60222 Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 

C. Regulatory Flexibility Act 

This final rule is not required to be 

published in the Federal Register for 

notice and comment; therefore, the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., does not apply. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FTR do not impose recordkeeping or 

information collection requirements, or 

the collection of information from 

offerors, contractors, or members of the 

public that require the approval of the 

Office of Management and Budget under 

44 U.S.C. 3501, et seq. 

E. Small Business Regulatory 

Enforcement Fairness Act 

This final rule is also exempt from 

congressional review prescribed under 5 

U.S.C. 801 since it relates solely to 

agency management and personnel. 

List of Subjects in 41 CFR Parts 301–11 

and 301–74 

Government employees, Travel and 

transportation expenses. 

Dated: October 4, 2005. 

Stephen A. Perry, 

Administrator of General Services. 

■ For the reasons set forth in the 

preamble, under 5 U.S.C. 5701–5709, 

GSA amends 41 CFR parts 301–11 and 

301–74 as set forth below: 

PART 301–11—PER DIEM EXPENSES 

■ 1. The authority citation for 41 CFR 

part 301–11 continues to read as 

follows: 

Authority: 5 U.S.C. 5707. 

■ 2. Revise section 301–11.18 to read as 

follows: 

§ 301–11.18 What M&IE rate will I receive 

if a meal(s) is furnished by the Government 

or is included in the registration fee? 

Your M&IE rate must be adjusted for 

a meal(s) furnished to you by the 

Government (including meals furnished 

under the authority of Part 304 of this 

Title) by deducting the appropriate 

amount shown in the chart in this 

section for travel within CONUS and the 

chart in Appendix B of this Chapter for 

meal deductions for OCONUS and 

foreign travel. The total amount of 

deductions made will not cause you to 

receive less than the amount allowed for 

incidental expenses. 

Total M&IE $39 $44 $49 $54 $59 $64 

Breakfast ...................................................................... 7 8 9 10 11 12 

Lunch ........................................................................... 11 12 13 15 16 18 

Dinner ........................................................................... 18 21 24 26 29 31 

Incidentals .................................................................... 3 3 3 3 3 3 

PART 301–74—CONFERENCE 

PLANNING 

■ 3. The authority citation for 41 CFR 

part 301–74 continues to read as 

follows: 

Authority: 5 U.S.C. 5707. 

§ 301–74.21 What is the applicable M&IE 

rate when meals or light refreshments are 

furnished by the Government or are 

included in the registration fee? 

■ 4. Amend § 301–74.21 by revising the 

section heading as set forth above and 

removing from the introductory 

paragraph of the response ‘‘at nominal 

or no cost’’. 

[FR Doc. 05–20690 Filed 10–14–05; 8:45 am] 

BILLING CODE 6820–14–S 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 51, 63, 64 

[CC Docket Nos. 02–33; 01–337; 95–20; 98–

10; WC Docket No. 04–242; FCC 05–150] 

Appropriate Framework for Broadband 

Access to the Internet Over Wireline 

Facilities 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) establishes a regulatory 

framework for facilities-based providers 

of wireline broadband Internet access 

service. Under this framework, the 

Commission determines that facilitiesbased wireline broadband Internet 

access service is an information service, 

and that facilities-based providers of the 

service are no longer required to 

separate out the transmission 

component (i.e., transmission in excess 

of 200 kilobits per second (kbps) in at 

least one direction) of wireline 

broadband Internet access services as a 

stand-alone telecommunications service 

under Title II of the Communications 

Act of 1934, as amended (Act), subject 

to a one-year transition period, during 

which providers must continue to 

provide existing wireline broadband 

Internet access transmission offerings, 

on a grandfathered basis, to unaffiliated 

information service providers (ISPs). 

After the transition period, facilitiesbased wireline broadband Internet 

access service providers are permitted to 

offer broadband Internet access services 

on a common carrier basis under Title 

II or on a non-common carrier basis. In 

addition, the Bell Operating Companies 

(BOCs) are immediately relieved of all 

requirements associated with the 

Commission’s Computer Inquiry Orders 

with respect to wireline broadband 

Internet access services. The document 

further concludes that the broadband 

transmission component of wireline 

broadband Internet access service is not 

a telecommunication service under the 

Act. It also addresses other important 

areas relating to the provision of 

broadband Internet access services. 

Overall, this new regulatory framework 

encourages the ubiquitous availability of 

broadband to all Americans by 

removing outdated regulations, 

developing consistent regulations across 

broadband platforms, and encouraging 

broadband investment and deployment. 

DATES: Effective Date: This rule is 

effective November 16, 2005. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Jodie May or William Kehoe, AttorneyAdvisors, Competition Policy Division, 

Wireline Competition Bureau, at (202) 

418–1580. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order (Order) in CC Docket Nos. 

02–33, 01–337, 95–20, 98–10; WC 

Docket No. 04–242; FCC 05–150, 

adopted August 5, 2005, and released 

September 23, 2005. The complete text 

of this document is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center, Portals II, 445 12th 

Street, SW., Room CY–A257, 

Washington, DC 20554. This document 

may also be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 60223 

Washington, DC 20554, telephone (800) 

378–3160 or (202) 863–2893, facsimile 

(202) 863–2898, or via e-mail at 

www.bcpiweb.com. It is also available 

on the Commission’s Web site at http:// 

www.fcc.gov. 

Synopsis of the First Report and Order 

(Order) 

1. Background. The Communications 

Act does not address directly how 

broadband Internet access service 

should be classified or regulated. The 

Act does, however, provide the 

Commission express directives with 

respect to encouraging broadband 

deployment, generally, and promoting 

and preserving a freely competitive 

Internet market, specifically. 

Consequently, the Commission initiated 

a Notice of Proposed Rulemaking 

(Wireline Broadband Notice) in 2002 (67 

FR 9232, Feb. 28, 2002) to seek 

comment on the appropriate regulatory 

framework for wireline broadband 

Internet access service. 

2. Wireline broadband Internet access 

service, for purposes of this proceeding, 

is a service that uses existing or future 

wireline facilities of the telephone 

network to provide subscribers with 

Internet access capabilities. The term 

‘‘Internet access service’’ refers to a 

service that always and necessarily 

combines computer processing, 

information provision, and computer 

interactivity with data transport, 

enabling end users to run a variety of 

applications such as e-mail, and access 

Web pages and newsgroups. Wireline 

broadband Internet access service, like 

cable modem service, is a functionally 

integrated, finished service that 

inextricably intertwines informationprocessing capabilities with data 

transmission such that the consumer 

always uses them as a unitary service. 

The Commission ruled in 2002 that 

cable modem service was an 

information service under the Act (67 

FR 18907, April 17, 2002). The U.S. 

Supreme Court affirmed that ruling in 

National Cable & Telecommunications 

Ass’n v. Brand X Internet Services, 125 

S. Ct. 2688 (2005) (Brand X). 

3. As we explained in the Wireline 

Broadband Notice, providers of wireline 

broadband Internet access service offer 

subscribers the ability to run a variety 

of applications that fit under the 

characteristics stated in the information 

service definition under the Act. These 

characteristics distinguish wireline 

broadband Internet access service from 

other wireline broadband services, such 

as stand-alone ATM service, frame 

relay, gigabit Ethernet service, and other 

high-capacity special access services, 

that carriers and end users have 

traditionally used for basic transmission 

purposes. That is, these services lack the 

key characteristics of wireline 

broadband Internet access service—they 

do not inextricably intertwine 

transmission with informationprocessing capabilities. Because carriers 

and end users typically use these 

services for basic transmission 

purposes, these services are 

telecommunications services under the 

statutory definitions. These broadband 

telecommunications services remain 

subject to current Title II requirements. 

4. In the Wireline Broadband Notice, 

the Commission tentatively concluded 

that wireline broadband Internet access 

service is an information service when 

provided over an entity’s own facilities, 

and that the underlying transmission 

component of such service constituted 

‘‘telecommunications’’ and not a 

‘‘telecommunications service’’ under the 

Act. The Commission invited comment 

on these tentative conclusions and its 

prior conclusion that ‘‘an entity is 

providing a ‘telecommunications 

service’ to the extent that such entity 

provides only broadband transmission 

service on a stand-alone basis, without 

a broadband Internet Access service.’’

Finally, the Commission sought 

comment on the extent to which any 

actions it might take in this proceeding 

would affect other regulatory 

obligations. 

5. In addressing the issues before us, 

we draw from the records of several 

proceedings, including the Wireline 

Broadband Notice and the Notice of 

Proposed Rulemaking in the Incumbent 

LEC Broadband proceeding (67 FR 1945, 

Jan. 15, 2002), in which the Commission 

invited comment on technological and 

market-related issues relating to our 

tariffing rules for incumbent LECs’

broadband telecommunications 

services. Consistent with the scope of 

the Wireline Broadband Notice, we 

restrict our decisions in this Order to 

only wireline broadband Internet access 

services and those wireline broadband 

technologies that have been utilized for 

such Internet access services. 

