that the
treatment should be consistent with the framework established for
broadband Internet access services provided over cable modem, wireline
broadband, and power line facilities. While I have reservations with
several aspects of this approach and the lack of public input into this
process, I generally support this Declaratory Ruling because it is
consistent with our broader efforts to treat similar services in a
similar manner across technology platforms.

Now that we have put these providers on similar footing, it is high time
to turn to protecting consumers in the broadband age. In fact, it is
frustrating that the Commission is able to generate yet another
reclassification item while the *Broadband Consumer Protection Notice*
that we adopted over 18 months ago, and that will form the centerpiece
of our consumer protection policies in this new framework, remains
pending. Instead, we are devoting resources to an item that was not even
specifically teed up by an interested party nor put out for public
comment. Of course, some might say it is a lot easier to generate an
item quickly when there is no record to consider. Perhaps the
handwriting was on the wall, with no nuance to consider. But looking at
the strained legal analysis in this item and the questions left
unanswered, it is hard to see how specific public input would not have
benefited this item.

The goal of this Declaratory Ruling is ostensibly to promote wireless
broadband deployment. It is hard to fathom how it is likely to make much
difference in the near term considering that no party bothered to ask us
to formally consider it. It is hard to see how clarifying the regulatory
classification will promote deployment when nobody was saying it was
ever an impediment.

Rather than just going through the motions, I have made promoting
wireless broadband deployment one of my key goals while at the
Commission. Fostering deployment is so important because we continue to
see a residential broadband market in which, according to FCC
statistics, telephone and cable operators control a nearly 98 percent
share, with many consumers lacking any meaningful choice of providers.
So, if we are to give our communities the communications tools to
compete on the global economic stage, it is critical that we take steps
to promote much-needed competition in the provision of broadband
services.

In many different proceedings, I have made wireless broadband deployment
a priority and have actively worked with industry to secure real
deployment. For example, I personally worked with Sprint and Nextel to
secure significant build-out commitments from the companies to launch
service in the 2.5 GHz band in association with their merger. The
companies provided a specific schedule of implementation milestones that
signal a commitment to deploy wireless broadband to at least 30 million
Americans across 20 markets, both large and small. The infusion of
capital into this market should stimulate product and service offerings
that ultimately will benefit both the commercial and educational
segments of the 2.5 GHz industry.

Similarly, I put a strong emphasis on promoting the availability of
affordable wireless broadband services through our review of the
AT&T-BellSouth merger. I worked closely with AT&T to secure the
company's commitment to launch service in the under-used 2.3 GHz band by
agreeing to a specific construction commitment over the next three and a
half years. In addition, the applicants committed to divest 2.5 GHz band
licenses and leases held in the southeast, which will lead to the
deployment of wireless broadband services in this market in direct
competition to the newly formed company.

I have also jumpstarted wireless broadband efforts in the 2.5 GHz band
by pushing the Commission to adopt more significant construction safe
harbors. I believe the 2.5 GHz band has so much potential, and we
already are seeing companies provide broadband services in dozen of
markets across the country. I also pushed for more meaningful safe
harbors in association with the construction extension afforded the 2.3
GHz industry. But I was unsuccessful in that effort because others would
not support a greater commitment to wireless broadband deployment in
conjunction with a three-year construction extension.

So it is against that backdrop that I review the item before me. At
bottom, the legal approach we take here may not be my preferred option
but I concur in today's decision for the same reasons that I concurred
in our previous reclassification decisions.[^156] As I made clear at the
time we adopted the *Wireline Broadband Internet Access Order*, the
reclassification approach raises some difficult questions about the
legal and policy framework for broadband services. My underlying concern
with the reclassification approach has always been that it takes the
Commission outside the ambit of those core legal protections and
grounding afforded by Congress. Yet, I have been willing to move forward
because we are acting in a manner consistent with the Supreme Court's
guidance in the *Brand X* decision, and this Declaratory Ruling, in
turn, will give us an opportunity to adopt a consistent approach for
cable, wireline, power line broadband, and now wireless broadband
services.

But even as we move forward with this decision today, it is worth
mentioning some of the important issues that we should make our first
priority -- chief among those is the protection of consumers. Indeed, my
support for the reclassification approach has been conditioned on the
Commission's decision to use its Title I authority to address important
consumer protection and other concerns that remain relevant no matter
how we classify broadband. I premised my support for the *Wireline
Broadband Internet Access Order* on our decision to adopt a concurrent
and important *Broadband Consumer Protection Notice* that sought comment
on how we can ensure that we continue to meet our consumer protection
obligations in the Act. It has now been 18 months since we opened that
inquiry, so it is more important than ever that we make this proceeding
a top priority.

Consumers must be at the top of our list, not the bottom, as we move
into the broadband era. Our experience with the widespread and
unauthorized proliferation of consumer telephone call records has been a
sharp reminder that this Commission has an obligation to ensure that
consumers' privacy expectations are met. But that privacy concern is not
limited to the narrowband world. Consumers don't care whether their
sensitive information is transferred by copper wire, fiber optic cable,
a power line connection, or a wireless broadband link. They merely want
us to implement and enforce the legal protections afforded by Congress.

We also need to advance the discussion of other sensitive issues, like
our Truth-in-Billing rules, access for persons with disabilities, and
the preservation and advancement of universal service. Universal service
is a particularly critical because the Commission has a statutory
obligation to ensure the sound footing of our federal programs that
ensure access for school, libraries, low income consumers, and Rural
America. This item also affects the jurisdictional classification of
wireless broadband services without exploring the implications for
consumer protection or universal service.

Finally, I am troubled with a couple of specific aspects in our
Declaratory Ruling. One suggested reason for this decision is that it
will provide regulatory certainty to wireless broadband Internet service
providers. But we must be careful in drawing such a bright line between
wireless broadband services and commercial mobile services and the
regulatory protections that come with CMRS status. Those protections can
be important for many small wireless providers, so we must be careful
not to violate the tenet of 'First, Do No Harm' in drawing such a firm
distinction. Moreover, to get to that distinction, the Commission
engages in some legal gymnastics, particularly the conclusion that an
interconnected mobile wireless broadband Internet access service should
not be considered a commercial mobile service. In our bid to provide
regulatory certainty, we must be careful not to leave providers to rely
on such a tenuous legal framework.

