Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

)

)

In the Matter of )

)

Deployment of Wireline Services Offering ) CC Docket Nos. 98-147, 98-11,
98-

) 26, 98-32, 98-78, 98-91

Advanced Telecommunications Capability )

)

**ORDER ON REMAND**

**Adopted: December 23, 1999 Released: December 23, 1999**

By the Commission: Commissioner Furchtgott-Roth approving in part,
dissenting in part and issuing a statement.

#  INTRODUCTION AND OVERVIEW

#  {#section .unnumbered}

1.  Among the fundamental goals of the Telecommunications Act of 1996
    (1996 Act)[^1] is the promotion of innovation, investment and
    competition among all participants and for all services in the
    telecommunications marketplace, including advanced services.[^2] The
    Commission has issued three orders in this proceeding to date and
    most recently took an additional step toward implementing Congress's
    goals for the deployment of competitive advanced services by
    instituting line sharing obligations for incumbent LECs pursuant to
    section 251, and establishing spectrum management policies and
    rules.[^3]

2.  Central to Congress' goal of widespread deployment of advanced
    services is section 251 of the 1996 Act. Congress made clear that
    the 1996 Act is technologically neutral and is designed to ensure
    competition in all telecommunications markets.[^4] In the *Advanced
    Services Memorandum Opinion and Order*, we determined, among other
    things, that incumbent LECs were subject to the obligations imposed
    by section 251 in connection with the offering of advanced services
    that employ packet-switching or other specific technologies such as
    digital subscriber line (xDSL) technologies.[^5] At that time, we
    found that xDSL-based advanced services were "either" telephone
    exchange service or exchange access service.[^6] Following adoption
    of the *Advanced Services Memorandum Opinion and Order*, US WEST
    Communications, Inc., (US WEST) sought review in the United States
    Court of Appeals for the District of Columbia Circuit, seeking
    reversal of the Commission's holding that advanced services are
    either telephone exchange service or exchange access.

3.  Upon review of the record we determine that US WEST may not avoid
    the obligations placed on incumbent LECs under section 251(c) of the
    Act in connection with the provision of advanced services. We also
    affirm our initial view in the *Advanced Services Memorandum Opinion
    and Order* that xDSL-based advanced services are either telephone
    exchange service or exchange access. We clarify that whether
    xDSL-based advanced services constitute telephone exchange service
    or exchange access depends on how such technology is used. We find
    that when xDSL-based advanced services both originate and terminate
    "within a telephone exchange," and provide subscribers with the
    capability of communicating with other subscribers in that same
    exchange, they are properly classified as "telephone exchange
    service." We also find that xDSL-based advanced services constitute
    "exchange access" when they provide subscribers with the ability to
    communicate across exchange boundaries. We find that "information
    access service" is not a category separate and distinct from
    telephone exchange service and exchange access. Therefore, even if
    xDSL-based advanced services are considered "information access
    services," this does not remove them from the classifications of
    telephone exchange service and exchange access.

4.  In the *Advanced Services Memorandum Opinion and Order*, we
    determined, among other things, that incumbent LECs were subject to
    the obligations imposed by section 251 in connection with the
    offering of advanced services that employ packet-switching or other
    specific technologies such as digital subscriber line (xDSL)
    technologies.[^7] At that time, we found that xDSL-based advanced
    services were "either" telephone exchange service or exchange access
    service.[^8] We found it unnecessary at the time to determine into
    which of the two service categories the advanced services fell,
    noting that related issues were pending in other proceedings.[^9]

5.  In response, the Commission requested the opportunity to consider
    further the issues raised by US WEST because some of the statutory
    construction arguments advanced by US WEST in its appellate brief
    had been presented only summarily and in truncated form before the
    Commission. The Commission asked that the court grant it the
    opportunity to address the threshold question of statutory
    interpretation based on a more complete administrative record. On
    August 25, 1999, the court granted the Commission's request and
    remanded the matter back to the Commission.[^10] Consequently, on
    September 9, 1999 the Common Carrier Bureau issued a *Public Notice*
    seeking comment on the issues raised by US WEST.[^11]

6.  In response to this *Public Notice*, nineteen comments and twenty
    replies were filed.[^12] The majority of the commenters maintain
    that the Commission should affirm its holding that xDSL-based
    advanced services are either telephone exchange service or exchange
    access.[^13] Some commenters maintain, however, that xDSL-based
    advanced services are telephone exchange service, but not exchange
    access.[^14] Others maintain that such services fall within the
    definition of exchange access, but not telephone exchange
    service.[^15] A few commenters argue that xDSL-based advanced
    services are neither telephone exchange service or exchange access,
    but are more properly classified as "information access"
    services.[^16]

    **II. US WEST is an Incumbent LEC and May Not Avoid Section 251
    Obligations When Providing Advanced Services**

7.  Sections 251(a) and 251(b) of the Communications Act impose on all
    LECs certain duties regarding interconnection, resale of
    telecommunications services, number portability, dialing parity,
    access to rights-of-way, and reciprocal compensation.[^17] Section
    251(c) requires incumbent LECs to meet certain additional
    obligations to potential competitors with respect to
    interconnection, access to unbundled network elements, resale of
    their retail services, notification of interoperability changes to
    their facilities or networks, collocation, and good faith
    negotiation.[^18]

8.  US West and other commenters make several arguments in support of
    the contention that xDSL based advanced services are not subject to
    the unbundling obligations under section 251(c)(3). US West argues
    that when a LEC is providing something other than telephone exchange
    service or exchange access (or network elements used to provide such
    services), it is not acting as a LEC and therefore is not subject to
    the obligations of section 251(c)(3). In addition, US WEST argues
    that if we require access to network elements on an unbundled basis
    for the provision of advanced services, that could result in
    unlimited access to all of an incumbent LEC\'s facilities.[^19] None
    of these arguments has merit. For the reasons set forth below, we
    conclude that section 251(c)(3) requires incumbent LECs (as defined
    in section 251(h)) to provide nondiscriminatory access to network
    elements used to provide all telecommunications services, including
    advanced services.

9.  At the outset, we affirm our prior conclusion that xDSL-based
    advanced services constitute telecommunications services as defined
    by section 3(46) of the Act.[^20] Although US WEST has argued that
    these services are neither exchange access nor telephone exchange
    services,[^21] even US WEST has expressly conceded that advanced
    services fall within the broad ambit of telecommunications services.
    In its comments, US WEST has stated that "a telephone company's
    obligation to provide access to unbundled elements is not dependent
    on the requester's provision of telephone exchange service or
    exchange access; rather, unbundled elements must be made available
    to providers of any telecommunications service, *including advanced
    services*." [^22] Although US WEST has acknowledged that advanced
    services constitute a type of telecommunications service, US WEST
    nonetheless argues that the requirements of section 251(c) (3) are
    not triggered when a carrier provides access to network elements
    used solely for the provision of advanced services.[^23] It contends
    that when an entity that is otherwise an incumbent LEC is providing
    something other than telephone exchange service or exchange access
    service (or network elements used to provide such services), it is
    not acting as an incumbent LEC and therefore is not subject to the
    obligations of section 251(c)(3).[^24] We reject that assertion.

10. We find no support for US WEST's position in the language of
    section 251. Nor has US WEST shown how the purposes of the section
    or the Act would be furthered by making section 251(h) subject to
    further constraints.[^25] Congress has specifically defined an
    incumbent LEC for purposes of section 251. Pursuant to section
    251(h), an incumbent local exchange carrier for any area means the
    local exchange carrier that "(A) on the date of enactment of the
    Telecommunications Act of 1996, provided telephone exchange service
    in such area" and (B) was a member of NECA, the exchange carrier
    association under section 69.601(b) of the Commission's regulations,
    or a successor or assign of such a member. Thus, the relevant
    inquiry for purposes of determining who is an incumbent LEC pursuant
    to section 251(c) is whether a carrier provided telephone exchange
    and exchange access service in a given service area on February
    8, 1996. There can be no dispute that US WEST provided both
    telephone exchange and exchange access service on that date. US WEST
    thus satisfies the statutory definition in section 251(h) and is an
    incumbent LEC for purposes of section 251. Therefore, because
    advanced services are telecommunications services, an incumbent LEC
    (as defined in section 251(h)) must provide nondiscriminatory access
    to network elements used to provide xDSL-based advanced services
    consistent with the requirements of section 251(c)(3). We further
    agree with those commenters who argue that if Congress intended to
    remove xDSL-based advanced services from the reach of section
    251(c), Congress would have done so in a more explicit fashion.[^26]
    For example, in section 251(c)(2) Congress provided that the
    interconnection obligations thereunder are triggered not for all
    telecommunications service, but only "for the transmission and
    routing of telephone exchange service and exchange access."[^27]

11. In fact, as demonstrated by section 251, Congress elected to impose
    different and increasingly more rigorous obligations on
    "telecommunications carriers," "local exchange carriers," and
    "incumbent local exchange carriers." The statutory construction
    proferred by various incumbent LECs would effectively eliminate
    these distinctions. Congress used these statutory definitions as a
    means of assigning carriers to the appropriate section 251 "box," or
    of exempting them from section 251 entirely.[^28] Once a carrier is
    classified as an incumbent LEC pursuant to section 251(h), the
    extent to which the individual duties established by the provisions
    of section 251(c) apply to its various services and facilities is
    determined by the specific provision in which the duty is set
    forth.[^29] For example, because we determine below that xDSL-based
    advanced services are exchange access or telephone exchange
    services, incumbent LECs must provide requesting carriers with
    interconnection pursuant to section 251(c)(2). Pursuant to section
    251(c)(3), incumbent LECs must unbundle facilities used to provide
    xDSL-based advanced services because these services constitute
    telecommunications services.