6. Regulatory Classification of 

Wireline Broadband Internet Access 

Service: We affirm our tentative 

conclusion ‘‘that wireline broadband 

Internet access service provided over a 

provider’s own facilities is an 

information service.’’ This classification 

is consistent both with the 

Commission’s classification of cable 

modem service, as affirmed by the 

Supreme Court in Brand X, and with the 

Commission’s earlier determination in 

its Report to Congress (Federal-State 

Joint Board on Universal Service, Report 

to Congress, CC Docket No. 96–45, 13 

FCC Rcd 11501 (1998) (63 FR 43088, 

August 12, 1998)) that Internet access 

service is an information service. 

Applying the definitions of 

‘‘information service,’’

‘‘telecommunications,’’ and 

‘‘telecommunications service’’ in the 

Act, we conclude that wireline 

broadband Internet access service 

provided over a provider’s own facilities 

is appropriately classified as an 

information service because its 

providers offer a single, integrated 

service (i.e., Internet access) to end 

users. That is, like cable modem service 

(which is usually provided over the 

provider’s own facilities), wireline 

broadband 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). These applications 

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. 

7. The capabilities of wireline 

broadband Internet access service 

demonstrate that this service, like cable 

modem service, provides end users 

more than pure transmission, ‘‘between 

or among points selected by the user, of 

information of the user’s choosing, 

without change in the form or content 

of the information as sent and 

received.’’ Because wireline broadband 

Internet access service inextricably 

combines the offering of powerful 

computer capabilities with 

telecommunications, we conclude that 

it falls within the class of services 

identified in the Act as ‘‘information 

services.’’ The information service 

classification applies regardless of 

whether subscribers use all of the 

functions and capabilities provided as 

part of the service (e.g., e-mail or Webhosting), and whether every wireline 

broadband Internet access service 

provider offers each function and 

capability that could be included in that 

service. Indeed, as with cable modem 

service, an end user of wireline 

broadband Internet access service 

cannot reach a third party’s Web site 

without access to the Domain Naming 

Service (DNS) capability ‘‘which (among 

other things) matches the Web site 

address the end user types into his 

browser (or ‘‘clicks’’ on with his mouse) 

with the IP address of the Web page’s 

host server.’’ The end user therefore 

60224 Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 

receives more than transparent 

transmission whenever he or she 

accesses the Internet. 

8. There is no reason to classify 

wireline broadband Internet access 

services differently depending on who 

owns the transmission facilities. From 

the end user’s perspective, an 

information service is being offered 

regardless of whether a wireline 

broadband Internet access service 

provider self-provides the transmission 

component or provides the service over 

transmission facilities that it does not 

own. As the Commission indicated in 

its Report to Congress, what matters is 

the finished product made available 

through a service rather than the 

facilities used to provide it. The end 

user of wireline broadband Internet 

access service receives an integrated 

package of transmission and 

information processing capabilities from 

the provider, and the identity of the 

owner of the transmission facilities does 

not affect the nature of the service to the 

end user. Thus, in addition to affirming 

our tentative conclusion above ‘‘that 

wireline broadband Internet access 

service provided over a provider’s own 

facilities is an information service,’’ we 

also make clear that wireline broadband 

Internet access service is an information 

service when the provider of the retail 

service does not provide the service 

over its own transmission facilities. Not 

only is the classification of wireline 

broadband Internet access service as an 

information service consistent with 

Brand X, but this classification, in our 

view, best facilitates the goals of the 

Act, including promoting the ubiquitous 

availability of broadband Internet access 

services to all Americans. 

9. Regulation of Wireline Broadband 

Internet Access Service Providers. 

Wireline broadband Internet access 

services provided by facilities-based 

carriers are currently governed by rules 

established in the Commission’s 

Computer Inquiry proceedings. The 

Commission created a framework in 

Computer II (Amendment of Section 

64.702 of the Commission’s Rules and 

Regulations (Computer II), 77 FCC 2d 

384 (1980)(77 FCC 2d 384 1980 

(subsequent citations omitted)) that 

defined and distinguished between 

‘‘basic services’’ and ‘‘enhanced 

services.’’ It determined that enhanced 

services were not within the scope of its 

Title II jurisdiction but rather were 

within its ancillary jurisdiction under 

Title I. Pursuant to its ancillary 

jurisdiction, the Commission required 

facilities-based common carriers to 

provide the basic transmission services 

underlying their enhanced services on a 

nondiscriminatory basis pursuant to 

tariffs governed by Title II of the Act. 

These carriers thus offered the 

underlying basic service at the same 

prices, terms, and conditions, to all 

enhanced service providers, including 

their own enhanced services operations. 

10. The Commission subsequently 

determined that the cost of decreased 

efficiency and innovation imposed by 

the structural safeguards of Computer II 

outweighed their benefits. The 

Commission therefore replaced 

structural separation with a regime of 

nonstructural safeguards in its 

Computer III decisions (Amendment of 

Section 64.702 of the Commission’s 

Rules and Regulations, CC Docket No. 

85–229, Phase I, 104 FCC 2d 958 (1986) 

(51 FR 24350, July 3, 1986) (subsequent 

citations omitted)). This framework 

maintained the existing basic and 

enhanced service categories and 

adopted comparably efficient 

interconnection (CEI) and open network 

architecture (ONA) requirements as a 

replacement for the Computer II 

structural separation requirements for 

AT&T and the BOCs. When Congress 

enacted the 1996 Act, it created new 

statutory terms (i.e., ‘‘information 

service’’ and ‘‘telecommunications 

service’’) that substantially incorporated 

the dichotomy between basic and 

enhanced services into the 

Communications Act. As we noted 

above, although the 1996 Act uses 

‘‘information service’’ and 

‘‘telecommunications service’’ instead 

of ‘‘enhanced service’’ and ‘‘basic 

service,’’ the Commission has 

previously determined that Congress 

intended the statutory categories to 

parallel the categories the Commission 

established in the Computer Inquiry 

proceeding. More specifically, the 

Commission found that all of the 

services that the Commission has 

previously considered to be enhanced 

services are ‘‘information services.’’

11. The Computer II obligation that all 

facilities-based wireline carriers that 

own common carrier transmission 

facilities and provide enhanced services 

must acquire transmission capacity 

pursuant to the same prices, terms, and 

conditions reflected in their tariffs when 

their own facilities are utilized has been 

applied exclusively to traditional 

wireline services and facilities to date. 

By contrast, the Computer II obligations 

do not apply to cable modem service 

providers or to facilities-based enhanced 

services providers other than traditional 

wireline carriers. The Commission’s 

structural separation, CEI, and ONA 

rules apply only to the BOCs. 

12. Elimination of the Computer 

Inquiry Requirements. The Order 

explains that the technology used to 

build networks, and the purposes for 

which they are built, are fundamentally 

changing. These changes are rapidly 

breaking down the formerly rigid 

barriers that separated one network from 

another. There are numerous 

technologies and network designs that 

form, or potentially could form, part of 

the broadband telecommunications 

infrastructure of the 21st century. Cable 

operators have deployed cable modem 

technology. Mobile wireless providers 

are increasingly offering high-speed 

Internet access using technologies like 

Evolution-Data Optimized (EV–DO) 

technology. Satellite providers have 

deployed both Ku-band and even more 

advanced Ka-band technology that can 

offer high-speed Internet access service 

throughout the nation. Fixed wireless 

operators are planning to use licensed 

and unlicensed spectrum to deliver 

broadband services, and are developing 

new technologies that promise 

ubiquitous service and greater 

bandwidth. Other companies are 

exploring the use of power lines and 

cables placed in gas lines to provide 

broadband services. The nation’s 

wireline infrastructure also is changing 

and is now using digital, packet-based 

technology to deliver a wider range of 

services. The Order further states that 

network platforms therefore will be 

multi-purpose in nature and more 

application-based, rather than existing 

for a single, unitary, technologically 

specific purpose. More generally, the 

erosion of barriers between various 

networks and the limitations inherent in 

those barriers will lead to greater 

capacity for innovation to offer new 

services and products. Both the 

providers of network platforms and 

those that utilize the platforms are in a 

position to capitalize on these changes. 

In addition, as with any evolving 

technology, new products and providers 

will continue to emerge to complement 

existing market offerings and 

participants; and these offerings will 

grow over time as consumers demand 

even more advanced services, with the 

result that technological growth and 

development continue on an upward 

spiral. 

13. We decline to continue to impose 

any Computer Inquiry requirements on 

facilities-based carriers in their 

provision of wireline broadband 

Internet access service. Consequently, 

BOCs are immediately relieved of the 

separate subsidiary, CEI, and ONA 

obligations with respect to wireline 

broadband Internet access services. In 

addition, subject to a one-year transition 

period for existing wireline broadband 

transmission services, all wireline 

Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 60225 

broadband Internet access service 

providers are no longer subject to the 

Computer II requirement to separate out 

the underlying transmission from 

wireline broadband Internet access 

service and offer it on a common carrier 

basis. 