For all these reasons, I concur in this Order.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

***Re: Appropriate Regulatory Treatment for Broadband Access to the
Internet Over Wireless Networks, WT Docket No. 07-53***

Today, we continue down the path of deregulation as we move forward to
ensure that the benefits of the new Digital Age accrue to all Americans.
Specifically, we eliminate some of the regulatory requirements and
uncertainties regarding wireless broadband services by classifying it as
an "information service." The broadband Internet access market today is
characterized by multiple platforms that are vigorously competing for
customers. In prior proceedings, the Commission has classified cable,
wireline, and BPL-enabled Internet access as information services. I am
pleased that we do so in a technology-neutral manner that provides
wireless broadband Internet access services a level playing field with
other Internet access services.

**STATEMENT OF**

**COMMISSIONER ROBERT M. McDOWELL**

***Re: Appropriate Regulatory Treatment for Broadband Access to the
Internet Over Wireless Networks, WT Docket No. 07-53***

Since coming to the Commission, I have advocated for the creation of
regulatory parity when possible. With respect to video franchising, for
instance, I pressed for a follow up, fast-track rulemaking to quickly
build a record on the possibility of extending the de-regulatory
benefits set forth in our recently released order to all video
providers, be they incumbent cable providers or over-builders. And, I am
pleased that we will release that order no later than September. All
market players deserve the certainty and regulatory even-handedness
necessary to spark investment, speed competition, empower consumers, and
make America a stronger player in the global economy.

Today's action to classify wireless broadband Internet access service as
an information service creates regulatory parity. Our determination,
which the Commission has previously taken for Internet access over cable
modem, wireline and power line facilities, will maximize innovation and
consumer benefits by ensuring that the market-driven framework
established by Congress is fully realized as wireless services continue
to flourish and evolve. This year in particular the Commission is in an
excellent position to promote the dissemination of wireless licenses
among a wide variety of applicants, whether licensed or unlicensed, and
therefore I believe our action is timely. I am excited about our work to
prepare for the forthcoming 700 MHz auction, as well as future
deployment in the TV "white spaces," because I am hopeful that the
competitive opportunities presented by these proceedings, along with the
certainty we create with today's ruling, will broaden the ability for
entities seeking to enter the global wireless marketplace.

With respect to the substance of our action today, we first remind
providers of wireless broadband Internet access services that any
consumer protection obligations adopted in other related proceedings are
extended to them. We also emphasize that today's declaratory ruling does
not affect application of the spectrum allocation and licensing
provisions of Title III, the associated Commission rules, and
corresponding protections. In this regard, we clarify the following:

-   First, where a wireless service provider uses the same pole
    attachments to provide both telecommunications and wireless
    broadband Internet access services, Section 224 of the Act applies;

-   Second, local authority over zoning continues to apply where a
    wireless service provider uses the same infrastructure to provide
    "personal wireless services" and wireless broadband Internet access
    service, as set forth in Section 332(c)(7) of the Act; and

-   Third, a carrier providing both CMRS and wireless broadband Internet
    access service has the same rights and obligations regarding
    interconnection under Section 251 of the Act (or section 20.11 of
    the Commission's rules) that it would have if it were only providing
    CMRS.

Finally, we reiterate the Commission's commitment to enforce the
accessibility policy embodied in Section 255 of the Act (regarding
persons with disabilities). All Americans, regardless of physical
ability, should be able to benefit from competitive broadband Internet
service offerings.

In sum, effective personal telecommunications should deliver reliable,
ever-increasing bandwidth to individuals at ever-decreasing cost. Each
step the Commission takes to foster choice for all kinds of consumers
\-- residential, businesses, governments and public safety agencies \--
moves us closer to ubiquitous, multi-media broadband availability. With
today's action to eliminate potential barriers and reduce the
uncertainty that may hinder competitors from constructing new delivery
platforms \-- and owners of existing platforms to upgrade their
facilities \-- the Commission is enhancing the opportunity for greater
competition among, and within, various broadband platforms.

I thank the Chairman for his leadership on this endeavor, and I extend
my thanks and congratulations to the Bureau for their hard work.

[^1]: 47 U.S.C. §§ 151 et seq. We note that this order addresses
    terrestrial wireless broadband and does not address satellite
    broadband services.

[^2]: *See* 47 U.S.C. § 332(d)(1).

[^3]: Commission rule 1.2 provides the Commission with the authority to
    issue declaratory rulings to remove an uncertainty. *See* 47 C.F.R.
    § 1.2; *see also* 5 U.S.C. § 554(e) (stating that an agency, "in its
    sound discretion, may issue a declaratory order to . . . remove
    uncertainty.").

[^4]: Inquiry Concerning High-Speed Access to the Internet Over Cable
    and Other Facilities; Internet Over Cable Declaratory Ruling;
    Appropriate Regulatory Treatment for Broadband Access to the
    Internet Over Cable Facilities, *Declaratory Ruling and Notice of
    Proposed Rulemaking*, 17 FCC Rcd 4798, 4801, para. 4 (2002) (*Cable
    Modem Declaratory Ruling*), *aff'd*, *Nat'l Cable & Telecomms. Ass'n
    v. Brand X Internet Servs.*, 125 S. Ct. 2688 (2005) (*NCTA v. Brand
    X*).

[^5]: Appropriate Framework for Broadband Access to the Internet over
    Wireline Facilities; Universal Service Obligations of Broadband
    Providers; Review of Regulatory Requirements for Incumbent LEC
    Broadband Telecommunications Services; Computer III Further Remand
    Proceedings: Bell Operating Company Provision of Enhanced Services;
    1998 Biennial Regulatory Review -- Review of Computer III and ONA
    Safeguards and Requirements; Conditional Petition of the Verizon
    Telephone Companies for Forbearance Under 47 U.S.C. § 160(c) with
    Regard to Broadband Services Provided via Fiber to the Premises;
    Petition of the Verizon Telephone Companies for Declaratory Ruling
    or, Alternatively, for Interim Waiver with Regard to Broadband
    Services Provided via Fiber to the Premises; Consumer Protection in
    the Broadband Era, *Report and Order and Notice of Proposed
    Rulemaking*, 20 FCC Rcd 14853, 14855, para. 1 (2005) (respectively
    *Wireline Broadband Internet Access Services Order* and *Consumer
    Protection in the Broadband Era NPRM*), *petitions for review
    pending*, *Time Warner Telecomms. v. FCC*, No. 05-4769 (and
    consolidated cases) (3rd Cir. filed Oct. 26, 2005).