12. Moreover, neither US WEST, SBC, nor any other party has explained
    how exempting xDSL-based advanced services from section 251(c) would
    further the purposes of this section or the 1996 Act**.** We find no
    evidence that Congress intended to eliminate the Commission's
    authority to require access to network elements used to provide
    advanced services \-- a result which is at odds with the technology
    neutral goals of the Act and with Congress' aim to encourage
    competition in all telecommunications markets.[^30]

13. Finally, we reject US WEST's contention that if we consider a
    carrier to be an incumbent LEC under section 251 when it provides a
    service other than telephone exchange service or exchange access
    service, then such a reading of section 251 would inevitably require
    GTE and Sprint, acting in their capacity as incumbent LECs, to
    unbundle all their facilities, including their long distance
    facilities.[^31] We find no merit to this contention because it
    ignores the limitations Congress has established in section
    251(d)(2).

14. Section 251(d)(2) imposes a limitation on an incumbent LEC's
    unbundling obligation pursuant to section 251(c)(3). In a recent
    rulemaking proceeding, we set forth the standards the Commission
    will apply to determine which network elements should be
    unbundled.[^32] With regard to non-proprietary elements, a
    requesting carrier typically may access unbundled network elements
    if the failure to provide such access would impair the ability of a
    requesting carrier to provide the services it seeks to offer. With
    regard to proprietary network elements, a requesting carrier
    typically may obtain unbundled access to an incumbent LEC's network
    element if such access is necessary. Pursuant to this standard, the
    Commission has declined to require incumbent LECs to provide
    unbundled access to their packet switches.[^33] These standards
    provide ample protection that the unbundling obligations under
    section 251(c) are consistent with section 251's underlying goal of
    opening the local market to competition.

    **III. Statutory Classification of xDSL-Based Advanced Services**

15. As noted above, certain obligations set forth in section 251 are
    specific to the provision of "telephone exchange service" or
    "exchange access." The primary distinction between these two
    services is that, while telephone exchange services permit
    communication "within a telephone exchange" or "within a connected
    system of telephone exchanges within the same exchange area,"[^34]
    exchange access refers to access to telephone exchange services or
    facilities for the purpose of originating or terminating
    communications that travel outside an exchange.[^35] Thus, in order
    to determine into which category xDSL-based services fall, we must
    determine, as a threshold matter, whether such traffic originates
    and terminates within the equivalent of an exchange area, in which
    case it may be classified as "telephone exchange service," or
    whether such traffic originates in one exchange and terminates in
    another, in which case it is properly classified as "exchange
    access."[^36]

16. The Commission traditionally has determined the nature of
    communications by looking to the end points of the communication,
    and has consistently rejected attempts to divide communications at
    any intermediate points of switching or exchanges between carriers.
    [^37] With respect to xDSL-based advanced services used to connect
    Internet Service Providers (ISPs) with their dial-in subscribers,
    the Commission has determined that such traffic does not terminate
    at the ISP's local server, but instead terminates at Internet
    websites that are often located in other exchanges, states or even
    foreign countries.[^38] Consistent with this determination, we
    conclude that typically ISP-bound traffic does not originate and
    terminate within an exchange and, therefore, does not constitute
    telephone exchange service within the meaning of the Act. As
    explained more fully below, such traffic is properly classified as
    "exchange access." In contrast, work-at-home applications and other
    non-Internet communications may be properly classified as "telephone
    exchange service" if they originate and terminate within a local
    exchange area.[^39]

## A. xDSL-Based Advanced Services May be Classified as Telephone Exchange Services {#a.-xdsl-based-advanced-services-may-be-classified-as-telephone-exchange-services .unnumbered}

**1. Background**

17. We first address whether a service that employs xDSL technology may
    be classified as telephone exchange service within the meaning of
    the Act.[^40] The 1996 Act provides two alternative definitions for
    the term "telephone exchange service."[^41] The first definition,
    which is codified in section 3(47)(A), provides that telephone
    exchange service includes "service within a telephone exchange, or
    within a connected system of telephone exchanges within the same
    exchange area operated to furnish to subscribers intercommunicating
    service of the character ordinarily furnished by a single exchange,
    and which is covered by the exchange service charge."[^42] The
    second definition, which is codified in section 3(47)(B), provides
    that the term also includes "comparable service provided through a
    system of switches, transmission equipment, or other facilities (or
    combination thereof) by which a subscriber can originate and
    terminate a telecommunications service."[^43] In the *Advanced
    Services Memorandum Opinion and Order*, we noted that section
    3(47)(B) was added to ensure that the definition of telephone
    exchange service was not limited to traditional voice telephony, but
    included non-traditional "means of communicating information within
    a local area."[^44]

18. U S WEST contends that prior decisions by the Commission establish
    that three characteristics must be present before a service may fall
    within the scope of the "telephone exchange service" definition.
    First, the service must begin and end "within a telephone exchange"
    or "within a connected system of telephone exchanges."[^45] Second,
    the service must permit "intercommunication," which U S WEST
    describes as the ability of every subscriber to communicate with
    every other subscriber connected to switched network within a
    particular exchange area.[^46] Third, the service must be covered by
    "the exchange service charge." U S WEST argues that xDSL-based
    services do not encompass any of the foregoing characteristics and,
    therefore, do not constitute telephone exchange services within the
    meaning of the Act.[^47]

19. U S WEST acknowledges that section 3(47)(B) may expand the range of
    services that constitute "telephone exchange service" within the
    meaning of the Act.[^48] It argues, however, that the 1996 Amendment
    extends only to "those services that are functionally similar to and
    can substitute for the switched local services" described in section
    3(47)(A).[^49] According to U S WEST, support for this
    interpretation of section 3(47)(B) can be found in at least two
    prior Commission orders. It notes, for example, that the Commission
    previously has construed the term "comparable" as referring to: (1)
    services that could become "true economic substitutes for wireline
    local exchange service;"[^50] and (2) the provision of local
    exchange service over alternative facilities, such as substitutes
    for the copper loop.[^51]

### 2. Discussion {#discussion .unnumbered}

#### Section 3(47)(A) 

20. We conclude that xDSL-based advanced services, when used to permit
    communications among subscribers within an exchange, or within a
    connected system of exchanges, constitute telephone exchange
    services within the meaning of section 3(47)(A) of the Act. U S WEST
    correctly notes that, in cases involving voice communication, the
    Commission has long interpreted the traditional telephone exchange
    definition to refer to "the provision of individual two-way voice
    communication by means of a central switching complex to
    interconnect all subscribers within a geographic area."[^52]
    Contrary to U S WEST's contention, however, the Commission has never
    suggested that the telephone exchange service definition is limited
    to voice communications provided over the public circuit-switched
    network.

21. As we noted in the *Advanced Services Memorandum Opinion and Order*,
    neither the statutory language nor the legislative history
    accompanying section 3(47) limits the term "telephone exchange
    service" to the provision of voice services.[^53] Moreover, we note
    that the local public switched network has been used for dial-up
    access to data transmission services for many years.[^54] For
    example, whenever a facsimilie is sent from a home or office to
    another party within the local area, the transmission is a data
    transmission rather than a voice transmission, but such
    transmissions nevertheless constitute telephone exchange service.
    Consistent with this, the Commission has expressly made the rules
    governing basic telephone exchange service equally applicable to LEC
    provision of data and voice services.[^55] The parties have not
    persuaded us that we should depart from this long-standing practice.
    Indeed, in this era of converging technologies, limiting the
    telephone exchange service definition to voice-based communications
    would undermine a central goal of the 1996 Act\--opening local
    markets to competition to all telecommunications services. We thus
    conclude, consistent with past practice, that the term "telephone
    exchange service" encompasses voice and data services.

22. We further disagree with U S WEST that the statutory language or
    Commission precedent suggest that the term "telephone exchange
    service" is limited to services that employ circuit-switching
    technology. Although the definition of what constitutes an
    "exchange" traditionally has been linked to the area served by a
    switch, or by an interconnected system of switches,[^56] the
    statutory language does not support a conclusion that only services
    that employ circuit-switching technology constitute telephone
    exchange service within the meaning of the Act.[^57] Indeed, we have
    previously noted that the "\[t\]he concept of an exchange is based
    on geography and regulation, not equipment."[^58] Thus, the
    interconnection obligations set forth in section 251(c)(2) apply to
    packet-switched services as well as circuit-switched services.

23. Although we reject the contention that the term telephone exchange
    service is limited to voice communications, we agree with U S WEST
    that the statutory text and Commission precedent support a
    conclusion that telephone exchange services must permit
    "intercommunication" among subscribers within the equivalent of a
    local exchange area.[^59] The term "intercommunication" is not
    defined in the Act or the Commission's rules. Commission precedent
    establishes, however, that, as used in section 3(47)(A),
    "intercommunication" refers to a service that "permits a community
    of interconnected customers to make calls to one another over a
    switched network."[^60] We, therefore, find that a service satisfies
    the "intercommunication" requirement of section 3(47)(A) as long as
    it provides customers with the capability of intercommunicating with
    other subscribers.