14. We agree with those commenters 

that argue that the Computer Inquiry 

obligations are inappropriate and 

unnecessary for today’s wireline 

broadband Internet access market. As 

these parties observe, the Computer 

Inquiry rules were developed before 

separate and different broadband 

technologies began to emerge and 

compete for the same customers. 

Further, these rules were adopted based 

on assumptions associated with 

narrowband services, single purpose 

network platforms, and circuit-switched 

technology. Notably, even commenters 

that argue for a continued access 

requirement generally acknowledge that 

the current structural separation, CEI, 

and ONA requirements are outmoded 

and should be eliminated or replaced. 

Indeed, the record provides little, if any, 

support for retaining the structural 

separation option of Computer II or for 

conditioning BOC structural relief on 

compliance with a detailed set of 

regulatory requirements such as the CEI 

or ONA requirements. Instead, 

commenters arguing for continued 

regulation of wireline broadband 

Internet access service providers focus 

primarily on the core nondiscriminatory 

access obligation of Computer II, urging 

that we, at a minimum, should retain a 

common carrier transmission access 

requirement in some form. In evaluating 

these arguments, we are mindful that 

one of the Commission’s most critical 

functions is to adapt regulation to 

changing technology and competitive 

conditions to accomplish its mandates 

under the Act. 

15. In determining whether to 

eliminate the Computer Inquiry 

requirements (e.g., the separate 

subsidiary, nondiscriminatory access to 

transmission, CEI, and ONA obligations) 

for facilities-based providers of wireline 

broadband Internet access services, we 

weigh the benefits of these requirements 

against their costs in accordance with 

our obligations under the Act. This 

determination is informed not only by 

our understanding of the current 

broadband Internet access market, but 

what our predictive judgment tells 

about how that market is likely to 

develop. It is critical to factor in these 

future expectations because the 

broadband market is evolving rapidly. 

At the time the Computer Inquiry rules 

were adopted, there was an implicit, if 

not explicit, assumption that the 

incumbent LEC wireline platform would 

remain the only network platform 

available to enhanced services 

providers. Regulated access to wireline 

transmission thus was essential for a 

competitive information services market 

to flourish. 

16. The characteristics of the 

broadband market, as well as evidence 

that facilities-based wireline carriers 

have incentives to make, and indeed 

already make, broadband transmission 

capacity available to ISPs, absent 

regulation, are factors that influence our 

analysis in determining whether such 

regulation is still necessary. Moreover, 

this regulation can have a significant 

impact on the ability of wireline 

platform providers to develop and 

deploy innovative broadband 

capabilities that respond to market 

demands. The record shows that the 

additional costs of an access mandate 

diminish a carrier’s incentive and 

ability to invest in and deploy 

broadband infrastructure investment. 

We find this negative impact on 

deployment and innovation particularly 

troubling in view of Congress’ clear and 

express policy goal of ensuring 

broadband deployment, and its directive 

that we remove barriers to that 

deployment, if possible, consistent with 

our other obligations under the Act. It 

is precisely this negative impact on 

broadband infrastructure that led the 

Commission to eliminate other 

broadband-related regulation over the 

past two years. These factors, when 

weighed against the benefits of 

continuing these regulations, render a 

different policy result than the judgment 

reached at the time the Computer 

Inquiry rules were adopted. 

17. As outlined in the Wireline 

Broadband Notice, we seek to adopt a 

comprehensive policy that ensures, 

consistent with the Act in general and 

section 706 specifically, that broadband 

Internet access services are available to 

all Americans and that undue regulation 

does not constrain incentives to invest 

in and deploy the infrastructure needed 

to deliver broadband Internet access 

services. As part of this policy, we 

believe that we should regulate like 

services in a similar manner so that all 

potential investors in broadband 

network platforms, and not just a 

particular group of investors, are able to 

make market-based, rather than 

regulatory-driven, investment and 

deployment decisions. 

18. Our decision in this Order is 

consistent with the decision issued by 

the Ninth Circuit Court of Appeals in 

1994, California v. FCC, 39 F.3d 919 

(9th Cir. 1994). In that decision, the 

Ninth Circuit vacated part of the 

Commission’s Computer III ONA rules. 

According to the court, the Commission 

had failed to explain how its ‘‘diluted 

version of ONA,’’ would prevent BOCs 

from exploit[ing] their monopoly 

control over the local networks. For the 

reasons discussed herein, we determine 

that the competitive pressures and 

technological changes that have arisen 

since 1990 have reduced the BOCs’

incentive and ability to discriminate 

against unaffiliated ISPs in their 

provision of broadband Internet access 

service to the point that structural 

separation for BOC broadband Internet 

access service is no longer necessary. 

Specifically, we believe that the analysis 

in this Order that persuades us to 

eliminate not only the structural 

separation requirement, but all 

Computer Inquiry obligations, 

applicable to wireline broadband 

Internet access service provides the 

level of detail the Ninth Circuit found 

lacking in the Commission’s prior 

decision eliminating that requirement. 

19. The Order also analyzes the 

wireline broadband Internet access 

services marketplace, technological 

innovation, the opportunity for new 

services offered by wireline broadband 

Internet access service providers, the 

fact that wireline broadband 

transmission will remain available to 

ISPs, and Congress’s objectives in 

section 706 of the Act regarding 

broadband deployment to determine 

that we can eliminate a mandatory 

common carrier broadband transmission 

requirement, subject to the one year 

transitional mechanism. We also find 

that we need not retain the Computer 

Inquiry regime, or any of its individual 

requirements, to protect against 

improper cross subsidization. The 

Commission’s ratemaking methods and 

those of our state counterparts have 

changed considerably since the Ninth 

Circuit addressed the need for structural 

separation as a safeguard against crosssubsidization in 1994. We conclude that 

changes have further reduced the 

potential that the BOCs could increase 

rates for tariffed telecommunications 

services through cost shifting. Indeed, 

unlike the situation before the Ninth 

Circuit in 1994, the BOCs’ costs are no 

longer used to determine the BOCs’

price cap rates. In view of this reduced 

potential, we find that there is no need 

to retain either the Computer II 

structural separation requirement or the 

Computer III nonstructural safeguards to 

keep the BOCs from cross-subsidizing 

their broadband Internet access service 

operations with revenues from the 

telecommunications services operations. 

The benefits we anticipate from the 

60226 Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 

elimination of these structural and 

nonstructural safeguards, including the 

increased infrastructure investment that 

our new framework should generate, 

outweigh any protection against crosssubsidization that those safeguards 

provide. 

20. New Regulatory Framework for 

Wireline Broadband Internet Access 

Service Providers. We adapt our 

regulatory requirements, consistent with 

the Act, to correct for restrictions on 

wireline broadband Internet access 

service providers’ ability to incorporate 

advanced integrated technology into 

their broadband offerings, impediments 

to responding rapidly and efficiently to 

changing broadband market demands 

due to outdated existing rules, and 

constraints on broadband innovation 

and infrastructure investment. We 

eliminate the Computer Inquiry 

obligations as applied to facilities-based 

providers of wireline broadband 

Internet access service, and, in 

particular, the obligation to offer the 

transmission component of wireline 

broadband Internet access service on a 

stand-alone common carrier basis. 

Facilities-based wireline broadband 

Internet access service providers, 

subject to a one-year transition period 

which we also adopt, may choose to 

offer the transmission component of 

wireline broadband Internet access 

services to both affiliated and 

unaffiliated ISPs or others on a noncommon carrier basis or a common 

carrier basis. We incorporate this 

flexibility into our new framework to 

account for the differing business issues 

affecting different wireline broadband 

Internet access service providers. For 

example, associations of rural 

incumbent LECs have indicated that 

their members may choose to offer 

broadband Internet access transmission 

service on a common carrier basis. 

Thus, unlike previous Commission 

initiatives (e.g., the deregulation of 

CPE), we are not eliminating carriers’

ability to offer wireline broadband 

transmission on a Title II basis. Indeed, 

as we discuss below, enabling carriers to 

offer broadband Internet access 

transmission in alternative ways 

furthers our policy objectives and is 

consistent with precedent. 

21. Wireline Broadband Internet 

Access Service Providers May Offer 

Transmission Service on a NonCommon Carrier Basis or a Common 

Carrier Basis. The record demonstrates 

that allowing non-common carriage 

arrangements for wireline broadband 

transmission will best enable facilitiesbased wireline broadband Internet 

access service providers, particularly 

incumbent LECs, to embrace a marketbased approach to their business 

relationships with ISPs, providing the 

flexibility and freedom to enter into 

mutually beneficial commercial 

arrangements with particular ISPs. 

Facilities-based wireline carriers as well 

as certain portions of the ISP 

community and broadband equipment 

manufacturers agree that market-based 

commercial arrangements will better 

serve the interests of ISPs, broadband 

providers, and consumers. 