[^6]: In the Matter of United Power Line Council's Petition for
    Declaratory Ruling Regarding the Classification of Broadband over
    Power Line Internet Access Service as an Information Service, WC
    Docket No. 06-10, *Memorandum Opinion and Order*, 21 FCC Rcd 13281
    (2006) (*BPL-Enabled Internet Access Services Order*).

[^7]: *See* 47 U.S.C. § 157.

[^8]: *See Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14862, para. 11 n.30 (stating that while the Commission was
    not addressing classification issues of other non-wireline broadband
    Internet access services in the *Wireline Broadband Internet Access
    Services Order*, it will act consistent with the analysis and
    conclusions reached therein).

[^9]: *See* Title III - Provisions Relating to Radio, 47 U.S.C. §§ 301
    et seq. The term "radio communication" or "communication by radio"
    means the transmission by radio of writing, signs, signals,
    pictures, and sounds of all kinds, including all instrumentalities,
    facilities, apparatus, and services (among other things, the
    receipt, forwarding, and delivery of communications) incidental to
    such transmission." 47 U.S.C. § 153 (33).

[^10]: 47 U.S.C. § 303(r).

[^11]: *See* 47 U.S.C. § 153 (27) (defining "mobile service").

[^12]: "Commercial mobile service" is defined to mean "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). *See* *infra* Section
    III.D. for further discussion of the regulatory requirements
    applicable to CMRS.

[^13]: *See Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4802, para.
    7.

[^14]: *Id.*, 17 FCC Rcd at 4822, para. 38.

[^15]: *Id.*, 17 FCC Rcd at 4825-26, paras. 43-46 (finding that the
    *Computer II* obligations have only been applied to traditional
    wireline services and facilities, which the Commission has
    explicitly limited to services provided over the infrastructure of
    traditional telephone networks, and declining to extend such
    obligations to information services provided over cable facilities).

[^16]: *See NCTA v. Brand X*, 125 S. Ct. at 2695, 2702-10.

[^17]: *See Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14853.

[^18]: *Id.*, 20 FCC Rcd at 14855, para. 1.

[^19]: *Id.*, 20 FCC Rcd at 14863, para. 14 (quoting 47 U.S.C.
    § 153(20)).

[^20]: *Id.*, 20 FCC Rcd at 14909-10, para. 103.

[^21]: *Id.*, 20 FCC Rcd at 14909-11, para. 104.

[^22]: *Id.*, 20 FCC Rcd at 14856, para. 3.

[^23]: *Id.*, 20 FCC Rcd at 14857, 14872-98, paras. 4, 32-85.

[^24]: *BPL-Enabled Internet Access Services Order*, 21 FCC Rcd at
    13286-87, para. 9.

[^25]: *Id*. 21 FCC Rcd at 13288, para. 12.

[^26]: *Id*. 21 FCC Rcd at 13281-82, para. 2.

[^27]: *See* IP-Enabled Services, WC Docket No. 04-36, *Notice of
    Proposed Rulemaking*, 19 FCC Rcd 4863, 4908 (2004) (*IP-enabled
    Services NPRM*).

[^28]: CTIA Comments at ii; Virgin Mobile Comments at 4.

[^29]: *See* Wireless Broadband Access Task Force Report, GN Docket No.
    04-163, at 66-73 (Feb. 2005) (*WBATF Report*) *available at*
    <http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-257247A1.doc>
    We note that this is not a Commission report, but a staff report.

[^30]: *See, e.g.*, Cingular Wireless & BellSouth Comments at 10; CTIA
    Comments at 16; Microsoft Comments at 8-9; T-Mobile Reply Comments
    at 6.

[^31]: Cingular Wireless & BellSouth Comments at 6-7; CTIA Comments at
    15; Cisco Reply Comments at 7.

[^32]: Cingular Wireless & BellSouth Comments at 9-10; CTIA Comments at
    15.

[^33]: Cingular Wireless & BellSouth Comments at 6-10; Cisco Reply
    Comments 3-6 (noting that certain deregulatory features of section
    332(c) apply to CMRS services, but not fixed services, which also
    should benefit from a deregulatory approach).

[^34]: NextG Networks Comments at 15-17 (noting that section 332(c)(7)
    has assisted in the expeditious deployment of wireless broadband
    infrastructure and services).

[^35]: *Consumer Protection in the Broadband Era NPRM,* 20 FCC Rcd at
    14929.

[^36]: Cingular Wireless Comments at 7-11.

[^37]: *Id.*

[^38]: *Id.* at 12-13.

[^39]: *Id.* at ii. Cingular noted that "the Commission must recognize
    the unique nature of CMRS, which has long involved the joint
    provision of telecommunications and information services." *Id*. at
    12-13.

[^40]: CTIA Comments at 8-10 (asserting that the Commission should
    continue to promote the competitive market for Internet services by
    developing a deregulatory national framework for broadband Internet
    access services).

[^41]: *Id.* at 8-9. As an example, CTIA noted that a consumer could use
    a mobile handset with CMRS voice capability, along with Wi-Fi
    technology, that could work seamlessly between the consumer's
    cellular or PCS service and VoIP service provided over a wireless
    router and a wireline broadband connection in the home. It proposed
    regulating such a converged service on the basis of the least
    regulated technology.

[^42]: *See* Section III.A., *infra* (defining "wireless broadband
    Internet access service" and explaining that the term "high speed"
    means infrastructure capable of delivering a speed in excess of 200
    kbps in at least one direction).

[^43]: For more information on wireless broadband data services, *see*
    Implementation of Section 6002(b) of the Omnibus Budget
    Reconciliation Act of 1993, Annual Report and Analysis of
    Competitive Market Conditions with Respect to Commercial Mobile
    Services, *Eleventh Report*, 21 FCC Rcd 10947 (2006).

[^44]: Mobile broadband services typically use smaller devices, feature
    seamless handoff in the network, and can be used at while in motion
    at a variety of locations, while portable broadband services
    generally use larger devices, such as laptops, and offer more
    limited mobility.

[^45]: We note that the maximum speeds for these technologies are
    higher. For example, CDMA2000 Revision A 1xEV-DO can have a downlink
    speed up to 3.09 Mbps. HSDPA can have a downlink speed of 14.4 Mbps.