24. U S WEST contends that because an xDSL-based advanced service
    subscriber must specify the ISP or third party with whom his or her
    computer is connected, such services do not permit the type of
    "intercommunication" described in section 3(47)(A). We find,
    however, that U S WEST's narrow focus on the manner in which
    xDSL-based advanced services are provisioned is misplaced. In
    classifying a particular service the relevant inquiry is broader. We
    find that although a customer must designate the ISP or third party
    to whom his or her high-speed data transmissions are directed, once
    on the packet-switched network, a customer may rearrange the service
    to communicate with any other subscriber located on that network
    through the use of packet-switching technology. We thus conclude
    that xDSL-based services provide end-users with the type of
    intercommunicating capability envisioned by section 3(47)(A).

25. We further find the cases cited by U S WEST to support its
    contention that services offered over a predesignated transmission
    path do not constitute telephone exchange service to be readily
    distinguishable from the xDSL-based services we consider here.
    Indeed, the services at issue in each of those proceedings were
    offered over private lines.[^61] Private line service is defined as
    "a service whereby facilities for communications between two or more
    designated points are set aside for the exclusive use or
    availability of a particular customer and authorized users during
    stated periods of time."[^62] The xDSL-based services we consider in
    the instant proceeding function differently than private line
    services. Although an xDSL-based advanced service subscriber
    typically will predesignate the ISP or third party to whom his or
    her high-speed data transmissions are directed, the customer may,
    with relative ease, designate that his or her traffic be directed to
    a different ISP or third party. Changing the destination of the
    permanent virtual connection (PVC) can be done administratively,
    without disconnecting the customer's service.[^63] Customers
    subscribing to private line service, in contrast, may communicate
    only between those specific, predetermined points set aside for that
    customer's exclusive use. If a private line customer wishes to
    communicate with a second end-point, the customer (unlike a
    xDSL-based advanced service subscriber) must order another private
    line. Similarly, if the customer wishes to have only one private
    line, the customer must have the first line disconnected. Thus,
    other than the fact that both services involve an initial connection
    between an end-user and a service provider, xDSL-based advanced
    services are readily distinguishable from private line service in
    ways critical to our application of the "telephone exchange service"
    classification.[^64]

26. We recognize that, in the *GTE ADSL Tariffing Order*, the Commission
    noted that a dedicated connection between an end-user and a service
    provider's point of presence is similar to private line
    service.[^65] We do not find, however, that such an observation is
    relevant with respect to determining whether services that employ
    xDSL technology may constitute telephone exchange service within the
    meaning of the Act. Rather, the key criterion for determining
    whether a service falls within the scope of the telephone exchange
    service definition is whether it permits "intercommunication." As
    noted above, in this regard, xDSL-based advanced service and private
    line service are distinguishable in that xDSL-based services permit
    intercommunication and private line services do not.

27. The final requirement in section 3(47)(A) is that telephone exchange
    services be covered by "the exchange service charge."[^66] Although
    this term is not defined in the Act or the Commission's rules we
    glean its meaning from the context in which the phrase is used. We
    agree with those commenters who argue that the phrase implies that
    an end-user obtains the ability to communicate within the equivalent
    of an exchange area as a result of entering into a service and
    payment agreement with a provider of a telephone exchange
    service.[^67] Specifically, we concur with AT&T that the "covered by
    the exchange service charge" clause comes into play only for the
    purposes of distinguishing whether or not a service is a local
    (telephone exchange) service, by virtue of being part of a
    "connected system of exchanges," and not a "toll" service.[^68] Any
    other interpretation would confer upon LECs the ability to remove
    services at will from the definition of "telephone exchange
    services" simply by calling charges for these services something
    other than "exchange service charges" on their bills. We thus find
    that any charges that a LEC assesses for originating and terminating
    xDSL-based advanced services within the equivalent of an exchange
    area would be covered by the "exchange service charge."

28. We thus reject U S WEST's contention that, because the price of
    xDSL-based services is not included within the price of basic local
    telephone service, such services are not covered by "the exchange
    service charge." Indeed, we note that, in a competitive environment,
    where there are multiple local service providers and multiple
    services, there will be no single "exchange service charge."[^69] We
    further note that, if a service otherwise satisfies the telephone
    exchange service definition, a LEC has the option of including the
    price of that service within the price it charges consumers for
    basic local telephone service. The fact that U S WEST, or any other
    LEC, chooses to list the charge for basic local telephone service
    and xDSL-based advanced service separately on end-users' bills is
    not relevant to a determination of whether the price for the
    xDSL-based advanced service offering is covered by the exchange
    service charge.

    \(b\) Section 3(47)(B)

29. We conclude that a service falls within the scope of section
    3(47)(B) if it permits intercommunication within the equivalent of a
    local exchange area and is covered by the exchange service charge.
    In setting forth the types of services that may fall within the
    scope of section 3(47)(B), Congress determined, as an initial
    matter, that such services must be "comparable" to the services
    described in section 3(47)(A). Although the term "comparable" is not
    defined in the Act, it is generally understood to mean "having
    enough like characteristics and qualities to make comparison
    appropriate."[^70] The xDSL-based advanced services at issue here,
    when they originate and terminate within an exchange area, satisfy
    the statutory definition of telephone exchange service under
    clause (B) of section 3(47) as well, and that clause provides an
    alternative basis for our conclusion that these services may
    constitute telephone exchange services. We note that neither the
    statutory text nor the legislative history accompanying section
    3(47)(B) provides guidance on which characteristics and qualities
    must be present in order for a service to fall within the scope of
    section 3(47)(B). In these circumstances, we presume that Congress
    sought to provide the Commission with discretion in determining
    whether a particular telecommunications service is sufficiently
    "comparable" to the services described in section 3(47)(A) to
    constitute telephone exchange service within the meaning of the
    Act.[^71]

30. We agree with U S WEST that the term "comparable," as used in
    section 3(47)(B), means that the services described therein share
    some of the same characteristics and qualities as the services
    described in section 3(47)(A). Because we find that the term
    "comparable" means that the services retain the key characteristics
    and qualities of the telephone exchange service definition under
    subparagraph (A), we reject the argument that subparagraph (B)
    eliminates the requirement that telephone exchange service permit
    "intercommunication" among subscribers within a local exchange area.
    As prior Commission precedent indicates, a key component of
    telephone exchange service is "intercommunication" among subscribers
    within a local exchange area.[^72]

31. We reject U S WEST's contention, however, that section 3(47)(B) is
    limited to services that are "market substitutes" for two-way
    switched voice service. We recognize that, in the *Local Competition
    Order*, the Commission determined that section 3(47)(B) includes
    cellular and other wireless services because such services provide
    two-way voice communication that could "become...true economic
    substitute\[s\]" for traditional two-way switched voice services.
    Contrary to U S WEST's contention, however, the Commission never
    suggested that the telephone exchange service definition is limited
    to voice services or that substitutability is a necessary criterion
    for determining whether a particular telecommunications service
    falls within the scope of section 3(47)(B). We note however that
    xDSL-based services, in fact, are being used to replace local
    dial-up traffic to ISPs and third parties.

32. Other provisions in the Act support a conclusion that, although the
    services described in subsection (A) and subsection (B) of the
    telephone exchange service share some of the same characteristics
    and qualities, they are not necessarily identical services. Section
    271, in particular, states that, in order for a BOC to obtain
    authorization to provide in-region, interLATA service, it must
    demonstrate that it is providing access and interconnection to "one
    or more unaffiliated competing providers" of the type of telephone
    exchange service described in section 3(47)(A) to residential and
    business subscribers. A BOC does not satisfy the requirements of
    section 271 on the basis of a competing provider of the type of
    services described in section 3(47)(B). Congress's decision to
    specifically limit section 271 authorization to the types of
    services described in section 3(47)(A) suggests that, while the
    services described in subsection (B) and subsection (A) share
    similar qualities, they are not necessarily identical service
    offerings.

## B. xDSL-Based Services May Be Classified as Exchange Access

**1. Background**

33. The next question we address is whether, and under what
    circumstances, xDSL-based advanced services may be classified as
    exchange access under the Act. As we have previously found in the
    *Reciprocal Compensation Order*, xDSL-based advanced services that
    are used to connect ISPs with their subscribers to facilitate
    Internet bound traffic typically constitute exchange access service
    because the call initiated by the subscriber terminates at Internet
    websites located in other exchanges, states, or foreign
    countries.[^73] The mechanics of the Internet bound call are
    critical to our determination that the xDSL-based advanced service
    provided by the local exchange carrier indeed is exchange access.
    For that reason, we briefly review the manner in which the call is
    executed.