22. Non-common carriage contracts 

will permit ISPs to enter into various 

types of compensation arrangements for 

their wireline broadband Internet access 

transmission needs that may better 

accommodate their individual market 

circumstances. For example, ISPs and 

facilities-based carriers could 

experiment with revenue-sharing 

arrangements or other types of 

compensation-based arrangements 

keyed to the ISPs’ marketplace 

performance, enabling the ISPs to avoid 

a fixed monthly recurring charge (as is 

typical with tariffed offerings) for their 

transmission needs during start-up 

periods. Non-common carriage also 

enables parties to a contract to modify 

their arrangement over time as their 

respective needs and requirements 

change without the inherent delay 

associated with a tariffed offering that 

must be made available to all ISPs. 

Moreover, it encourages other types of 

commercial arrangements with ISPs, 

reflecting business models based on risk 

sharing such as joint ventures or 

partnership-type arrangements, where 

each party brings their added value, 

benefiting both the consumer (through 

the ability to obtain a new innovative 

service) and each party to the 

commercial arrangement. Such 

arrangements may also encourage 

unaffiliated ISPs to develop innovative 

applications and services that 

differentiate them from other ISPs. The 

ability to deliver such innovative 

services over their platforms in order to 

attract customers will likely motivate 

wireline facilities-based broadband 

transmission providers to negotiate 

mutually beneficial arrangements that 

enable the wireline facilities-based 

broadband transmission provider to 

share the financial rewards of bringing 

the new Internet access applications or 

services to consumers. 

23. A number of parties have 

indicated that some carriers may 

nevertheless choose to offer the 

transmission component of broadband 

Internet access service as a common 

carrier service absent the Computer 

Inquiry requirements. Other parties have 

indicated they would avail themselves 

of the opportunity to offer certain types 

of broadband Internet access 

transmission on a common carrier basis 

and other types of broadband Internet 

access transmission on a non-common 

carrier basis. Our primary goal in this 

proceeding is to facilitate broadband 

deployment in the manner that best 

promotes wireline broadband 

investment and innovation, and 

maximizes the incentives of all 

providers to deploy broadband. We find 

that we can best further this goal by 

providing all wireline broadband 

providers the flexibility to offer these 

services in the manner that makes the 

most sense as a business matter and best 

enables them to respond to the needs of 

consumers in their respective service 

areas. 

24. We therefore conclude that 

providers of wireline broadband 

Internet access service that offer that 

transmission as a telecommunications 

service after the effective date of this 

Order may do so on a permissive 

detariffing basis. Such providers thus 

may, in lieu of filing tariffs with the 

Commission setting forth the rates, 

terms, and conditions under which they 

will provide broadband Internet access 

transmission service, include those 

rates, terms, and conditions in generally 

available offerings posted on their Web 

sites. Each such provider electing not to 

tariff the broadband Internet access 

transmission that it offers as a 

telecommunications service also must 

make physical copies of its offering 

reflecting the rates, terms and 

conditions available for public 

inspection at a minimum of one place 

of business. 

25. To enable facilities-based wireline 

Internet access providers to maximize 

their ability to deploy broadband 

Internet access services and facilities in 

competition with other platform 

providers, under a regulatory framework 

that provides all market participants 

with the flexibility to determine how 

best to structure their business 

operations, facilities-based carriers are 

able to choose whether to offer wireline 

broadband Internet access transmission 

as non-common carriage or common 

carriage. In addition, to the extent they 

choose to offer that transmission as 

common carriage, they may do so either 

under tariff or on a non-tariffed basis. 

The Commission, on numerous 

occasions, has determined that a 

particular service can be offered on a 

non-common carrier or common carrier 

basis at the service provider’s option. 

Similarly, here, we conclude that it is 

appropriate to provide facilities-based 

wireline broadband Internet access 

service providers with freedom to 

determine how to provide the 

Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 60227 

broadband transmission capabilities of 

such services. 

26. In order to ensure that this flexible 

approach is consistent with statutory 

requirements, efficient, and 

administrable, we specify that a 

facilities-based wireline broadband 

Internet access provider may not 

simultaneously offer the same type of 

broadband Internet access transmission 

on both a common carrier and noncommon carrier basis. It may, however, 

choose to make available one type of 

broadband Internet access transmission 

on a common carrier basis and another 

type of such transmission on a noncommon carrier basis. Of course, any 

transmission offering that a facilitiesbased wireline broadband Internet 

access provider makes available on a 

tariffed common carrier basis will be 

subject to the terms contained in its 

tariff and, consistent with Title II of the 

Act, the provider may charge customers 

for that service only at the rates 

contained in the tariff. 

27. Some commenters request that we 

impose certain content-related 

requirements on wireline broadband 

Internet access service providers that 

would prohibit them from blocking or 

otherwise denying access to any lawful 

Internet content, applications, or 

services a consumer wishes to access. 

While we agree that actively interfering 

with consumer access to any lawful 

Internet information, products, or 

services would be inconsistent with the 

statutory goals of encouraging 

broadband deployment and preserving 

and promoting the open and 

interconnected nature of the public 

Internet, we do not find sufficient 

evidence in the record before us that 

such interference by facilities-based 

wireline broadband Internet access 

service providers or others is currently 

occurring. We therefore decline at this 

time to adopt rules prohibiting such 

interference. Instead, we find that the 

better course is to articulate principles 

recognizing the importance of consumer 

choice and competition in regard to 

accessing and using the Internet, and we 

have adopted an Internet Policy 

Statement (Appropriate Framework for 

Broadband Access to the Internet over 

Wireline Facilities, CC Docket No. 02–

33, Policy Statement, FCC 05–151 

(released September 23, 2005)) that 

outlines these principles. We intend to 

incorporate these principles into our 

ongoing policymaking activities. Should 

we see evidence that providers of 

telecommunications for Internet access 

or IP-enabled services are violating 

these principles, we will not hesitate to 

take action to address that conduct. 

28. Current Title II Unbundled 

Wireline Broadband Internet Access 

Transmission Services Must Remain 

Available During a One-Year Transition 

Period. Although we determine above 

that immediate relief for wireline 

broadband Internet access transmission 

providers is warranted, we are 

nonetheless sensitive to the fact that the 

Commission’s previous regulatory 

regime for these services has created 

reasonable reliance and expectation by 

unaffiliated ISPs on the availability of 

currently tariffed, broadband Internet 

access transmission offerings. In 

addition, we are concerned that a flashcut transition may unnecessarily disrupt 

customers’ service due to a provider’s 

inability to adapt its business practices 

so quickly. We therefore adopt a oneyear transition period, which begins on 

the effective date of this Order, in order 

to give both ISPs and facilities-based 

wireline broadband Internet access 

transmission providers sufficient time to 

adjust to our new framework. During the 

transition, facilities-based wireline 

broadband Internet access transmission 

providers must continue to honor 

existing transmission arrangements with 

their current ISP or other customers, but 

they are not required to offer such 

arrangements to new customers or to 

existing customers at new locations. If 

these arrangements are provided 

pursuant to tariffs currently on file with 

the Commission, wireline broadband 

Internet access transmission providers 

may retain these tariffs during the oneyear period, or, alternatively, they may 

cancel the tariffs pursuant to normal 

tariff cancellation procedures provided 

they honor existing wireline broadband 

Internet access transmission 

arrangements in another manner. To the 

extent facilities-based wireline 

broadband Internet access transmission 

providers have entered into any other 

common carrier transmission 

arrangements with ISP customers that 

are not subject to tariffing, these 

arrangements must also be continued 

during the one-year transition unless, of 

course, they would otherwise expire 

during the transition period pursuant to 

their pre-existing terms. Upon the 

effective date of this Order, facilitiesbased wireline broadband Internet 

access providers, including the BOCs 

and their affiliates, are no longer 

required to continue taking the existing 

common carrier transmission 

arrangements that they provide to ISPs 

as an input to their self-provided 

wireline broadband Internet access 

service. To the extent facilities-based 

carriers offer new wireline broadband 

Internet access transmission 

arrangements after the effective date of 

this Order or provide such service to 

new customers, these arrangements may 

be made available on a common carrier 

basis or a non-common carrier basis as 

set forth above. 

29. This one-year period will allow 

ISPs to continue operating under their 

current arrangements while they 

negotiate non-common carrier 

agreements with providers of wireline 

broadband Internet access transmission. 

Based on the assurances made by 

facilities-based wireline broadband 

Internet access providers and their 

stated desire to ensure that their 

platform is competitive with other 

broadband platforms, we strongly 

encourage the parties to work together 

to develop individual contracts that are 

mutually beneficial to each party. In the 

meantime, the ability to continue 

operating under existing arrangements 

for an additional one-year period during 

new contract negotiations will avoid 

unnecessary customer disruption. Such 

a transition period is consistent with 

previous decisions in which the 

Commission modified the regulatory 

framework for certain services subject to 

a transition. 

30. Discontinuation of Service. 

Section 214(a) of the Act requires that, 

prior to discontinuing any interstate or 

foreign telecommunications service, a 

telecommunications carrier obtain from 

the Commission ‘‘a certification that 

neither the present nor future public 

convenience or necessity will be 

adversely affected thereby.’’ The reasons 

that persuade us not to require that the 

transmission component of wireline 

broadband Internet access service 

continue to be offered as a 

telecommunications service under Title 

II also persuade us that discontinuance 

of the provision of common carrier 

broadband Internet access transmission 

services to existing customers would not 

adversely affect the present or future 

public convenience or necessity. 