[^46]: *See, e.g.,* Cingular Wireless, *Media and Entertainment*,
    www.cingular.com (last visited January 29, 2007); Sprint, *Sprint
    Mobile Broadband Solutions on the Power Vision Network,*
    www.sprint.com (last visited January 29, 2007).

[^47]: Currently these services are being provided using spectrum in the
    WCS and BRS/EBS bands. *See*, note 49, *infra*.

[^48]: The IEEE 802.16 standard, first developed in 2001 for fixed
    wireless systems (e.g., backhaul) operating in the 11-16 GHz
    frequency range of licensed "upper" bands, continues to evolve. In
    2003, IEEE 802.16(a) -- commonly referred to as WiMax -- was
    developed for operations in lower frequencies in the 2-11 GHz range,
    including licensed bands as well as bands that permit use of
    unlicensed wireless devices. More recently, the IEEE 802.16(a)
    standard has been extended to include 802.16(d), which is also for
    fixed wireless broadband applications. *See* Richard Shim, WiMax in
    the Wings, CNet News.Com, June 25, 2004, available at
    http://news/zdnet.com/2100-9584_22-5247984.html.

[^49]: Clearwire, for example, has launched wireless broadband service
    in 29 U.S. cities using Orthogonal Frequency Division Multiplexing
    (OFDM) and Time Division Duplex (TDD) technology, and spectrum in
    the 2.5 GHz BRS/EBS band. *See* Clearwire Corporation, SEC Form S-1,
    at 53, filed May 11, 2006. BellSouth currently offers a
    non-line-of-sight, portable wireless broadband service using OFDM
    technology in five southern cities that allows wireless high-speed
    Internet access at speeds ranging from 384 kbps to 1.5 Mbps.
    BellSouth, *Wireless Broadband Service - Products*,
    http://www.wirelessbb.bellsouth.net/sales/asp/wbb_Products.asp (last
    visited January 29, 2007)*.*

[^50]: *See*, *WBATF Report* at 31-32; *see also*, Wireless Internet
    Service Providers Association (WISPA), Part 15.org, and ISP-Market,
    *Broadband Wireless Access 2002: Service Provider Profiles, Market
    Drivers and Spending Projections*, ISP-Market LLC Industry Report
    (2002).

[^51]: These hot spots usually function as an extension of another
    broadband Internet access network end point (*e.g.*, wireline
    broadband Internet access or cable modem Internet access end point).

[^52]: In the past year, mobile carriers continued to extend their Wi-Fi
    coverage by entering into agreements with other carriers. *See,
    e.g.*, T-Mobile, *T-Mobile Hotspot U.S. Location Map*,
    http://locations.hotspot.t-mobile.com (last visited January 29,
    2007) (T-Mobile claims it has 8,283 hotspots where its customers can
    get connectivity).

[^53]: In addition, some wireless carriers are providing broadcast-like
    mobile video content. For example, via MobiTV, Sprint and Cingular
    provide streaming of existing cable channels over their 1xRTT and
    GPRS/EDGE networks, respectively. Verizon Wireless, via VCAST, plans
    to provide streaming clips over their 1x EV-DO. Both Qualcomm and
    Crown Castle are planning Multicast video using MediaFLO and DVB-H,
    respectively. *See, e.g.,* Jefferson Graham, *TV on Cellphones?
    Funny but Profitable*, [USA Today]{.smallcaps}, Sept. 27, 2005;
    Verizon, *On Demand In the Palm of Your Hand: Verizon Wireless
    Launches "VCast" -- Nation's First and Only Consumer 3G Multimedia
    Service*, Jan. 7, 2005, *available at*
    http://news.vzw.com/news/2005/01/pr2005-01-07.html.

[^54]: As of June 30, 2006, satellite and wireless (both fixed and
    mobile) and powerline constituted 18.4 percent of high-speed lines,
    compared to 44.1% for cable, 34.9% for wireline ADSL, 1.5% for other
    wireline, and 1.1% for fiber. With regard to advanced services,
    satellite, wireless, and powerline constituted a far lower
    percentage -- 4.5%, compared to 55.9% for cable, 36.3% for wireline
    ADSL, 1.9% for other wireline, and 1.4% for fiber. *See* "High Speed
    Services for Internet Access: Status as of June 30, 2006," Report
    from the Industry Analysis and Technology Division, Wireline
    Competition Bureau, (rel. Jan. 2007). The mobile wireless subscriber
    percentages include some mobile telephone subscribers whose handset
    is enabled to operate on a high-speed (e.g., EV-DO or WCDMA/HSPDA)
    wireless network but who do not subscribe to mobile wireless
    high-speed Internet access service on a month-to-month or longer
    term basis.

[^55]: This proceeding is limited to broadband Internet access services
    and does not implicate narrowband data services (*e.g.*, one-way
    paging). For purposes of this proceeding, we define the line between
    broadband and narrowband consistent with the Commission's definition
    in other contexts (*i.e.*, services with over 200 kbps capability in
    at least one direction). *See e.g*., *Wireline Broadband Internet
    Access Services Order*, 20 FCC Rcd at 14860 n.15; In the Matter of
    Inquiry Concerning the Deployment of Advanced Telecommunications
    Capability to All Americans in a Reasonable and Timely Fashion, and
    Possible Steps to Accelerate Such Deployment Pursuant to Section 706
    of the Telecommunications Act of 1996, CC Docket No. 98-146, *Second
    Report*, 15 FCC Rcd 20913, 20919-20 (2000) (*Second 706 Report*)
    (defining the term "high speed" to mean infrastructure capable of
    delivering a speed in excess of 200 kbps in at least one direction).
    Although this definition remains in effect today, the Commission may
    examine and modify it for future purposes. *Cf. Wireline Broadband
    Internet Access Services Order*, 20 FCC Rcd at 14860 n.15.

[^56]: *See* *Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4799;
    *Wireless Broadband Internet Access Services Order*, 20 FCC Rcd at
    14860.

[^57]: *NCTA v. Brand X*, 125 S. Ct. at 2703-05.

[^58]: *See* *Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4819. *See
    Second 706 Report,* 15 FCC Rcd at 20919-20 (defining the term "high
    speed" to mean infrastructure capable of delivering a speed in
    excess of 200 kbps in at least one direction).

[^59]: *Wireless Broadband Internet Access Services Order*, 20 FCC Rcd
    at 14860, para. 9.