34. An ISP is an entity that provides its customers with the ability to
    obtain a variety of on-line information through the Internet.
    However, ISPs typically own no telecommunications facilities. In
    order to provide those components of Internet access services that
    involve information transport, ISPs lease lines, and otherwise
    acquire telecommunications, from telecommunications providers - -
    LECs, CLECs, IXCs and others.[^74] ISP's purchase use of analog and
    digital lines from LECs to connect to their dial-in subscribers.
    Under one typical arrangement, an ISP customer dials a seven-digit
    number to reach the ISP server in the same local calling area. To
    provide transport within its network, the ISP may purchase
    interexchange telecommunications services from telecommunications
    carriers, and for transport beyond its network, the ISP either
    purchases additional interexchange telecommunications from
    telecommunications carriers, or makes arrangements to interconnect
    its leased facilities with one or more Internet backbone
    providers.[^75] Thus, the information service is provisioned by the
    ISP "via telecommunications" including interexchange
    telecommunications although the Internet service itself is an
    "information service" under section 3(2) of the Act, rather than a
    telecommunications service.[^76]

**2. Discussion**

35. The issue we address here is whether xDSL-based services may
    constitute exchange access under the Act. This question arises
    primarily in the context of services provided to ISPs to facilitate
    their provision of Internet access services. Applying the
    definitions contained in section 3 of the Act, we conclude that the
    service provided by the local exchange carrier to the ISP is
    ordinarily exchange access service because it enables the ISP to
    transport the communication initiated by the end-user subscriber
    located in one exchange to its ultimate destination in another
    exchange, using both the services of the local exchange carrier and
    in the typical case the telephone toll service of the
    telecommunications carrier responsible for the interexchange
    transport.[^77]

36. We evaluate two relevant definitions contained in the Act. Section
    3(16), a new provision of the Act, defines "exchange access" as the
    offering of access to telephone exchange services or facilities for
    the purpose of the origination or termination of *telephone toll
    service*." (emphasis added) Section 3(48), which was in the original
    Act, in turn defines "telephone toll service" as "telephone service
    between stations in different exchanges for which there is made a
    separate charge."[^78] We conclude that because the local exchange
    carrier provides access permitting the ISP to complete the
    transmission from its subscriber's location to a destination in
    another exchange using the toll service it typically has purchased
    from the interexchange carrier, the access service provided by the
    local exchange carrier is for the "origination or termination of
    telephone toll service" within the meaning of the statutory
    definition. In reaching this conclusion, we further find that the
    interexchange carrier that provides the interexchange
    telecommunications to the ISP charges the ISP for those
    telecommunications and that charge is separate from the exchange
    service charge that the ISP or end user pays to the LEC. As a
    result, the "separate charge" requirement of section 3(48) is
    satisfied with respect to the underlying interexchange
    telecommunications.

37. We therefore reject the argument of those commenters who suggest
    that the *only* service originated or terminated by the local
    exchange carrier, when it provides access to the ISP, is an
    information service.[^79] We previously rejected a similar argument
    in the *Universal Service Report to Congress,* where we held that
    carriers that offer basic interstate telecommunications
    functionality to end users (such as ISP subscribers) are
    "telecommunications carriers" covered by the relevant provisions of
    section 251 and 254 of the Act "regardless of the underlying
    technology those service providers employ**,** *and regardless of
    the applications that ride on top of their services."*[^80] In other
    words, even though the access provided to the ISP by the local
    exchange carrier facilitates the delivery of an information service
    because of the "applications that ride on top" of the
    telecommunications service, that same access necessarily facilitates
    the origination of the underlying telephone toll service used to
    transport the ISP's Internet access service. Therefore, while some
    commenters object that the LECs' services cannot be "exchange
    access" because there is no origination and termination of traffic
    to and from a telecommunications carrier, their argument fails
    whenever the ISP effectuates its transmission using the telephone
    toll service of a telecommunications carrier, as it generally does.

38. We recognize that this analysis with respect to \"exchange access\"
    does not by its terms cover traffic jointly carried by an incumbent
    LEC and a competitive LEC to an ISP where the ISP self-provides the
    transport component of its internet service. We leave for another
    day the question of whether the LEC-provided portion of such traffic
    (which we believe to be rare) falls within the definition of
    \"exchange access\" in section 3(16) and whether, as a result, the
    incumbent LEC would be subject to the interconnection obligations of
    section 251(c)(2) with respect to such traffic. We find, however,
    that even if such traffic traveling over the facilities of an
    incumbent LEC and a competitive LEC to an ISP falls outside the
    scope of section 3(16) and is not covered by section 251(c)(2), the
    ILEC would nevertheless be subject to interconnection obligations
    imposed by section 251(a) and (to the extent that the service is
    interstate) section 201(a). Moreover, we note that, to the extent
    that the LEC-provided portion of such traffic may not fall within
    the definition of \"exchange access,\" the predominantly
    [inter]{.underline}-exchange end-to-end nature of such traffic
    nevertheless renders it largely non-local for purposes of reciprocal
    compensation obligations of section 251(b)(5). In light of our
    authority to require interconnection under sections 201(a) and
    251(a) even in the ISP self-provisioning context, we expect
    incumbent LECs to continue providing interconnection to competitive
    LECs without imposing tariff, certification or other requirements on
    competitive LECs requesting interconnection. We encourage parties
    alleging the imposition of such requirements to file complaints
    pursuant to section 208 of the Act.

39. We also reject US WEST's argument that xDSL-based advanced services
    are not encompassed within the definition of exchange access because
    such services may not connect one "telephone" to another.[^81] US
    WEST argues that because "telephone toll service" is defined as
    "*telephone* service *between stations* in different exchange," use
    of computers or other facilities than telephones as "stations"
    should remove a service from the classification of telephone toll
    service. Based on this premise, US WEST further argues that
    "telephone toll service" should be narrowly construed and that only
    ordinary telephone to telephone long distance calling can be
    classified as telephone toll service. We reject these contentions
    for several reasons.

40. First, nothing in the Act or legislative history equates the term
    "station" with any particular type of facility. As several
    commenters point out, Commission precedent supports the conclusion
    that the term "station" in section 3(48) refers to *any* device used
    by an end-user to receive and terminate telecommunications.[^82] For
    example, long distance facsimile transmissions (which clearly
    involve data) have long been considered telephone toll service; yet
    those transmissions often are effectuated without the use of a
    "telephone" device. Rather, as with computers, the facsimile machine
    is plugged into a telephone jack, and then uses the phone wires for
    the transmission. US WEST's argument ignores this longstanding
    precedent. Moreover, a narrow, technology-specific interpretation of
    the term "station" is not articulated in the Act itself and would be
    at odds with its "technology neutral" objectives.[^83] US WEST would
    ask us to conclude that Congress intended to ignore the fact that
    facilities and equipment used to provide telecommunications services
    evolve over time. We conclude that US WEST's interpretation is
    neither a "plain meaning," as it asserts, nor, in our view, a
    reasonable interpretation.

41. Similarly, we reject US WEST's assertion that "telephone service" is
    limited to voice communications.[^84] The local switched network has
    been used for the origination and termination of interstate data
    communications for many years. As noted above, the network has long
    been used to transmit facsimile communications, which are data
    communications. In fact, in its arbitration with e-spire before the
    Arizona Corporation Commission, US WEST acknowledged that it is
    offering the equivalent of exchange access when it permits access to
    its network for the origination or termination of interstate frame
    relay services.[^85] Similar to xDSL-based services, frame relay
    service is a high-speed packet switching technology that is used to
    transmit digital data.[^86]

42. We recognize that we did hold, in the *Non-Accounting Safeguards
    Order,* that ISPs do not receive "exchange access services in
    connection with their provision of unregulated information services
    because of their status as non-carriers."[^87] However, that Order
    constitutes a departure from other Commission precedent on this
    matter. In a contemporaneous Commission decision, the *Local
    Competition Order*, we specifically stated that, although "\[t\]he
    vast majority" of exchange access service purchasers are
    telecommunications carriers, non-carriers "do occasionally purchase"
    such services.[^88] In fact, when the *Non-Accounting Safeguards
    Order* was issued, the question of whether an xDSL-based service
    offering directed at ISPs could be "exchange access" or "telephone
    exchange service" was not before the Commission. Indeed, such
    service was first offered more than a year after release of that
    Order.

43. On a more complete record in this proceeding, we correct the
    inconsistency in our prior orders and overrule the determination
    made in the *Non-Accounting Safeguards Order* that non-carriers may
    not use exchange access and affirm our determination in the *Local
    Competition Order* that non-carriers may be purchasers of those
    services. We find that this conclusion is consistent with the
    Commission's longstanding characterization of the service that LECs
    offer to enhanced services providers (which include ISPs) as
    exchange access. In *MTS and WATS Markets Structure Order*, the
    Commission held that "\[a\]mong the variety of users of access
    service are...enhanced service providers."[^89] As recognized in
    that case, the Commission has always required LECs to offer access
    services to parties that may not be common carriers.[^90] Similarly,
    we noted in the *Amendment of Part 69 of the Commission's Rules
    Relating to Enhanced Service Providers* that enhanced service
    providers use "exchange access service"[^91] More recently, in *the
    GTE ADSL Tariffiing Order,* we noted that "\[t\]he Commission
    traditionally has characterized the link from an end user to an ESP
    as an interstate access service."[^92]

44. These holdings comport with the conclusion in *the Local Competition
    Order* that non-carriers may purchase exchange access services.[^93]
    This historical treatment properly serves as a lens through which to
    view Congress's intent in codifying a definition of "exchange
    access" in the 1996 Act.[^94] Nothing in the new definition of the
    Act or in its history suggests that Congress intended to narrow, for
    the first time, the availability of exchange access service to
    certain telecommunications service providers. For these reasons, we
    overrule our statements in the *Non-Accounting Safeguards Order*
    that non-carriers may not use exchange access, which we find to be
    inconsistent with our own precedent, and with the structure of the
    Act.

45. Finally, we reject U S WEST's contention that including DSL-based
    advanced services within the definition of "exchange access" would
    be inconsistent with the Commission's prior determination that such
    services constitute "special access." Rather, we find that, with
    respect to access to the local network for the purpose of
    originating or terminating an interexchange communication, any
    service that otherwise constitutes "special access" also falls
    within the definition of "exchange access." We note that "special
    access" refers to a dedicated path between an end-user and a service
    provider's point of presence.[^95] We agree that special access,
    which provides access to the exchange through dedicated facilities,
    is different than switched access, which provides access to the
    exchange using switches. Both forms of access, however, provide
    access to exchange facilities, which is the pertinent point under
    the statutory definition of "exchange access."