Instead, competition from other 

broadband Internet access service 

providers and the wireline providers’

business incentives to attract ISP 

customers should ensure the continued 

availability of this transmission 

component, under reasonable rates, 

terms, and conditions. Accordingly, we 

find that the circumstances here meet 

our test for determining whether a 

telecommunications service may be 

discontinued under section 214(a). 

31. Therefore, pursuant to our rule for 

discontinuing domestic 

telecommunications services, 47 CFR 

63.71, we grant facilities-based, wireline 

broadband Internet access transmission 

providers blanket certification to 

60228 Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 

discontinue providing existing 

customers the common carrier 

broadband Internet access transmission 

services that are the subject of this 

Order, subject to the following 

conditions. First, to protect these 

customers against abrupt termination of 

service, we require that a carrier 

discontinuing common carrier 

broadband Internet access transmission 

service shall provide affected customers 

with advance notice of the 

discontinuance. Specifically, the carrier 

shall provide all affected customers 

with its name and address, the date of 

the planned discontinuance, the 

geographic areas where service will be 

discontinued, and a brief description of 

the service to be discontinued. In 

addition, on or after the date it provides 

the advance notice to its customers and 

at least 30 days prior to the date on 

which service will be discontinued, the 

carrier must file with the Commission 

notice of its intent to discontinue 

service. Carriers are not required to 

make any showing in this notice and do 

not need to obtain any additional 

permission from the Commission to 

cease service. Upon notification of 

discontinuance, the Commission 

reserves the right to take actions where 

appropriate under the circumstances to 

protect the public interest. 

32. Classification of Wireline 

Broadband Internet Access 

Transmission Component. Above, we 

affirm that wireline broadband Internet 

access service is an information service, 

and decline to continue the reflexive 

application of the Computer Inquiry 

regime to facilities-based providers of 

such service. This is not, however, the 

end of our inquiry. The Wireline 

Broadband Notice also sought comment 

on the legal classification of the 

transmission component underlying 

facilities-based wireline broadband 

Internet access service. In contrast to the 

classification of wireline broadband 

Internet access service as an information 

service, there is considerable 

disagreement in the record as to the 

appropriate classification of the 

transmission component of such 

Internet access service. The legal 

classification of this transmission 

component has certain regulatory 

implications for its provider. 

Specifically, if the transmission 

component is a telecommunications 

service under the Act, providers of that 

service are subject to common carrier 

regulation under Title II of the Act in 

their provision of that service. 

Conversely, if the transmission 

component is not a telecommunications 

service under the Act, providers of that 

component are not subject to Title II 

requirements, except to the extent the 

Commission imposes similar or 

identical obligations pursuant to its 

Title I ancillary jurisdiction. 

33. We address two circumstances 

under which the statutory classification 

of the transmission component arises: 

The provision of transmission as a 

wholesale input to ISPs (including 

affiliates) that provide wireline 

broadband Internet access service to end 

users, and the use of transmission as 

part and parcel of a facilities-based 

provider’s offering of wireline 

broadband Internet access service using 

its own transmission facilities to end 

users. First, we address the wholesale 

input. Nothing in the Communications 

Act compels a facilities-based provider 

to offer the transmission component of 

wireline broadband Internet access 

service as a telecommunications service 

to anyone. Furthermore, consistent with 

the NARUC precedent, National Ass’n 

of Reg. Utils. Comm’rs v. FCC, 525 F.2d 

630, 642 (DC Cir. 1976), cert. denied, 

425 U.S. 992 (1976), the transmission 

component of wireline broadband 

Internet access service is a 

telecommunications service only if one 

of two conditions is met: the entity that 

provides the transmission voluntarily 

undertakes to provide it as a 

telecommunications service; or the 

Commission mandates, in the exercise 

of our ancillary jurisdiction under Title 

I, that it be offered as a 

telecommunications service. As to the 

first condition, we explain above that 

carriers may choose to offer this type of 

transmission as a common carrier 

service if they wish. In that 

circumstance, it is of course a 

telecommunications service. Otherwise, 

however, is it not, as we would not 

expect an ‘‘indifferent holding out’’ but 

a collection of individualized 

arrangements. As to the second 

condition, based on the record, we 

decline to continue our reflexive 

application of the Computer Inquiry 

requirement, which compelled the 

offering of a telecommunications service 

to ISPs. Thus, we affirm that neither the 

statute nor relevant precedent mandates 

that broadband transmission be a 

telecommunications service when 

provided to an ISP, but the provider 

may choose to offer it as such. 

34. Second, we address the use of the 

transmission component as part of a 

facilities-based provider’s offering of 

wireline broadband Internet access 

service to end users using its own 

transmission facilities. We conclude, 

consistent with Brand X, that such a 

transmission component is mere 

‘‘telecommunications’’ and not a 

‘‘telecommunications service.’’ As 

stated above, the Act in section 153(46) 

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.’’ Thus, 

whether a telecommunications service 

is being provided turns on what the 

entity is ‘‘offering * * * to the public,’’

and customers’ understanding of that 

service. End users subscribing to 

wireline broadband Internet access 

service expect to receive (and pay for) 

a finished, functionally integrated 

service that provides access to the 

Internet. End users do not expect to 

receive (or pay for) two distinct 

services—both Internet access service 

and a distinct transmission service, for 

example. Thus, the transmission 

capability is part and parcel of, and 

integral to, the Internet access service 

capabilities. Accordingly, we conclude 

that wireline broadband Internet access 

service does not include the provision 

of a telecommunications service to the 

end user irrespective of how the service 

provider may decide to offer the 

transmission component to other service 

providers. 

35. Effect on Existing Obligations. The 

Wireline Broadband Notice sought 

comment on what effect classifying 

wireline broadband Internet access 

service as an information service would 

have on other regulatory obligations. 

Title II obligations have never generally 

applied to information services, 

including Internet access services. 

Instead, when the Commission has 

deemed it necessary to impose 

regulatory requirements on information 

services, it has done so pursuant to its 

Title I ancillary jurisdiction. Indeed, as 

noted above, the Commission imposed 

the Computer Inquiry obligations on 

facilities-based common carriers 

pursuant to its Title I ancillary 

jurisdiction. Similarly, the Commission 

has exercised its ancillary jurisdiction 

under Title I to extend accessibility 

obligations that mirror those under 

section 255 to certain information 

services, i.e., voicemail and interactive 

menu service. The Commission’s 

ancillary jurisdiction under Title I to 

impose regulatory obligations on 

broadband Internet access service 

providers was recently recognized by 

the Supreme Court in Brand X. 

36. The Commission may exercise its 

ancillary jurisdiction when Title I of the 

Act gives the Commission subject matter 

jurisdiction over the service to be 

regulated and the assertion of 

jurisdiction is ‘‘reasonably ancillary to 

the effective performance of [its] various 

Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 60229 

responsibilities.’’ United States v. 

Southwestern Cable Co., 392 U.S. 157, 

178 (1968). We recognize that both of 

the predicates for ancillary jurisdiction 

are likely satisfied for any consumer 

protection, network reliability, or 

national security obligation that we may 

subsequently decide to impose on 

wireline broadband Internet access 

service providers. 

37. First, we find that we have subject 

matter jurisdiction over providers of 

broadband Internet access services. 

These services are unquestionably ‘‘wire 

communication’’ as defined in section 

3(52) because they transmit signals by 

wire or cable, or they are ‘‘radio 

communication’’ as defined in section 

3(33) if they transmit signals by radio. 

The Act gives the Commission subject 

matter jurisdiction over ‘‘all interstate 

and foreign communications by wire or 

radio * * * and * * * all persons 

engaged within the United States in 

such communication’’ in section 2(a). 

Second, with regard to consumer 

protection obligations, we find that 

regulations would be ‘‘reasonably 

ancillary’’ to the Commission’s 

responsibility to implement sections 

222 (customer privacy), 255 (disability 

access), and 258 (slamming and truthin-billing), among other provisions, of 

the Act. Similarly, network reliability, 

emergency preparedness, national 

security, and law enforcement 

requirements would each be reasonably 

ancillary to the Commission’s obligation 

under section 151 of the Act to make 

available ‘‘a rapid, efficient, Nationwide, and world-wide wire and radio 

communication service * * * for the 

purpose of the national defense [and] for 

the purpose of promoting safety of life 

and property through the use of wire 

and radio communication.’’

38. Federal Universal Service 

Contribution Obligations. In section 254 

of the Act, Congress codified our 

Federal universal service programs to 

ensure affordable telecommunications 

services to all Americans, including 

consumers living in high-cost areas, low 

income consumers, eligible schools and 

libraries, and rural health care 

providers. In this section, we address 

the universal service contribution 

obligations of providers of wireline 

broadband Internet access service. 