[^60]: 47 U.S.C. § 153(20).

[^61]: 47 U.S.C. § 153(46).

[^62]: 47 U.S.C. § 153(43).

[^63]: *See Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4818-24,
    paras. 31-41; *Wireline Broadband Internet Access Services Order*,
    20 FCC Rcd at 14862-65, paras. 12-17; *BPL-Enabled Internet Access
    Services Order*, 21 FCC Rcd at 13285-90, paras. 17-15.

[^64]: *See Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4822, para
    38; *Wireline Broadband Internet Access Services Order*, 20 FCC Rcd
    at 14862, para. 12; *BPL-Enabled Internet Access Services Order*, 21
    FCC Rcd at 13285, para. 8.

[^65]: *See* *Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4822, para.
    38; *Wireline Broadband Internet Access Services Order*, 20 FCC Rcd
    at 14863, para. 14; *BPL-Enabled Internet Access Services Order*, 21
    FCC Rcd at 13285-87, para. 9. *See also NCTA v. Brand X,* 125 S. Ct.
    at 2704 (stating that the key question in classifying offerings with
    both telecommunications and information service capabilities is
    whether the telecommunications transmission capability is
    "sufficiently integrated" with the information service component "to
    make it reasonable to describe the two as a single, integrated
    offering").

[^66]: *See* *Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14863-64, para. 14.

[^67]: *NCTA v. Brand X*, 125 S. Ct. at 2703-10.

[^68]: *See id.* at 2704-05 ("The question, then, is whether the
    transmission component of cable modem service is sufficiently
    integrated with the finished service to make it reasonable to
    describe the two as a single, integrated offering. We think that
    they are sufficiently integrated. . . .") (citation omitted).

[^69]: *See* 47 U.S.C. § 157 (directing that the Commission shall
    encourage the deployment of advanced telecommunications capability
    to all Americans); 47 U.S.C. § 230(b)(2) (stating that it is the
    policy of the United States "to preserve the vibrant and competitive
    free market that presently exists for the Internet"); and § 706,
    Pub. L. 104-104, Title VII, Feb. 8, 1996, 110 Stat. 153, reproduced
    in the notes under 47 U.S.C. § 157.

[^70]: Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified in scattered
    sections of 18 U.S.C., 47 U.S.C., and 50 U.S.C.).

[^71]: 47 C.F.R. Part 64, App. A. *See* *Wireline Broadband Internet
    Access Services Order*, 20 FCC Rcd at 14917-18, paras. 115-18. We
    also note that because we classify wireless broadband Internet
    access service as an information service, section 222 has no bearing
    on the obligation of providers of that service to make reports of
    suspected child pornography to the CyberTipLine pursuant to 42
    U.S.C. § 13032. *See* 47 U.S.C. § 222.

[^72]: *See e.g., Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4832,
    para. 59 (using the end-to-end analysis to determine that cable
    modem Internet access service is jurisdictionally interstate);
    *Wireline Broadband Internet Access Services Order*, 20 FCC Rcd at
    14853; *BPL-Enabled Internet Access Services Order* 21 FCC Rcd at
    13288, para. 11; *see also* GTE Tel. Operating Cos., *Memorandum
    Opinion and Order*, 13 FCC Rcd 22466 (1998) (finding GTE's ADSL
    service to be properly tariffed as an interstate service), *recon.
    denied*, 17 FCC Rcd 27409 (1999).

[^73]: For purposes of this proceeding, we define the "transmission
    component" of wireless broadband Internet access service 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, over
    facilities-based wireless communications systems.

[^74]: As noted above, the Act's definition of "information service"
    includes a transmission / telecommunications component. The Act
    defines "information service" as "the offering of a capability for
    generating, acquiring, storing, transforming, processing,
    retrieving, utilizing, or making available information (continued
    \...) (Continued from previous page) *via telecommunications*, and
    includes electronic publishing, but does not include any use of any
    such capability for the management, control, or operation of a
    telecommunications system or the management of a telecommunications
    service." 47 U.S.C. § 153(20) (emphasis added). *See also* 47 U.S.C.
    § 153(43) (defining "telecommunications" 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").

[^75]: *See* Implementation of the Non-Accounting Safeguards of Section
    271 and 272 of the Communications Act of 1934, as amended, *Order on
    Remand*, 16 FCC Rcd 9751, 9770, para. 36 (2001) (*Non-Accounting
    Safeguards Remand*).

[^76]: *See* Federal-State Joint Board on Universal Service, *Report and
    Order*, 12 FCC Rcd 8776, 9179-80, paras. 788-90 (1997) (finding that
    information services are not inherently telecommunications services
    simply because they are offered via telecommunications); *see also
    Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4823, para. 40.

[^77]: 47 U.S.C. § 153(46).

[^78]: *See* *Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4823,
    paras. 39-40.

[^79]: *Wireline Broadband Internet Access Services Order*, 20 FCC Rcd
    at 14910-11, para. 104.

[^80]: *BPL-Enabled Internet Access Services Order,* 21 FCC Rcd at
    13289, para. 14.

[^81]: 47 U.S.C. § 153(43).

[^82]: *See NCTA v. Brand X*, 125 S. Ct. at 2705 ("transmission is a
    necessary component of Internet access"); *Wireline Broadband
    Internet Access Services Order*, 20 FCC Rcd at 14910-11, para. 104
    (finding that the use of the transmission component as part and
    parcel of a facilities-based provider's offering to end users of
    wireline broadband Internet access service using its own
    transmission facilities is "telecommunications" and not a
    "telecommunications service").

[^83]: *See NCTA v. Brand X*, 125 S. Ct. at 2708 ("The Act's definition
    of 'telecommunications service' says nothing about imposing more
    stringent regulatory duties on facilities-based information-service
    providers").

[^84]: *Cf.* *Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14909, para. 103 (finding that nothing compels provider of
    *wireline* broadband Internet access to offer transmission component
    as a telecommunications service to anyone).

[^85]: *Id*., 20 FCC Rcd at 14910, para. 103. *See also*, Time Warner
    Cable Request for Declaratory Ruling that Competitive Local Exchange
    Carriers May Obtain Interconnection Under Section 251 of the
    Communications Act of 1934, as Amended, to Provide Wholesale
    Telecommunications Service to VoIP Providers, WC Docket No. 06-55,
    *Memorandum Opinion and Order*, DA 07-709, para. 11 (rel. March 1,
    2007) ("It is clear under the Commission's precedent that the
    definition of 'telecommunications service' is not limited to retail
    services, but also includes wholesale services when offered on a
    common carrier basis.").