## C. "Information Access Service" is Not a Statutory Classification Separate and Distinct from Telephone Exchange Service and Exchange Access  {#c.-information-access-service-is-not-a-statutory-classification-separate-and-distinct-from-telephone-exchange-service-and-exchange-access .unnumbered}

46. US WEST contends that it is not subject to section 251(c) for its
    provision of xDSL-based advanced services because such services are
    "information access" services, which it considers a category
    distinct from both "telephone exchange services" and "exchange
    access" services.[^96] US WEST argues that the category of
    "information access" in the Modification of Final Judgement (MFJ)
    should be extended to the Communications Act, notwithstanding that
    "information access" is not a defined term under the Act, and is
    cross-referenced in only two transitional provisions. SBC and GTE
    join US West's argument that advanced services are "information
    access," which they assert is a category of service distinct from
    telephone exchange or exchange access under the Communications
    Act.[^97] A number of parties question whether Congress intended to
    establish "information access" as a separate category of services
    that are not subject to section 251 requirements.[^98] We disagree
    with US WEST and the commenters who argue that information access
    services are a separate category of services not subject to section
    251(c). For the reasons set forth below, we decline to find that
    information access services are a separate category of services,
    distinct from, and mutually exclusive with, telephone exchange
    services or exchange access services.

47. Although Congress made a number of changes to the definitional
    provisions of the Act in the 1996 Act it did not include a
    definition for the term "information access." That omission is not
    surprising in light of the fact that this term is referenced only
    twice in the Act, and only for the purposes of transitioning from
    the MFJ. In contrast, the 1996 Act did provide for new or modified
    definitions of several terms critical to the statute, including both
    "exchange access" and "telephone exchange service," terms that
    appear throughout the Act. The term "information access" first
    appears in sections 251(g). That provision is a transitional
    enforcement mechanism that obligates the incumbent LECs to continue
    to abide by equal access and nondiscriminatory interconnection
    requirements of the MFJ when such carriers "provide exchange access,
    information access and exchange services for such access to
    interexchange carriers and information service providers...."
    Because the provision incorporates into the Act, on a transitional
    basis, these MFJ requirements, the Act uses the MFJ terminology in
    this section.[^99] However, this provision is merely a continuation
    of the equal access and nondiscrimination provisions of the Consent
    Decree until superseded by subsequent regulations of the
    Commission.[^100]

48. The reference to "information access" in section 274(h)(2)(A) adds
    little more to US West's argument. That section states that the term
    "electronic publishing," which section 274 prohibits BOCs form
    providing for four years, does not include "information access" as
    defined in the MFJ. The cross-reference to the MFJ reflects the fact
    that although a BOC would be precluded for a time from engaging in
    electronic publishing, that prohibition would not encompass other
    offerings related to information services, including "information
    access," that otherwise were permitted by the divestiture court. Yet
    again, in this transitional four-year provision, Congress was merely
    reconciling certain aspects of the MFJ with the new law. Equally
    significant, nothing in this provision suggests that "information
    access" is a category of services mutually exclusive with exchange
    access or telephone exchange service.

49. For the reasons set forth above, we find that the requirements
    Congress set forth in section 251 apply to incumbent LECs providing
    xDSL-based advanced services and that these services are either
    telephone exchange or exchange access.

# IV. ORDERING CLAUSES {#iv.-ordering-clauses .unnumbered}

50. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in Sections 1-4, 7, 10, 201-205, 251-254, 256, 271, and 303(r) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154,
    157, 160, 201-205, 251-254, 256, 271, and 303(r), this *Order on
    Remand* IS ADOPTED.

51. IT IS FURTHER ORDERED that the Commission's holding in its *Advanced
    Services Opinion and Order*, that incumbent local exchange carriers
    are subject to the obligations imposed by section 251 of the
    Communications Act in connection with the offering of advanced
    services that employ packet switching or other specific technologies
    such as digital subscriber line technologies, IS AFFIRMED except to
    the extent that the Commission has deferred a determination on the
    narrow question set forth in paragraph 38.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Román Salas

Secretary

**Appendix A**

**List of Commenters in CC Docket No. 98-147**

[Comments:]{.underline}

Advanced Telcom Group, et al.

AT&T Corp.

CDS Networks, Inc.

CoreComm Limited

Covad Communications Company

DSLnet Communications, LLC

Focal Communications Corporation, et al.

General Services Administration

GTE Service Corporation

Level 3 communications

MCI WorldCom, Inc.

Mindspring Enterprises, Inc.

Northpoint Communications, Inc.

Prism Communications Services

Rhythms Netconnections Inc.

SBC Communications Inc.

Sprint Corporation

Telecommunications Resellers Association

U.S. West Communications, Inc.

[Reply Comments:]{.underline}

America Online, Inc.

AT&T Corp.

Cable & Wireless USA, Inc.

Competitive Telecommunications Association

DLSnet Communications, LLC

GTE Service Corporation

GVNW Consulting, Inc.

ICG Communications, Inc.

Level 3 Communications, LLC

MCI WorldCom, Inc.

NARUC

Network Access Solutions Corporation

Northpoint Communications, Inc.

Prism Communications Services, Inc.

RCN TeleCom Services, Inc., et al.

Rhythms Netconnections Inc.

SBC Communications Inc.

U.S. West, Inc.

USTA

Williams Communications, Inc.

**STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT‑ROTH**

**APPROVING IN PART & DISSENTING IN PART**

*Re: Deployment of Wireline Services Offering Advanced
Telecommunications Capability*, Order on Remand, CC Docket Nos. 98-147,
98-11, 98-26, 98-32, 98-78, 98-91.

I agree with the Commission's decision that US WEST is an incumbent
local exchange carrier and may not avoid the obligations imposed by
section 251(c)(3) when providing advanced services. I also agree with
its conclusion that "information access service" is not a statutory
classification separate and distinct from telephone exchange service and
exchange access. I cannot, however, approve of the Commission's
conclusions that advanced services are either telephone exchange service
or exchange access, and I dissent from this aspect of its order.

The statute supplies two definitions of "telephone exchange service." It
is either a "service within a telephone exchange, or within a connected
system of telephone exchanges within the same exchange area operated to
furnish to subscribers intercommunicating service of the character
ordinarily furnished by a single exchange, and which is covered by the
exchange service charge," or it is a "comparable service provided
through a system of switches, transmission equipment, or other
facilities (or combination thereof) by which a subscriber can originate
and terminate a telecommunications service." 47 U.S.C. § 3(47). Exchange
access means "the offering of access to telephone exchange services or
facilities for the purpose of the origination or termination of
telephone toll services." *Id.* § 3(16).

At the outset, I recognize that these definitions are hardly models of
clarity. They incorporate terms better suited to the traditional
circuit-switched network, some of which are left undefined in the
statute, such as "telephone exchange," "intercommunicating," "the
exchange service charge," "origination," and "termination."

Although I agree with the Commission that "telephone exchange service"
is not limited to the provision of voice services, I do not think that
all advanced services can necessarily be shoehorned into the definition
of "telephone exchange service." In my view, some advanced services do
not permit the type of "intercommunication" contemplated by section
3(47)(A).

\`For example[,]{.underline} as the Commission
acknowledges[^101][^102]an end-user's communication using an xDSL-based
service is with an Internet service provider ("ISP") or other third
party to which the end-user subscribes. It is not with --and thus not in
intercommunication with\--other subscribers to a local telephone
exchange network, or with subscribers on a different telephone exchange
network, or even with the party to whom the end-user's Internet traffic
is ultimately directed.

Because communication with an advanced service such as xDSL is with and
through an ISP, I find it difficult to classify such services as either
telephone exchange service or access service. *First*, as I explained in
the reciprocal compensation order, I believe that traffic to an ISP,
whether dial-up traffic or provided through an advance service,
terminates at a the ISP[^103][^104] The so-called "two-call theory" was
properly advanced by the Commission before January of this year and then
improperly abandoned to provide a short-term remedy to reciprocal
compensation issues[^105] As I view local exchange traffic as
terminating at an ISP, I consequently cannot view traffic subsequently
routed by an ISP as part of a single call, or part of a telephone
exchange service.

*Second*, the Commission has long held that an ISP is not a
telecommunications carrier or telecommunications provider[^106][^107]
Thus, even under a single-call theory for ISP-bound traffic, it is hard
to explain how traffic handled and routed by an ISP could, end-to-end,
be an identifiable telecommunications service. How does one characterize
the role and identity of the non-telecommunications ISP in a
communication that it routes or delivers? This paradox applies for both
dial-up traffic and traffic by means of advanced services.

*Third*, communications through ISPs do not in most instances
"terminate" at the facilities of other subscribers. Rather, messages are
stored at remote servers, in region or out of region, but not with the
ultimate addressee. The addressee, in turn, retrieves the message from
the remote server. All of the activities of sending, storing, and
retrieving messages are conducted on facilities that the Commission has
not suggested are associated with a particular telecommunications
service, much less with a particular telephone exchange service or
exchange access service.

*Fourth*, the current use of xDSL services appears fundamentally at odds
with the concept of "intercommunication." The end-user cannot change the
ISP to whom his high-speed data communications are directed without
first disconnecting from that ISP and designating a replacement ISP.
Whatever "intercommunication" is occurring in this scenario is between
the end-user and the ISP, and I therefore do not think that the end-user
is employing advanced services for "intercommunication" with other
subscribers within the meaning of section 3(47)(A). Moreover, because
the end-user is not "intercommunicating" with other subscribers, I do
not agree that advanced services can be deemed "comparable services"
under section 3(47)(B).