Section 254(d) of the Act states that 

‘‘[e]very telecommunications carrier that 

provides interstate telecommunications 

services shall contribute’’ to universal 

service. In the Universal Service Order 

(62 FR 32862, June 17, 1997), the 

Commission interpreted the first 

sentence of section 254(d) as imposing 

a mandatory contribution requirement 

on all telecommunications carriers that 

provide interstate telecommunications 

services. We note that the Commission 

also has permissive authority under 

section 254(d) to require any provider of 

interstate telecommunications to 

contribute to the preservation and 

advancement of universal service if the 

public interest so requires. In the 

Wireline Broadband Notice, the 

Commission recognized that, under its 

existing rules and policies, 

telecommunications carriers providing 

telecommunications services, including 

broadband transmission services, are 

subject to universal service contribution 

requirements. 

39. Congress required in section 254 

of the Act that ‘‘[t]here should be 

specific, predictable, and sufficient 

Federal and State mechanisms to 

preserve and advance universal 

service.’’ Accordingly, we conclude that 

facilities-based providers of wireline 

broadband Internet access services must 

continue to contribute to existing 

universal service support mechanisms 

based on the current level of reported 

revenue for the transmission component 

of their wireline broadband Internet 

access services for a 270-day period 

after the effective date of this Order or 

until we adopt new contribution rules 

in the Universal Service Contribution 

Methodology proceeding (67 FR 79543, 

Dec. 30, 2002), whichever occurs earlier. 

That is, wireline broadband Internet 

access providers must maintain their 

current universal service contribution 

levels attributable to the provision of 

wireline broadband Internet access 

service for this 270-day period. We take 

this action, as a matter of policy, to 

preserve existing levels of universal 

service funding, and prevent a 

precipitous drop in fund levels while 

we consider reform of the system of 

universal service in the Universal 

Service Contribution Methodology 

proceeding. We are committed to 

ensuring that there continue to be 

specific, predictable, and sufficient 

Federal and State mechanisms to 

preserve and advance universal service. 

If we are unable to complete new 

contribution rules within the 270-day 

period of time, the Commission will 

take whatever action is necessary to 

preserve existing funding levels, 

including extending the 270-day period 

discussed above or expanding the 

contribution base. We have ample 

authority to take interim actions to 

preserve the status quo. 

40. Law Enforcement, National 

Security, and Emergency Preparedness: 

CALEA. The Communications 

Assistance for Law Enforcement Act 

(CALEA) requires telecommunications 

carriers to ensure that ‘‘equipment, 

facilities or services that provide a 

customer or subscriber with the ability 

to originate, terminate, or direct 

[communications]’’ are capable of 

providing authorized surveillance to 

law enforcement agencies. In a separate 

order also released on September 23, 

2005, Communications Assistance for 

Law Enforcement Act and Broadband 

Access and Services, ET Docket No. 04–

295, First Report and Order and Further 

Notice of proposed Rulemaking, FCC 

05–153 (released September 23, 2005), 

we conclude that providers of facilitiesbased broadband Internet access service, 

regardless of platform, are subject to 

CALEA. We therefore do not address 

CALEA issues in this Order. 

41. USA PATRIOT Act. We find that 

our actions in this Order will not affect 

the government’s implementation or 

enforcement of the Uniting and 

Strengthening America by Providing 

Appropriate Tools Required to Intercept 

and Obstruct Terrorism Act of 2001 

(USA PATRIOT Act). This Act amended 

the Federal criminal code to authorize 

the interception of wire and electronic 

communications for the production of 

evidence of terrorism offenses and 

computer fraud, and modified only one 

section of the Communications Act, 

section 631 of Title VI. We conclude 

that the scope of activities covered 

under the definitions of wire 

communications and electronic 

communications is broad enough to 

encompass wireline broadband Internet 

access service regardless of the legal 

classification of this service, or its 

transmission component, under the 

Communications Act. Only one party 

submitted comments on the subject, 

agreeing that the legal classification of 

wireline broadband Internet access 

service as an information service will 

have no impact on the applicability of 

the USA PATRIOT Act. 

42. Emergency Preparedness and 

Response. We find that our 

classification of wireline broadband 

Internet access service as an information 

service, and the transmission input as 

telecommunications (except to the 

extent that the provider chooses to offer 

that transmission on a common carrier 

basis), will not affect the Commission’s 

existing rules implementing the 

National Security Emergency 

Preparedness (NSEP) 

Telecommunications Service Priority 

(TSP) System. But, we will nonetheless 

exercise our Title I authority, as 

necessary, to give full effect to the 

principles and purpose of the NSEP TSP 

System. The NSEP TSP System is set 

forth in appendix A to part 64 of the 

rules and provides that the Commission 

has ‘‘authority over the assignment and 

60230 Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 

approval of priorities for provisioning 

and restoration of common carrierprovided telecommunications services.’’

The facilities-based wireline broadband 

Internet access service providers that are 

the subject of our Order today are 

telecommunications carriers with 

respect to other services that they 

provide. Therefore, we find that these 

providers remain subject to the NSEP 

TSP. 

43. The Secretary of Defense 

(Secretary), the only party to submit 

comments on this issue, expressed 

concern that the existing National 

Communications System programs will 

no longer apply to wireline broadband 

Internet access service if it is classified 

as an information service unless the 

Commission exercises its ancillary 

jurisdiction. As the Secretary 

recognizes, NSEP communications are 

currently provided by carriers subject to 

Title II. Information service providers, 

therefore, have not been subject to these 

rules unless those providers are also 

offering services as telecommunications 

carriers. Since the actions we take in 

this Order affect only wireline carriers 

that provide the transmission 

component of wireline broadband 

Internet access service, we have no 

reason to expect that those actions will 

adversely affect emergency 

preparedness efforts. These service 

providers, for the most part, provide 

their wireline broadband Internet access 

services over the same facilities used to 

provide other telecommunications 

services and thus these facilities remain 

subject to part 64 to the same extent as 

they have before. Moreover, we do agree 

with the Secretary’s conclusion that, 

should the need arise, we do have the 

authority to regulate NSEP under Title 

I. We will closely monitor the 

development of wireline broadband 

Internet access service and its effect on 

the NSEP TSP System and, if needed, 

will expeditiously take all appropriate 

actions to promote the viability of that 

system. 

44. Moreover, we state that our 

decision to classify wireline broadband 

Internet access service as an information 

service, and the transmission input as 

telecommunications (except when 

offered on a common carrier basis), has 

no effect whatsoever on our recently 

adopted E911 rules for interconnected 

VoIP providers (VOIP E911 Order, 70 FR 

37273, June 29, 2005). In that Order, we 

required providers of interconnected 

VoIP to offer E911 service to their 

subscribers. Although interconnected 

VoIP is necessarily provided via 

broadband, nothing in the VoIP E911 

Order in any way turns on the statutory 

classification of that broadband 

connection. Thus, we reaffirm that, after 

today’s Order, interconnected VoIP 

providers must comply with the VoIP 

E911 Order regardless of how or by 

whom the underlying broadband 

connection is provided. 

45. Network Reliability and 

Interoperability. We reject arguments 

that classifying wireline broadband 

Internet access service as an 

‘‘information service’’ and its 

transmission component as 

‘‘telecommunications’’ (except to the 

extent that the provider chooses to offer 

that transmission on a common carrier 

basis) requires that we obtain additional 

authorization from the Network 

Reliability and Interoperability Council 

(NRIC) at this time. NRIC, initially 

established by the Commission in 1992 

as the Network Reliability Council, 

advises the Commission on 

recommendations to ensure optimal 

reliability and interoperability of the 

nation’s communications networks. 

Section 256 of the Act codifies the 

Commission’s ability and obligation to 

oversee network planning and set 

standards to enable the Commission to 

carry out the objectives of this section 

as well as the Commission’s prior 

practices in the area of network 

reliability and interoperability through 

the NRIC. NRIC VI, the latest chartered 

council, significantly expanded its 

membership to include the Internet 

service industry and included among its 

scope of activities numerous issues 

relating to the Internet and broadband 

deployment. 

46. Contrary to what some 

commenters suggest, we do not agree 

that classifying wireline broadband 

Internet access service as an information 

service would deny us the ability to 

oversee broadband interconnectivity. 

Rather, we agree with the view that our 

actions in this proceeding will not 

constrain our ability to address network 

reliability and interoperability issues. A 

purpose of section 256 is ‘‘to ensure the 

ability of users and information 

providers to seamlessly and 

transparently transmit and receive 

information between and across 

telecommunications networks.’’ This 

provision affords the Commission 

adequate authority to continue 

overseeing broadband interconnectivity 

and reliability issues, regardless of the 

legal classification of wireline 

broadband Internet access service. 

Moreover, NRIC’s current charter directs 

it to make recommendations to increase 

the deployment and improve the 

security, reliability, and interoperability 

of ‘‘high-speed residential Internet 

access service,’’ and we find that its 

activities in this regard are consistent 

with section 256. 