[^86]: We note that to be a "telecommunications service," the offering
    in question must also, of course, satisfy the definition of
    "telecommunications." Thus, for example, the leasing of excess
    capacity on a wireless network has been found to be
    telecommunications and, if offered on a common carrier basis, a
    "telecommunications service." *See* Implementation of the Local
    Competition Provisions of the Telecommunications Act of 1996, CC
    Docket No. 96-98, *First Report and Order*, 11 FCC Rcd 15499, 15990,
    para. 994 (1996) (*Local Competition Order*). By comparison, the
    Commission found that satellite providers that merely leased bare
    "transponder capacity" do not provide "telecommunications" because
    they do not transmit information when they lease bare transponder
    capacity. *Cf.* Federal-State Joint Board on Universal Service,
    Access Charge Reform, Price Cap Performance Review for Local
    Exchange Carriers, Transport Rate Structure and Pricing, End User
    Common Line Charge, CC Docket Nos. 96-45, 96-262, 94-1, 91-213, and
    95-72, *Fourth Order on Reconsideration in CC Docket No. 96-45,
    Report and Order in CC Docket Nos. 96-45, 96-262, 94-1, 91-213,
    95-72*, 13 FCC Rcd 5318, 5479 (1997).

[^87]: *See Wireline Broadband Internet Access Services Order*, 20 FCC
    Rcd at 14909-10, para. 103 (finding that a provider of the
    transmission component for wireline broadband Internet access
    service may offer the transmission on a common carrier basis if it
    chooses to, thus subjecting it to Title II common carrier
    regulations).

[^88]: *See e.g*., 47 U.S.C. §§ 332(c)(1). *See also*, 47 C.F.R. Part
    20. *See* further discussion of wireless broadband Internet access
    service as it relates to CMRS in Section III.D., *infra*.

[^89]: *See NCTA v. Brand X*, 125 S. Ct. at 2708 ("We think it
    improbable that the Communications Act unambiguously freezes in time
    the *Computer II* treatment of facilities-based information-service
    providers").

[^90]: *See Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4825, para.
    43 & n.169 (finding that the *Computer II* obligations have only
    been applied to traditional wireline services and facilities, which
    the Commission has explicitly limited to services provided over the
    infrastructure of traditional telephone networks, and declining to
    extend such obligations to information services provided over cable
    facilities).

[^91]: *See Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4826, para.
    47.

[^92]: *See* Title III - Provisions Relating to Radio, 47 U.S.C. §§ 301
    et seq. *See also* *IP-Enabled Services NPRM*, 19 FCC Rcd at 4918.

[^93]: 47 U.S.C. §§ 302, 303.

[^94]: 47 U.S.C. §§ 307-309, 312, 316.

[^95]: 47 U.S.C. § 303(r). *See, e.g.,* Interconnection and Resale
    Obligations Pertaining to Commercial Mobile Radio Services, CC
    Docket No. 94-54, *Memorandum Opinion and Order on Reconsideration*,
    14 FCC Rcd 16340, para. 27 (1999) (the Commission using its
    licensing authority under Title III to extend resale requirements to
    enhanced services provided by CMRS carriers).

[^96]: "Mobile wireless broadband Internet access service" is wireless
    broadband Internet access service that meets the "mobile service"
    definition contained in the Act and the Commission's rules. 47
    U.S.C. § 153(27); 47 C.F.R. § 20.3 (defining "mobile service").

[^97]: 47 U.S.C. § 332. *See also* 47 C.F.R. § 20.3 (defining
    "commercial mobile radio service" (CMRS)).

[^98]: Pub. L. No. 103-66, 107 Stat. 312 (1993).

[^99]: 47 U.S.C. § 332.

[^100]: 47 U.S.C. § 332(d)(1); 47 C.F.R. § 20.3.

[^101]: 47 U.S.C. § 332(d)(3).

[^102]: 47 U.S.C. § 332(c)(1).

[^103]: 47 C.F.R. § 20.3.

[^104]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
    56 (1996).

[^105]: *Id.*

[^106]: H.R. Conf. Report 104-458.

[^107]: 47 U.S.C. § 332(d)(2).

[^108]: 47 C.F.R. § 20.3.

[^109]: The term "interconnected service" is defined functionally as "a
    service that is interconnected with the public switched network, or
    interconnected with the public switched network through an
    interconnected service provider, *that gives subscribers the
    capability to communicate to or receive communication from all other
    users on the public switched network* . . . ." *See* 47 C.F.R. §
    20.3 (emphasis added).

[^110]: *Id.*

[^111]: *Id*.

[^112]: Second Report and Order Implementing Section 3(n) and 332 of the
    Communications Act as amended by Section 6002(b) of the Omnibus
    Reconciliation Act of 1993, 9 FCC Rcd 1411, 1434, para. 54 (1994)
    (*CMRS Second Report and Order*).

[^113]: *Id*. *See also* *Calling Party Pays Memorandum Order and
    Opinion*, 16 FCC Rcd 8297, para. 15 (stating that "for a service to
    be interconnected, our rules merely require the technical capability
    to communicate or receive calls from other users of the Public
    Switched Telephone Network."

[^114]: *CMRS Second Report and Order*, 9 FCC Rcd at 1436-37, para. 59.

[^115]: *Id.* 9 FCC Rcd at 1437, para. 60.

[^116]: *See* 47 C.F.R. § 20.3 (interconnected service definition)
    (emphasis added).

[^117]: The term "interconnected service" is defined as "a service that
    is interconnected with the public switched network, or
    interconnected with the public switched network through an
    interconnected service provider, *that gives subscribers the
    capability to communicate to or receive communication from all other
    users on the public switched network* . . . ." *See* 47 C.F.R. §
    20.3 (emphasis added).