For similar reasons, I do not believe that advanced services may be
classified as "exchange access," which the statute defines as the
offering of access to telephone exchange services or facilities for the
purpose of the origination or termination of telephone toll services. 47
U.S.C. § 3(16). In the first place, I do not see how an xDSL-based
communication is used in the origination or termination of a "telephone
toll service," which is a "telephone service between stations in
different exchange areas for which there is made a separate charge not
include in contracts with subscribers for exchange access," *Id.*
§3(48). In any event, as indicated above, I disagree with the
Commission's theory regarding the jurisdictional nature of Internet
traffic. In my view, an xDSL-based communication to an ISP terminates
with the ISP, and so such traffic is not properly classified as
"exchange access."

[^1]: Telecommunications Act of 1996, Pub. L. 104-104, Feb, 8, 1996, 110
    Stat. 56, codified at 47 U.S.C. § 151 et seq. (1996 Act). The 1996
    Act amended the Communications Act of 1934. We refer to the
    Communications Act of 1934, as amended as the "Communications Act"
    or "the Act."

[^2]: ^?^ Joint Statement of Managers, S. Conf. Rep. No. 104-230,
    104^th^ Cong. 2d Sess. 1 (1996*) (Joint Explanatory Statement*). For
    purposes of this order, we use the term "advanced services" to mean
    high speed, switched, broadband, wireline telecommunications
    capability that enables users to originate and receive high-quality
    voice, data, graphics and video telecommunications. The term
    "broadband" is generally used to convey sufficient capacity -- or
    bandwidth -- to transport large amounts of information. As
    technology evolves, the concept of "broadband" will evolve with it:
    we may consider today's "broadband" services to be "narrowband"
    services when tomorrow's technologies appear.

[^3]: *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, CC Docket No. 98-147, Memorandum
    Opinion and Order and Notice of Proposed Rulemakin*g*, 13 FCC Rcd
    24012 (1998*) (Advanced Services Memorandum Opinion and Order);
    Deployment of Wireline Services Offering Advanced Telecommunications
    Capability*, CC Docket No. 98-147, First Report and Order and
    Further Notice of Proposed Rulemaking, 14 FCC Rcd 4761 (1999)
    (*Advanced Services First Report and Order* *and FNPRM*);
    *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, CC Docket No. 98-147, Second Report
    and Order, FCC 99-330 (rel. Nov. 9, 1999) (*Advanced Services Second
    Report and Order*); *Deployment of Wireline Services Offering
    Advanced Telecommunications Capability*, CC Docket No. 98-147, Third
    Report and Order, FCC 99-355 (rel. December 9, 1999) (*Advanced
    Services Third Report and Order*).

[^4]: *See* *Advanced Services Memorandum Opinion and Order,* 13 FCC Rcd
    at 24017, ¶ 11.

[^5]: *Id.* at 24035-36, ¶ 50.

[^6]: *Id*. at 24032, ¶40.

[^7]: *See* *Advanced Services Memorandum Opinion and Order*, 13 FCC Rcd
    24011, 24035-36 (1998).

[^8]: *Id.* at 24032, ¶40.

[^9]: *Id.*

[^10]: *See US WEST Communications, Inc. v. Federal Communications
    Commission*, No. 98-1410 (D.C. Cir. Aug. 25, 1999) (order granting
    motion for remand).

[^11]: Public Notice: Comments Requested in Connection with Court Remand
    of August 1998 Advanced Services Order, DA 9901853, released
    September 9, 1999. The Public Notice listed a number of issues and
    asked for comment to "aid the Commission in meeting its commitment
    to the court to consider an address within 120 days the issues
    raised by US WEST."

[^12]: Attached as Appendix A is a list of the parties filing comments
    and replies in this proceeding.

[^13]: AT&T Comments at 5; CDS Comments at 3-4; Prism Comments at 9; RCN
    Comments at 2; Sprint Comments at 4-5; Joint CLEC Comments at 10,
    19; MGC Comments at 5-6; Williams Reply Comments at 4.

[^14]: CDS Comments at 2; Focal et. al. Comments at 2; GSA Comments at
    3; MCI Comments at 12; MindSpring Comments at 3; RCN Telecom/Connect
    Comments at 2; TRA Comments at 12; Wisconsin PSC Comments at 3-5.

[^15]: NorthPoint Comments at 7; Rhythms Comments at 19.

[^16]: US WEST Comments at 4; SBC Comments at 8; GTE Comments at 8-11;
    Covad Comments at 7; USTA Reply Comments at 4.

[^17]: *See* 47 U.S.C. §§ 251(a), 251(b). The interconnection obligation
    contained in section 251(a) applies to all telecommunications
    carriers, including LECs. The obligations of section 251(b) apply
    only to LECs.

[^18]: *See* 47 U.S.C. § 251(c).

[^19]: US WEST Reply Comments at 8-9

[^20]: *See Advanced Services Memorandum Opinion and Order*, 13 FCC Rcd
    24012 at ¶¶ 35-36.

[^21]: *See* ¶¶18-19 infra.

[^22]: US WEST Comments at 19 (emphasis added).

[^23]: US WEST Comments at 19.

[^24]: US WEST Comments at 6.

[^25]: *See* ¶ 19.

[^26]: *See* Joint CLEC Comments at 11.

[^27]: 47 U.S.C. § 251(c)(2).

[^28]: See Letter from Larry Irving, NTIA, to Chairman William E.
    Kennard at 7 n.22, CC Docket Nos. 98-91; 98-32, 98-26, 98-11 (filed
    July 11, 1998).

[^29]: *See* AT&T Comments at 5.

[^30]: *See* Federal State Joint Board on Universal Service, *Report and
    Order*, CC Docket No. 96-45; 12 FCC Rcd. 8776, 8802-8803 (noting the
    importance of competitive and technological neutrality to promote
    competition).

[^31]: US WEST Reply Comments at 8-9.

[^32]: *See Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996;* Third Report and Order, CC Docket
    No. 96-98; FCC 99-238 at ¶ 49 (rel. November 5, 1999) (*Local
    Competition Third Report and Order*).

[^33]: *See Local Competition Third Report and Order*, at ¶ 306.

[^34]: 47 U.S.C. § 3(47)(A).

[^35]: 47 U.S.C. § 3(16).

[^36]: We note that our conclusion that whether advanced,
    packet-switched services constitute "telephone exchange service" or
    "exchange access" depends on the circumstances in which they are
    provided, is no different from the conclusion that circuit-switched
    services constitute either telephone exchange service or telephone
    toll service, depending upon the end points of the communication.
    *See* Joint CLEC Commenters Comments at 8.

[^37]: *Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996, Inter-Carrier Compensation for
    ISP-Bound Traffic*, CC Docket Nos. 96-98 and 99-68, , Declaratory
    Ruling and Notice of Proposed Rulemaking, 14 FCC Rcd 3689, 3695-3696
    at ¶10 (1999)("*Reciprocal Compensation Order*).

[^38]: In reaching this conclusion, the Commission acknowledged the
    difficulty of identifying a point of "termination" in the
    packet-switched network environment of the Internet. The Commission
    noted, for example, that, in a single Internet communication, an
    Internet user may access websites that reside on servers in various
    states or foreign countries, communicate directly with another
    Internet user, or chat on-line with a group of Internet users
    located either in the same local exchange or in another country.
    *Id*.

[^39]: As we noted in the *GTE ADSL Tariffing Order*, xDSL-based
    technology is used to support variety of applications that are
    potentially local in nature, such as certain "work-at-home"
    applications. In the *GTE ADSL Tariffing Order*, we noted that such
    "work-at-home" applications are "intrastate" and, therefore, should
    be tariffed at the state level. *GTE ADSL Tariffing Order* at ¶ 27.

[^40]: We note that xDSL itself is not a service. Rather, xDSL is a
    technology used to provide transmission services.

[^41]: A \"telephone exchange service\" is a type of
    \"telecommunications service.\" *See Implementation of the Local
    Competition Provisions in the Telecommunications Act of 1996*, CC
    Docket No. 96-98, First Report and Order, 11 FCC Rcd 15499, 15636
    (1996) (*Local Competition Order*), motion for stay denied, 11 FCC
    Rcd 11754 (1996), Order on Reconsideration, 11 FCC Rcd 13042 (1996),
    Second Order on Reconsideration, 11 FCC Rcd 19738 (1996). The
    statutory definition of \"telecommunications service\" requires the
    offering of service \"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.\" 47 U.S.C. § 3(46). The
    Commission has previously stated that the phrase \"for a fee\" in
    section 3(46) of the Act \"means services rendered in exchange for
    something of value or a monetary payment.\" *Federal-State Joint
    Board on Universal Service*, CC Docket No. 96-45, Report and Order,
    FCC 97-157, at ¶ 784 (rel. May 8, 1997), Erratum, CC Docket No. 96-
    45, FCC 97-157 (rel. June 4, 1997).

[^42]: 47 U.S.C. § 153(47)(A). The United States Court of Appeals for
    the Fourth Circuit explains that \"telephone exchange service\" is a
    \"statutory term of art \... \[that\] means service within a
    discrete local exchange system\...." *North Carolina Util. Comm\'n
    v. FCC*, 552 F.2d 1036, 1045 Cir.1976, *cert. denied*, 434 U.S. 874
    (1977). The term \"exchange service\" generally refers to service
    within local calling areas which is covered by an exchange service
    charge, as distinct from \"toll service\" between exchanges for
    which there is a separate additional charge. *See In the Matter of
    Declaratory Ruling on the Application of Section 2(b)(2) of the
    Communications Act of 1934 to Bell Operating Companies*, CC Docket
    No. 85-197, FCC 87-53, Memorandum Opinion And Order, 2 FCC Rcd 1750,
    at ¶ 27 n.47.