47. Access by Persons with 

Disabilities. 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.’’ Like the other 

Title II obligations discussed above, 

section 255 expressly applies to 

telecommunications services, not 

information services. Although the 

requirements contained in section 255 

do not apply to information services, in 

the past the Commission has exercised 

its ancillary jurisdiction under Title I to 

extend accessibility obligations that 

mirror those under section 255 to two 

critically important information 

services, voicemail and interactive 

menu service. This Order does not affect 

voicemail or interactive menu service 

providers’ obligations or other 

telecommunications service providers’

obligations under section 255(c). We 

will continue to exercise our Title I 

authority, as necessary, to give full 

effect to the accessibility policy 

embodied in section 255. 

48. In addition, section 225(b) directs 

the Commission to ensure 

‘‘telecommunications relay services’’

(TRS), a set of services that includes 

both video relay service (VRS) and IP 

relay, are available to individuals with 

hearing or speech impairments. The 

Commission has previously determined 

that the statutory definition of TRS 

includes both information services and 

telecommunications services (65 FR 

38432, June 21, 2000). Nothing in this 

Order disturbs that earlier conclusion; 

consequently, this Order will not affect 

TRS requirements or the ability of TRS 

users to access VRS or IP relay. 

49. In addition, the Commission will 

remain vigilant in monitoring the 

development of wireline broadband 

Internet access service and its effects on 

the important policy goals of section 

255. As noted above, we will exercise 

our ancillary jurisdiction to ensure 

achievement of important policy goals 

of section 255 and also section 225 of 

the Act. 

50. Consistent with our decision 

today to require facilities-based wireline 

broadband Internet access service 

providers to continue to contribute to 

universal service support mechanisms 

for an additional 270-day period, as a 

matter of policy, we also require such 

providers to report the revenue on the 

Commission’s FCC Form 499–A 

associated with the transmission 

component of their wireline broadband 

Internet access service as of the effective 

date of this Order for an additional 270- 

Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 60231 

day period for purposes of contributing 

to the TRS fund for that same 270-day 

period. 

51. NANPA Funding. Pursuant to this 

same interim authority, we require 

facilities-based wireline broadband 

Internet access service providers to 

continue to contribute to the cost of 

numbering administration through the 

NANPA funding mechanism established 

by the Commission pursuant to section 

251(e) of the Act for the same 270-day 

period. We take this action to ensure 

that the funding for this critical function 

does not immediately decrease while 

the Commission examines what, if any 

funding related obligations should 

apply to facilities-based broadband 

Internet access service providers. 

Section 251(e)(2) requires that ‘‘[t]he 

cost of establishing telecommunications 

numbering administration arrangements 

* * * be borne by all 

telecommunications carriers on a 

competitively neutral basis as 

determined by the Commission.’’ In 

carrying out this statutory directive, the 

Commission adopted 47 CFR 52.17 of its 

rules, which requires, among other 

things, that all telecommunications 

carriers contribute toward the costs of 

numbering administration on the basis 

of their end-user telecommunications 

revenues for the prior calendar year. 

52. Obligations of Incumbent LECs 

Under Section 251. The Wireline 

Broadband Notice sought comment on 

the relationship between a competitive 

LEC’s rights under section 251 and the 

Commission’s tentative conclusion that 

wireline broadband Internet access 

service is an information service with a 

telecommunications input. Several 

competitive LECs, and one BOC, argue 

that regardless of how the Commission 

classifies wireline broadband Internet 

access service, including its 

transmission component, competitive 

LECs should still be able to purchase 

UNEs, including UNE loops to provide 

stand-alone DSL telecommunications 

service, pursuant to section 251(c)(3) of 

the Act. We agree. 

53. Section 251(c)(3) and the 

Commission’s rules look at what use a 

competitive LEC will make of a 

particular network element when 

obtaining that element pursuant to 

section 251(c)(3); the use to which the 

incumbent LEC puts the facility is not 

dispositive. In this manner, even if an 

incumbent LEC is only providing an 

information service over a facility, we 

look to see whether the requesting 

carrier intends to provide a 

telecommunications service over that 

facility. Thus, competitive LECs will 

continue to have the same access to 

UNEs, including DS0s and DS1s, to 

which they are otherwise entitled under 

our rules, regardless of the statutory 

classification of service the incumbent 

LECs provide over those facilities. So 

long as a competitive LEC is offering an 

‘‘eligible’’ telecommunications service 

under (which is not exclusively long 

distance or mobile wireless services) it 

may obtain that element as a UNE. See, 

e.g., 47 CFR 51.309(b), (d). Accordingly, 

nothing in this Order changes a 

requesting telecommunications carriers’

UNE rights under section 251 and our 

implementing rules. 

54. Cost Allocation. In this section, 

we address cost allocation issues raised 

by our decision to allow incumbent 

LECs to enter into non-common carriage 

arrangements with affiliated and 

unaffiliated ISPs for the provision of 

wireline broadband Internet access 

transmission using facilities that are 

also used for provision of regulated 

telecommunications services. 

Specifically, we address whether we 

should require incumbent LECs subject 

to our part 64 cost allocation rules to 

classify that activity as a regulated 

activity, as opposed to a nonregulated 

activity, under our part 64 cost 

allocation rules. We conclude that 

incumbent LECs should classify this 

non-common carrier activity as a 

regulated activity under those rules and 

that this accounting treatment is 

consistent with section 254(k) of the 

Act. 

55. In this Order, we allow the noncommon carrier provision of wireline 

broadband Internet access transmission 

that we previously have treated as 

regulated, interstate special access 

service, but we do not preemptively 

deregulate any service currently 

regulated by any state. Therefore, as 

specified in 47 CFR 32.23, the provision 

of this transmission is to be classified as 

a regulated activity under part 64 ‘‘until 

such time as the Commission decides 

otherwise.’’ We do not ‘‘decide 

otherwise’’ at this time because we find 

that the costs of changing the federal 

accounting classification of the costs 

underlying this transmission would 

outweigh any potential benefits and that 

section 254(k) of the Act does not 

mandate such a change. 

56. Because the costs of requiring that 

incumbent LECs classify their noncommon carrier, broadband Internet 

access transmission operations as 

nonregulated activities under part 64 

exceed the potential benefits, we 

decline to require such a classification. 

Classifying those operations as regulated 

under part 32 means that any necessary 

ratemaking adjustments, including any 

reallocations of costs, will be addressed 

in the ratemaking process in the 

relevant regulatory jurisdiction. In our 

case, that is the interstate jurisdiction. 

Currently, some price cap carriers treat 

broadband special access services as 

price cap services, while others treat 

these broadband services as services 

excluded from price caps. Price cap 

carriers that have tariffed these services 

under price caps, and that choose to 

replace these tariffed services with noncommon carriage arrangements, will 

make the appropriate adjustments to the 

actual price index (API) and price cap 

index (PCI) for the special access basket. 

The ordinary application of the price 

cap rate formulas will ensure that other 

special access rates remain consistent 

with the price cap rules after 

deregulation of broadband transmission 

services. Carriers that have excluded 

broadband transmission services from 

price caps will not need to make these 

adjustments. 

57. Our ruling here with respect to the 

accounting treatment of broadband 

Internet access transmission provided 

on a non-common carrier basis does not 

change the accounting treatment that 

applies to broadband Internet access 

service provided to end users. That is, 

and always has been, an information 

service. An incumbent LEC that offers 

this service must continue to account 

for it as a nonregulated activity. 

58. We note that our decision to treat 

the non-common carrier provision of 

broadband Internet access transmission 

as a regulated activity under part 64 will 

affect the results of computations of the 

rate of return earned on interstate Title 

II services. This is not a matter of 

practical concern with respect to most 

incumbent LECs regulated under the 

CALLS plan (65 FR 38684, June 21, 

2000) or price caps, because earnings 

determinations are not used in 

determining their price cap rates. In the 

event that an earnings determination is 

needed for some ratemaking purpose, 

the affected carrier will have to propose 

a way of removing the costs of any nonTitle II services from the computation. 

Price cap carriers that have not taken 

advantage of pricing flexibility, and 

therefore are still able to take advantage 

of low-end adjustments to their price 

cap rates, will have to address this cost 

allocation issue if and when they seek 

a low-end adjustment. 

59. Finally, all rate-of-return carriers 

that have participated in this proceeding 

have stated that they wish to continue 

offering broadband transmission as a 

Title II common carrier service. We have 

provided them with this option. As 

such, we do not, at this time, address 

the treatment of private carriage 

arrangements by rate-of-return carriers 

60232 Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 

because the issue is entirely 

hypothetical. 

60. Section 254(k). Section 254(k) of 

the Act states that a telecommunications 

carrier ‘‘may not use services that are 

not competitive to subsidize services 

that are subject to competition.’’ That 

section also requires the Commission to 

establish, with respect to interstate 

services, accounting and cost allocation 

rules that ensure that ‘‘services included 

in the definition of universal service 

bear no more than a reasonable share of 

the joint and common costs of facilities 

used to provide those services.’’ By 

continuing to treat the provision of 

wireline broadband transmission as a 

regulated activity under part 64, we do 

not change the regulatory cost allocation 

treatment and thus do not change their 

status under section 254(k). Our actions 

in this Order therefore do not create a 

violation of section 254(k). 