[^118]: *Id*. See also 47 C.F.R. § 20.3 (defining the "public switched
    network" as "\[a\]ny common carrier switched network . . . that
    use\[s\] the North American Numbering Plan in connection with the
    provision of switched services."). We note that common carrier
    switched networks that use the North American Numbering Plan to
    reach the Internet switch traffic at less than broadband speeds. As
    the Commission explained in 2002, narrowband Internet access
    services utilize the public switched telephone network and North
    American Numbering Plan. *See* *Wireline Broadband Internet Access
    NPRM*, 17 FCC Rcd at 3025-26, para. 11, n. 18 (stating that
    "\[d\]ial-up or narrowband Internet access utilizes the same public
    switched telephone network (PSTN) infrastructure that telephone
    subscribers use to place traditional circuit-switched voice
    calls."). By contrast, mobile wireless broadband Internet access
    service routes broadband data traffic directly to the Internet
    through data serving nodes, gateways, or other forms of data
    routers.

[^119]: While the Commission interpreted "the public switched network"
    in section 332 as continuing to encompass "the network" as it is
    "continuously growing and changing because of new technology and
    increasing demand," we find that section 332 and our implementing
    rules did not contemplate wireless broadband Internet access service
    as provided today. In fact, the Commission found that "commercial
    mobile service" must still be interconnected with the local exchange
    or interexchange switched network as it evolves: "any switched
    common carrier service that is interconnected with the traditional
    local exchange or interexchange switched network will be defined as
    part of that network for purposes of our definition of 'commercial
    mobile radio services.'" *CMRS Second Report and Order*, 9 FCC Rcd
    at 1436-37, para. 59.

[^120]: The Commission has determined that VoIP services are
    interconnected in other contexts if they "(1) enable real-time,
    two-way voice communications; (2) require a broadband connection
    from the user\'s location; (3) require IP-compatible customer
    premises equipment; and (4) permit users to receive calls from and
    terminate calls to the PSTN." *See* In the Matter of Communications
    Assistance for Law Enforcement Act and Broadband Access and
    Services, Docket No. 04-295, *First Report and Order and Further
    Notice of Proposed Rulemaking*, 20 FCC Rcd 14989, 15008, para. 39
    (2005) (*CALEA Order*), *aff'd* *American Council on Education v.
    FCC & USA*, 451 F.3d 226 (D.C. Cir. 2006) (*American Council on
    Education v. FCC & USA*); In the Matter of E911 Requirements for
    IP-Enabled Service Providers, WC Docket No. 05-196, *First Report
    and Order and Notice of Proposed Rulemaking*, 20 FCC Rcd 10245,
    10257-58, para. 24 (2005).

[^121]: *American Council on Education v. FCC & USA, 451 F.3d at* 232.

[^122]: Similarly, the meaning of the term "the public switched network"
    in section 332 and implementing regulations has no impact on our
    interpretation of a similar term -- "a publicly switched network" --
    found in the House Report on CALEA. Quoting language in the House
    Report expressly stating Congress's intent to provide for
    interception of communications over the Internet and to prevent the
    Internet from offering "a safe haven for illegal activity," we found
    that the Internet backbone network is "*a* publicly switched
    network" for purposes of CALEA in support of our intermediate
    finding that broadband Internet access service replaces a
    substantial portion of the local telephone exchange service and our
    ultimate finding that such service is subject to CALEA under the
    statute's Substantial Replacement Provision (SRP). *See* *CALEA
    Order*, 20 FCC Rcd at 15003, para. 9 (quoting House Report) and
    15004, para. 12 (emphasis in original).

[^123]: 47 U.S.C. § 153(44) (emphasis added).

[^124]: 47 U.S.C. § 332(c)(1)(A).

[^125]: Section 10 states that "\[n\]otwithstanding section 332(c)(1)(A)
    of this Act, the Commission shall forbear from applying any
    regulation or any provision of this Act to a telecommunications
    carrier or telecommunications service, or class of
    telecommunications carriers or telecommunications services . . . if
    the Commission determines that -- (1) enforcement of such regulation
    or provision is not necessary to ensure that the charges, practices,
    classifications or regulations by, for, or in connection with that
    telecommunications carrier or telecommunications service are just
    and reasonable and are not unjustly or unreasonably discriminatory;
    (2) enforcement of such regulation or provision is not necessary for
    the protection of consumers; and (3) forbearance from applying such
    provision or regulation is consistent with the public interest." 47
    U.S.C. § 160(a).

[^126]: *See* 47 U.S.C. § 332(c)(1)(A).

[^127]: *See* Federal-State Joint Board on Universal Service, *Report to
    Congress*, CC Docket No. 96-45, 13 FCC Rcd 11501, 11511, para. 21
    (1998); *see also* 47 U.S.C. § 231(e)(4) (excluding
    "telecommunications services" from the definition of "Internet
    access service"). We note that wireless services similar to mobile
    wireless broadband Internet access service were not available in the
    market place in 1993 when Congress adopted section 332 or, in 1996,
    when Congress adopted the section 3 definition of "telecommunication
    carrier."

[^128]: The Commission is currently reviewing the issue of disability
    access with respect to IP-enabled services. *IP-Enabled Services
    NPRM*, 19 FCC Rcd at 4897-501, paras. 58-60. *See also Wireline
    Broadband Internet Access Services Order*, 20 FCC Rcd at 14919-22.

[^129]: 47 U.S.C. § 255(c).

[^130]: The Commission imposed accessibility obligations on voicemail
    and interactive menu services. *See* Implementation of Sections 255
    and 251(a) of the Communications Act of 1924, as Enacted by the
    Telecommunications Act of 1996, Access to Telecommunications
    Service, Telecommunications Equipment and Customer Premises
    Equipment by Persons with Disabilities, WT Docket No. 96-198,
    *Report and Order and Further Notice of Inquiry*, 16 FCC Rcd 6417,
    6455, para. 93 (1999) (*Section 255 Order*). The Commission
    declined, at that time, however, to extend accessibility obligations
    to other information services, such as email, electronic information
    services, and web pages, that did not appear to have the potential
    to render telecommunications services inaccessible to persons with
    disabilities. *Id*. at 6461, para 107. The Commission adopted a
    *Further Notice of Inquiry* at the same time to obtain additional
    information about Internet telephony and certain computer-based
    equipment that replicates the current telecommunications
    functionality. *See also Wireline Broadband Internet Access Services
    Order* 20 FCC Rcd at 14919, paras. 121-124 (where the Commission
    uses its ancillary jurisdiction under Title I to extend
    accessibility obligations to the wireline broadband Internet access
    service.)

[^131]: The Commission is currently reviewing the issue of disability
    access with respect to IP-enabled services. *IP-Enabled Services
    NPRM*, 19 FCC Rcd at 4897-501, paras. 58-60. *See also Wireline
    Broadband Internet Access Services Order*, 20 FCC Rcd at 14919-22.