[^43]: 47 U.S.C. § 153(47)(B).

[^44]: *Advanced Services Order* at ¶ 41 (citing Comments of Senators
    Stevens and Burns, *Federal-State Joint Board on Universal Service*,
    CC Docket No. 96-45 (*January 1998 Report to Congress*) (filed Jan.
    26, 1998), at 2, n.1).

[^45]: U S WEST Brief at 19 (citing 47 U.S.C. § 153(47)(A).

[^46]: U S WEST Brief at 19-20 (citing *BellSouth Louisiana II Order*,
    13 FCC Rcd. At 20622; *General Tel. Co. of Calif.*, 13 FCC Rcd. 448,
    460 (1968); *Offshore Tel. Co.*, 3 FCC Rcd. 4137, 4142 (1988).

[^47]: U S WEST Brief at 19 (citing *GTE ADSL Order*, 13 FCC Rcd. At
    22470-72; *Bell Atlantic Tel. Cos.*, 13 FCC Rcd. 23667, 23668
    (1998)). U S WEST contends, for example, that DSL-based services do
    not originate and terminate within the equivalent of a local
    exchange area, but instead terminate at destinations located around
    the world. U S WEST further argues that, in contrast to traditional
    telephone exchange service, DSL-based services do not interconnect
    with the traditional circuit-switched network and, therefore, do not
    permit "ubiquitous local intercommunication." U S WEST Brief at
    19-20. Finally, US WEST contends that DSL services are not covered
    by the exchange service charge. U S WEST Brief at 22.

[^48]: U S WEST Brief at 24.

[^49]: U S WEST Brief at 23-24.

[^50]: U S WEST Brief at 24 (citing *Local Competition Order*, 11 FCC
    Rcd. at 15999-16000).

[^51]: U S WEST Brief at 25 (citing Federal-State Joint Board on
    Universal Service, 13 FCC Rcd. 11501, 11528 (1998)).

[^52]: *Midwest Corp.*, 53 FCC.2d 294, 300 (1975); *Offshore Tel. Co. v.
    South Cent. Bell Tel. Co.*, 6 FCC Rcd. 2286, 2287 (1991); *Domestic
    Public Radio Svc.*, 76 FCC.2d 273, 281 (1980); *Application of
    BellSouth Corp. for Provision of In-Region, InterLATA Services in
    Louisiana*, 13 FCC Rcd. 20599, 20621 (1998).

[^53]: *Advanced Services Memorandum Opinion and Order,* 13 FCC Rcd at
    24032, ¶ 41. *See also* Cable and Wireless Reply Comments at 5.

[^54]: *See e.g.,* CoreComm Comments at 8.

[^55]: *In the Matter of International Business Machines Corp. Petition
    for Declaratory Ruling that Southern Bell Telephone and Telegraph
    Company Offer its Local Area Data Transport Service on an Unbundled
    and Detariffed Basis Pursuant to Section 64.702 of the Commission's
    Rules*, FCC 86-122, ENF 83-34, Memorandum Opinion and Order on
    Reconsideration (1986); s*ee also* *Advanced Services Order* at ¶ 47
    (noting that the interconnection obligations set forth in section
    251 apply equally to voice and data services). Some commenters point
    out that at least four state commissions have concluded that certain
    packet-switched services, such as frame-relay service, constitute
    "telephone exchange services," within the meaning of the Act. *See
    e.g.,* Joint CLEC Commenters Comments at 17-18.

[^56]: *See* U S WEST Brief at 7 (citing Harry Newton, [Newton's Telecom
    Dictionary]{.smallcaps} 301 (15^th^ ed. 1999).

[^57]: We note that in the "pre-switching" era, plugs and cords, not
    circuit switches, were used to provide the original "telephone
    service, and this original telephone service actually established a
    "private line" between two parties. This was the typical arrangement
    in 1934, the year of the adoption of the original Communications
    Act.

[^58]: *BellSouth Louisiana II Order* at ¶ 30 & n.68 (citing H. Newton,
    [Newton's Telecom Dictionary]{.smallcaps} (1998) at 277.

[^59]: *See In the Matter of General Telephone Company Of California
    (formerly California Water and Telephone Company) The Associated
    Bell System Companies; The General Telephone System And United
    Utilities, Inc. Companies Applicability of Section 214 of the
    Communications Act with Regard to Tariffs for ChannelService for Use
    by Community Antenna Television Systems,* Docket No. 17333, FCC
    68-658, 13 Rad. Reg. 2d (P & F) 667, Decision, at ¶ 24.
    ("Manifestly, the phrase \[telephone exchange service\] is intended
    primarily to apply to a telephone or comparable service involving
    \'intercommunication,\' *i.e.*, a two-way communication, not the
    one-way transmission of signals which takes place with respect to
    CATV channel service".).

[^60]: *Offshore Tel. Co.*, 3 FCC Rcd. 4137, 4142 (1988); see also
    *BellSouth Louisiana II Order*, 13 FCC Rcd. at 20621 (noting that
    telephone exchange service involves "a central switching complex
    which interconnects all subscribers within a geographic area"); *see
    also General Tel. Co. of Cal.*, 13 FCC 2d 448, 460, ¶ 24 (1968)
    ("Manifestly, the phrase \[telephone exchange service\] is intended
    primarily to apply to a telephone or comparable service involving
    \'intercommunication,\' *i.e.*, a two-way communication, not the
    one-way transmission of signals which takes place with respect to
    CATV channel service".).

[^61]: *Midwest Corp.* involved a one-way television service used by
    commercial and institutional subscribers for the simultaneous
    reception of specialized communications. *Midwest Corp.* 53 FCC 2d
    at 300, ¶ 10. *Cox Cable Communications* involved digital
    transmission services (DTS) offered on a non-switched basis to
    particular institutions and private businesses, rather than services
    offered to the public indiscriminately. Unlike non-switched, private
    line type services, DSL-based services involve packet switching,
    which allows DSL subscribers to communicate with any other
    subscriber on the packet-switched network. In addition to the
    services being offered over private lines, the cases cited by U S
    WEST involved factual circumstances substantially different from
    those here. *Offshore Telephone*, for example, involved a dispute
    relating to pre-divestiture toll sharing, in which Offshore, a
    specialized radio communications carrier, complained that AT&T had
    engaged in unlawful discrimination by refusing to enter into toll
    sharing arrangements with Offshore while, at the same time,
    extending such arrangements to local exchange carriers. The
    Commission found that Offshore had failed to prove that it was a
    local exchange carrier and, therefore, was not similarly situated
    with local exchange carriers participating in the toll sharing. The
    Commission found it relevant that: (1) "Offshore's subscribers were
    a limited group of specialized business customers that used
    dedicated private lines to make long distance calls to and from
    offshore rigs and platforms;" (2) Offshore was not certified as a
    local exchange carrier; (3) Offshore classified its revenues as
    private line service revenues derived from interstate toll, not
    "local service revenues;" and (4) Offshore did not itself provide
    exchange switching. *Offshore at ¶ 11.* In contrast the record in
    the instant proceeding indicates that providers of xDSL-based
    services are certified as local exchange carriers and serve a broad
    base of customers. *See e.g.,* MGC Communications Comments at 1;
    DSLnet Comments at 2. Moreover, such carriers typically have
    deployed their own packet-switched networks and use their own
    facilities to route their subscribers' communications.

[^62]: 47 C.F.R. § 21.2.

[^63]: *See* Joint CLEC Commenters Comments at 9 (noting that setting up
    a PVC between two end points is a keyboard operation that takes
    seven minutes or less).

[^64]: *See* Joint CLEC Commenters Comments at 9 n.8 (stating that,
    unlike private line service, an end-user with a PVC targeted to one
    location may use that link to reach any other end user in that
    network).

[^65]: *GTE ADSL Tariffing Order* 13 FCC Rcd at 22478, ¶ 25.

[^66]: 47 U.S.C. § 3(47)(A).

[^67]: The Webster\'s Third New International Dictionary defines the
    verb to \"subscribe\" as \"to agree to take and pay for something
    (as stock) by signing one\'s name to a formal agreement.\" A
    subscriber is defined as \"one that subscribes.\" [Webster\'s Third
    New International Dictionary]{.smallcaps} (1971 ed.); *see also I*n
    the Matter of Application by SBC Communications, Inc., Pursuant to
    Section 271 of the Communications act of 1934, As Amended, To
    Provide In-region, InterLATAa Services in Oklahoma, CC Docket No.
    97-121, FCC 97-228, 12 FCC Rcd. 8685 (rel. June 26, 1997)
    (concluding that the term \"subscribers,\" as used in section
    3(47)(A) suggests that persons receiving the service pay a fee).

[^68]: See AT&T Comments at 11, n. 11.

[^69]: *See* Level 3 Communications Comments at 5.

[^70]: [Webster's Third International Dictionary]{.smallcaps} (1976);
    *see also* MCI Comments at 18; Sprint Comments at 4; U S WEST Brief
    at 24.

[^71]: *See United States v. Haggar Apparel Company*, 119 S.Ct. 1392,
    1400 (1999) ("Here Congress has authorized the agency to issue rules
    so that the \[statute\] may be applied to unforeseen situations and
    changing circumstances in a manner consistent with general
    intent."); *see also* RCN Telecom Comments at 5-6; Level 3 Comments
    at 6.

[^72]: If section 3(47)(B) were interpreted as eliminating an
    "intercommunication" requirement, private line services would fall
    squarely within the definition of telephone exchange service, thus
    subjecting private line carriers to regulation as LECs. We do not
    find that, by amending the statute, Congress intended to extend the
    telephone exchange definition to encompass carriers that
    historically have been excluded from common carrier regulation.
    Indeed, in this regard, we agree with U S WEST that section 3(47)(B)
    was intended to expressly encompass the provision of telephone
    exchange service over facilities separate from the public switched
    network, such as packet-switching. Section 3(47)(B) provides, for
    example, that the services described therein may be provided
    "through a system of switches, transmission equipment, or *other
    facilities* (or combination thereof)."

[^73]: *Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996, Inter-Carrier Compensation for
    ISP-Bound Traffic*, CC Docket Nos. 96-98 and 99-68, , Declaratory
    Ruling and Notice of Proposed Rulemaking, 14 FCC Rcd 3689
    (1999)("*Reciprocal Compensation Order*"). In reaching the
    determination that calls to ISPs are typically exchange access, the
    Commission rejected the contention that ISP-bound traffic consists
    of "two calls," one of which typically originates and terminates
    within an exchange area, because "'both court and Commission
    decisions have considered the end-to-end nature of the
    communications more significant than the facilities used to complete
    such communications'." [Id]{.underline}. at ¶11(citations omitted).
    The Commission explained that it has consistently "rejected attempts
    to divide communications at any intermediate points of switching or
    exchanges between carriers," id. at ¶10 - 11, citing *BellSouth
    MemoryCall* (rejecting the argument that a call answered by a voice
    mail service should be treated as a call to the number dialed
    followed by an information service call from that number to the
    voice mail address); *Teleconnect* (rejecting the argument that
    Teleconnect's 800 service should be treated as a call to Teleconnect
    followed by a call from Teleconnect to the number dialed);
    *Southwestern Bell* (rejecting the argument that a credit card call
    should be treated as a call from the card user to an interexchange
    carrier followed by a second call). *See Petition for Emergency
    Relief and Declaratory Ruling Filed by BellSouth Corporation*, 7 FCC
    Rcd 1619 (1992)("*BellSouth MemoryCall"); Teleconnect Co. v. Bell
    Telephone Co. of Penn.*, E-88-83, 10 FCC Rcd 1626
    (1995)("*Teleconnect*"), *aff'd sub nom. Southwestern Bell Tel. Co.
    v. FCC*, 116 F.3d 593 (D.C. Cir. 1997); and *In the Matter of
    Southwestern Bell Tel. Co*., CC Docket No. 88-180, Order Designating
    Issues for Investigation, 3 FCC Rcd 2339, 2341 (1988) ("Southwestern
    Bell")

[^74]: See Federal -- State Joint Board on Universal Service, CC Docket
    No. 96-45, *Report to Congress*, 13 FCC Rcd at 11540, ¶ 81
    (1998)(hereinafter "Universal Service Report to Congress").

[^75]: Id. at 13 FCC Rcd 11532-11533, ¶ 66.

[^76]: Id. at 11536, ¶73. In fact, a service would not satisfy the
    definition of "information service" unless it had an underlying
    "telecommunications" component. Further, the telecommunications
    inputs underlying Internet services are subject to the universal
    service contribution mechanism. As the Commission has previously
    explained, "Companies that are in the business of offering basic
    interstate telecommunications functionality to end users are
    'telecommunications carriers," and therefore are covered under the
    relevant provisions of sections 251 and 254 of the Act. Id. at ¶105

[^77]: These services are "telephone exchange service" when they
    originate and terminate within an exchange area and "exchange
    access" when they originate in one exchange and terminate in
    another. In the *Reciprocal Compensation Order*, we stated that ISPs
    are "users of access service*."Reciprocal Compensation Order at
    ¶17.* We did not mean to suggest there that calls involving ISPs are
    never "telephone exchange service." To the contrary, we expressly
    recognized that "ISP-bound traffic is jurisdictionally mixed" (*id*.
    at ¶19). In concluding in the *Reciprocal Compensation Order* that
    ISP-bound traffic is not subject to section 251(b)(5), we were
    focusing on the "substantial portion of Internet traffic" that
    "involves accessing interstate or foreign websites" (*id*. at ¶18).
    In particular, we rejected the argument that ISP-bound traffic must
    be subject to section 251(b)(5) because *all* ISP-bound traffic
    allegedly consists of "two calls." Consistent with Commission
    precedent, in the *Reciprocal Compensation Order* we rejected the
    "two-call" argument and determined that a call from an end users
    subscriber to an Internet destination constitutes but a single
    call*. See supra*, note 69.

[^78]: 47 U.S.C. §(3)(48).

[^79]: SBC Comments at 9; GTE Reply Comments at 8.

[^80]: *Universal Service Report to Congress*, 13 FCC Rcd at 11520, ¶
    39.

[^81]: US WEST Comments at 8.

[^82]: In addition, Part 68 of the Commission's rules adopts an
    expansive interpretation of equipment connected to the Public
    Switched Telephone Network to included a broad array of customer
    premesis equipment in addition to analog telephones. *See e.g.,* 47
    C.F.R. 68.308; Paradyne Corporation Petition for Waiver of the
    Signal Power Limitations contained in Section 68.308(e) of the
    Commission's Rules, *Order*, File Nos.: NSD-L-98-93, DA 99-599 (rel.
    March 29, 1999). *See* CoreComm Comments at 8; Rhythms Comments at
    6.

[^83]: *See* Federal State Joint Board on Universal Service, *Report and
    Order*, 12 FCC Rcd. 8776, 8802-8803 (noting the importance of
    competitive and technological neutrality to promote competition).

[^84]: US WEST Comments at 8.

[^85]: *See* US WEST Communications, Inc. Reply Memorandum in Support of
    its Proposed Amendment Language, Arizona Corporation Commission
    Docket No. T-0321A-989-0406 (filed May 6, 1999) at 3.

[^86]: See In the Matter of Independent Data Communications
    Manufacturers Ass'n, Inc. Petition for Declaratory Ruling that
    AT&T's InterSpan Frame Relay Service is a Basic Service and AT&T Co.
    Petition for Declaratory Ruling that All ISCs be Subject to the
    ommission's Decision on the IDCMA Petition, DA 95-2190, 10 FCC Rcd
    13717 (1995) (*Frame Relay Order*) at para 6.

[^87]: *Implementation of the Non-Accounting Safeguards of Section 271
    and 272 of the Communications Act of 1934*, First Report and Order
    and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905 (1996).

[^88]: *Local Competition Order*, 11 FCC Rcd at 15934-35, ¶ 873.

[^89]: *MTS and WATS Markets Structure Order*, 97 FCC 2d at 711, ¶ 78.

[^90]: *Id*.

[^91]: 2 FCC Rcd at 4305, ¶ 2, 4306, ¶ 7; *see also* 3 FCC Rcd at 2631,
    ¶ 2 (referring to "certain classes of exchange access users,
    including enhanced service providers").

[^92]: *GTE ADSL Tariffing Order*, 13 FCC Rcd at 22478, ¶ 21.

[^93]: *Local Competition Order*, 11 FCC Rcd at 15934-35, ¶ 873.

[^94]: *See, e.g.*, *Goodyear Atomic Corp. v. Miller*, 486 U.S. 174,
    184-85 (1988)("We generally assume that Congress is knowledgeable
    about existing law pertinent to the legislation it enacts.").

[^95]: *GTE ADSL Tariffing Order* 13 FCC Rcd at 22478, ¶ 24.

[^96]: US WEST Comments at 8.

[^97]: SBC Comments at 8; GTE Comments at 8-11.

[^98]: AOL Reply Comments at 11; CoreComm Comments at 13, n.35; RCN
    Comments at 5-6; MCI WorldCom Comments at 14-16; Level 3 Comments at
    8-9; Focal Comments at 10-11.

[^99]: In addition to our disagreement with US WEST as to the
    significance of the MFJ terminology, we question US WEST's
    underlying premise that the MFJ court considered "information
    access" to be a category separate and distinct from telephone
    exchange services and exchange access. In that regard, we note that
    the MFJ itself defined information access as "the provision of
    specialized exchange telecommunications services by a BOC in an
    exchange area...," thus indicating that information access was but a
    subcategory of a broader category of services. *See United States v.
    American Tel. & Tel. Co.,* 552 F. Supp. 131 (D.D.C 1982), *aff'd sub
    nom. Maryland v. United States*, 460 U.S. 1001 (1983).

[^100]: *See, e.g. United States v. Western Electric Co*., 741 F.Supp.
    1,3 (D.D.C. 1988) ("All information services are provided directly
    via the telecommunications network. The Operating Companies would
    therefore have the same incentives and the same ability to
    discriminate against competing information service providers that
    they would have with respect to competing interexchange carriers").

[^101]: ^,^

[^102]: *See, e.g., supra* at para. 24 (noting that "a customer must
    designate the ISP or third party to whom his or her high-speed data
    transmissions are directed").

[^103]: ^.^

[^104]: *See* Separate Statement of Commissioner Harold W.
    Furchtgott-Roth, *Implementation of the Local Competition Provisions
    in the Telecommunications Act of 1996, Inter-Carrier Compensation
    for ISP-Bound Traffic*, 14 FCC Rcd. 3689 (1999)**.**

[^105]: ^.^

[^106]: ^.^

[^107]: *See, e.g.,* Universal Service Report to Congress, 13 FCC Rcd
    11501, 11522-23 (1998) (describing prior conclusions that ISPs do
    not to offer \"telecommunications service\" and thus are not
    \"telecommunications carriers\").