[^132]: 534 U.S. 327 (2002).

[^133]: *See* 47 U.S.C. § 224.

[^134]: 47 U.S.C. § 224(a)(4).

[^135]: 47 U.S.C. § 224(a)(1).

[^136]: 534 U.S. 327 (2002).

[^137]: *Id*. at 332-333, 339-342 (stating that the addition of another
    service \--Internet access \-- provided by a cable television system
    does not change the character of the cable television system
    attaching to the pole and that is what matters under the statute.
    Additionally, the Court held that wireless telecommunications
    providers' pole attachments of associated wireless equipment are
    covered under section 224(e) of the Act.). *See also*, In the Matter
    of Fiber Technologies Networks, LLC v. North Pittsburgh Telephone
    Co., File No. EB-05-MD-014, *Memorandum Opinion and Order*, para.
    23, DA 07-486, rel. Feb. 23, 2007.

[^138]: In its comments on the Wireless Broadband Access Task Force
    Report, NextG Networks recommended that the Commission carefully
    consider all of the ramifications of classifying wireless broadband
    Internet access service as an information service, noting that if an
    entity is classified as providing only information services, it may
    face even greater hurdles in accessing utility poles and public
    rights-of-way \-- two elements critical to the deployment of
    wireless broadband infrastructure. *See* Comments of NextG Networks,
    Inc. at 15-17, In re Wireless Broadband Access Task Force Report. As
    discussed above, these concerns may be addressed more appropriately
    in other pending proceedings or pending petitions regarding the
    applicability of section 224 to broadband Internet access service
    providers. *See, e.g.,* Petition for Rulemaking of Fibertech
    Networks, LLC, RM-11303 (filed Dec. 7, 2005) (requesting that the
    Commission adopt a set of "best practices" addressing competitor
    access to poles and conduct); "Pleading Cycle Established for
    Petition for Rulemaking of Fibertech Networks, LLC," Public Notice,
    20 FCC Rcd 19865 (2005) and Petition of United States Telecom
    Association for a Rulemaking to Amend Pole Attachment Rate
    Regulation and Complaint Procedure, RM-11293 (filed Oct. 11, 2005) )
    (requesting that the Commission institute a rulemaking to amend
    existing rules governing pole attachment rates, (continued \...)
    (Continued from previous page) terms, and conditions); "Consumer and
    Governmental Affairs Bureau Reference Information Center Petition
    for Rulemaking Filed," Public Notice, rel. Nov. 2, 2005.

[^139]: 47 U.S.C. § 332(c)(7).

[^140]: 47 U.S.C. § 337(c)(7)(C)(i). We note that certain fixed wireless
    services may be considered exchange access services but not all are.

[^141]: *See* 47 U.S.C. § 332(c)(7)(B)(i)-(iii), (v).

[^142]: 47 U.S.C. § 332(c)(7)(B)(iv).

[^143]: *See supra*, para. 63.

[^144]: In its comments on the Wireless Broadband Access Task Force
    Report, NextG Networks stated that access to utility poles and
    public rights-of-way is critical to the deployment of wireless
    broadband infrastructure and services. *See* Comments of NextG
    Networks, Inc. at 15-16, In re Wireless Broadband Access Task Force
    Report.

[^145]: *See* 47 U.S.C. § 157. *See also* *Cable Modem Declaratory
    Ruling*, 17 FCC Rcd at 4848, para. 97 (noting, in attached Notice of
    Proposed Rulemaking, that one of the Commission's national broadband
    policy goals is to "promote the deployment of advanced
    telecommunications capability to all Americans in a reasonable and
    timely manner").

[^146]: 47 C.F.R. § 20.11.

[^147]: *See* 47 U.S.C. § 251; 47 C.F.R. § 20.11. *See also* *Local
    Competition Order*, 11 FCC Rcd at 15989, para. 993.

[^148]: *Local Competition Order*, 11 FCC Rcd at 15990, para. 995
    (emphasis added).

[^149]: *Id.* Of course, unbundled network elements are not available to
    carriers for the exclusive provision of commercial mobile wireless
    services. Unbundled Access to Network Elements, Review of the
    Section 251 Unbundling Obligations of Incumbent Local Exchange
    Carriers, WC Docket No. 04-313, CC Docket No. 01-338, *Order on
    Remand,* 20 FCC Rcd 2533, 2552-55, paras. 35-36 (2005*), aff\'d,*
    Covad Communications Co. v. Federal Communications Commission*,* 450
    F.3d 528 (D.C. Cir. 2006).

[^150]: *Wireline Broadband Internet Access Services Order*, 20 FCC Rcd
    at 14923 n.400.

[^151]: *Local Competition Order*, 11 FCC Rcd at 15990, para. 995
    (emphasis added).

[^152]: *See Consumer Protection in the Broadband Era NPRM*, 20 FCC Rcd
    at 14929-35, paras. 146-59.

[^153]: *Id.*

[^154]: Policy Statement, FCC 05-151, at 3 (2005) (citing *Hush-A-Phone
    Corp. v. United States,* 238 F.2d 266, 269 (D.C. Cir. 1956); *Use of
    the Carterfone Device in Message Toll Telephone Service*, 13 FCC 2d
    420 (1968)) (The other principles are:  "\[C\]onsumers are entitled
    to access the lawful Internet content of their choice. ... 
    \[C\]onsumers are entitled to run applications and use services of
    their choice, subject to the needs of law enforcement. ... 
    \[C\]onsumers are entitled to competition among network providers,
    application and service providers, and content providers.")

[^155]: *See id*.

[^156]: Concurring Statement of Commissioner Jonathan S. Adelstein,
    *Appropriate Framework for Broadband Access to the Internet over
    Wireline Facilities*, CC Docket No. 02-33, FCC 05-150, Report and
    Order and Notice of Proposed Rulemaking (August 5, 2005) (*Wireline
    Broadband Internet Access Order and Broadband Consumer Protection
    Notice*). Concurring Statement of Commissioner Jonathan S.
    Adelstein, *United Power Line Council's Petition for Declaratory
    Ruling Regarding the Classification of Broadband over Power Line
    Internet Access Service as an Information Service*, WC Docket No.
    06-10, FCC 06-165, Memorandum Opinion and Order (November 3, 2006).