61. We find that section 254(k) of the 

Act does not mandate allocation of 

interstate loop costs to non-common 

carrier broadband Internet access 

transmission. Under the CALLS access 

charge plan (65 FR 38684, June 21, 

2000), the interstate loop costs of price 

cap carriers are not assigned to the 

different services that subscribers may 

receive over the loop, but are recovered 

directly from end users through the 

subscriber line charge. The Commission 

explicitly found that section 254(k) did 

not prohibit this cost recovery 

mechanism (65 FR 38684, June 21, 

2000), and the Fifth Circuit upheld this 

finding, Texas Office of Public Utility 

Counsel v. FCC, 265 F.3d 313, 323–324 

(5th Cir. 2001). 

62. The subscriber line charge is not 

itself a ‘‘service included in the 

definition of universal service.’’ The 

interstate loop costs recovered through 

the subscriber line charge represent the 

costs of all jurisdictionally interstate 

uses of the loop. Since 1998, those uses 

have included both services supported 

by universal service, such as access to 

interexchange service, and broadband 

special access services, which are not 

supported by universal service. Costs 

need not be reallocated at this time from 

the subscriber line charge to noncommon carrier, broadband Internet 

access transmission in order to prevent 

imposition of an unreasonable level of 

joint and common costs on services 

included in the definition of universal 

services. This is not, as State Consumer 

Advocates claim, unreasonable. Rather, 

it is a reasonable and rational cost 

allocation approach. We can take 

additional steps to address cost 

allocation issues in the future if the 

need arises. 

63. We observe that NARUC and the 

State Consumer Advocates appear to 

assume that any reallocation of loop 

costs to broadband Internet access 

transmission would be given effect in 

the ratemaking process in such a way 

that consumers who do not receive 

wireline broadband Internet access 

service over their loops would have 

their tariffed rates reduced. This 

ratemaking approach would likely 

produce a relatively small per-line rate 

reduction for the large number of 

consumers who do not receive this 

broadband service, while leaving a 

larger per-line amount to be recovered 

from the smaller number of consumers 

who receive both narrowband and 

broadband services over their loops. 

This form of cost reallocation produces 

anomalous results, and we do not adopt 

it. It would cause a consumer who buys 

the two services over the same loop to 

pay much more for that facility than a 

consumer who buys only narrowband 

service, even though the cost of that 

facility is fixed and does not vary in 

proportion to usage. It would be 

possible to devise a scheme in which 

costs were reallocated only with respect 

to those loops on which both services 

are being provided, but this would seem 

to produce only a shifting of charges 

from one part of the customer’s bill to 

another. 

64. We note that the question whether 

there should be any changes to the 

jurisdictional allocation of loop costs in 

light of use of the loop for broadband 

services was referred to the FederalState Joint Board on Separations in 

1999. Specifically, in the wake of the 

Commission’s determination in its 1999 

tariff investigation that GTE’s ADSL 

service was an interstate special access 

service subject to federal tariffing, 

NARUC filed a petition for clarification 

regarding the proper allocation under 

part 36 of the Commission’s rules of 

loop costs associated with DSL services, 

GTE Telephone Operating Cos. GTOC 

Tariff No. 1, GTOC Transmittal No. 

1148, 17 FCC Rcd 27409 (1999). Noting 

that issues associated with how to 

allocate local loop plant between voice 

and data services for purposes of 

jurisdictional separations were beyond 

the scope of the limited investigation in 

the tariff proceeding, the Commission 

stated that it would address these 

important issues in conjunction with 

the Joint Board, GTE Telephone 

Operating Cos. GTOC Tariff No. 1, 

GTOC Transmittal No. 1148, 17 FCC 

Rcd at 27412, para. 9. This issue 

remains pending. In any event, 

separations is now subject to a five-year 

freeze, and the Joint Board is working 

on the approach that should follow this 

freeze; the issues we describe in this 

Order already fall within this context. 

After the Joint Board makes its 

recommendation, we can reexamine the 

question of how any additional costs 

that might be assigned to the interstate 

jurisdiction may be recovered by local 

exchange carriers. 

65. Enforcement. We intend to swiftly 

and vigorously enforce the terms of this 

Order. Significantly, through review of 

consumer complaints and other relevant 

information, we will monitor all 

consumer-related problems arising in 

this market and take appropriate 

enforcement action where necessary. 

Similarly, we will continue to monitor 

the interconnection and interoperability 

practices of all industry participants, 

including facilities-based Internet access 

providers, and reserve the ability to act 

under our ancillary authority in the 

event of a pattern of anti-competitive 

conduct. 

Final Paperwork Reduction Act 

Analysis 

66. This Report and Order does not 

contain any information collection 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. In 

addition, therefore, it does not contain 

any new or modified ‘‘information 

collection burden for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Final Regulatory Flexibility 

Certification 

67. As required by the Regulatory 

Flexibility Act, see 5 U.S.C. 603, the 

Commission has prepared a Final 

Regulatory Flexibility Certification of 

the possible significant economic 

impact on small entities of the policies 

and rules addressed in this Report and 

Order. 

68. The Regulatory Flexibility Act of 

1980, as amended (RFA), requires that a 

regulatory flexibility analysis be 

prepared for notice-and-comment 

rulemaking proceedings, unless the 

agency certifies that ‘‘the rule will not, 

if promulgated, have a significant 

economic impact on a substantial 

number of small entities.’’ The RFA 

generally defines the term ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’

under the Small Business Act. A ‘‘small 

business concern’’ is one which: (1) Is 

Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 60233 

independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the Small Business 

Administration (SBA). 

69. In the Wireline Broadband Notice, 

the Commission sought comment 

generally on the appropriate statutory 

classification for wireline broadband 

Internet access service provided over a 

provider’s own facilities, and on what 

regulatory requirements, if any, should 

be imposed on the telecommunications 

component of wireline broadband 

Internet access service. Specifically, the 

Commission sought comment on 

whether the Computer Inquiry 

requirements should be modified or 

eliminated as applied to selfprovisioned wireline broadband Internet 

access service, as well as how the 

Commission’s tentative conclusion that 

wireline broadband Internet access 

service is an information service would 

affect the CALEA assistance capabilities, 

the USA PATRIOT Act, other national 

security or emergency preparedness 

obligations, network reliability and 

interoperability, and existing consumer 

protection requirements, such as § 214 

of the Act, CPNI requirements under 

section 222 of the Act, and requirements 

for access to persons with disabilities 

under section 255 of the Act. The 

Commission also sought comment on 

how to continue to meet the goals of 

universal service under section 254 of 

the Act in a marketplace where 

competing providers are deploying 

broadband Internet access, including 

how the regulatory status of wireline 

broadband Internet access could impact 

the system of assessments and 

contributions to universal service. 

Finally, the Wireline Broadband Notice 

also invited comment on the 

relationship between the statutory 

classification of wireline broadband 

Internet access service and an 

incumbent LEC’s obligation to provide 

access to UNEs under sections 251 and 

252. 

70. The Order eliminates the 

Computer Inquiry requirements on 

facilities-based carriers in their 

provision of wireline broadband 

Internet access service. Consequently, 

BOCs are immediately relieved of the 

separate subsidiary, CEI, and ONA 

obligations with respect to wireline 

broadband Internet access services. In 

addition, subject to a one-year transition 

period for existing wireline broadband 

transmission services, all wireline 

broadband Internet access service 

providers are no longer subject to the 

Computer II requirement to separate out 

the underlying transmission from 

wireline broadband Internet access 

service and offer it on a common carrier 

basis. We determine in this Order that 

wireline broadband Internet access 

service is an information service, as that 

term is defined in the statute. To the 

extent that the regulatory obligations 

discussed above apply to the 

transmission component of wireline 

broadband Internet access service when 

provided to ISPs or others on a standalone common carrier basis, these 

obligations will continue to apply when 

carriers offer broadband Internet access 

service transmission on a common 

carrier basis, both during the transition 

and thereafter. 

71. The rule changes adopted in this 

Order apply, for the most part, only to 

BOCs (Computer Inquiry separate 

subsidiary, CEI, and ONA obligations 

with respect to wireline broadband 

Internet access services). In addition, all 

facilities-based wireline broadband 

Internet access service providers are no 

longer subject to the Computer II 

requirement to separate out the 

underlying transmission. Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically applicable to providers of 

incumbent local exchange service and 

interexchange services. The closest 

applicable size standard under the SBA 

rules is for Wired Telecommunications 

Carriers. This provides that such a 

carrier is a small entity if it employs no 

more than 1,500 employees. None of the 

four BOCs that would be affected by 

amendment of these rules meets this 

standard. To the extent that any other 

wireline provider would be classified as 

a small entity, it would not be 

negatively affected by the regulatory 

relief we grant in this Order. 

72. Therefore, we certify that the 

requirements of the Order will not have 

a significant economic impact on a 

substantial number of small entities. We 

note that one party, TeleTruth, filed 

comments in response to the IFRAs in 

the Wireline Broadband Notice and 

Incumbent LEC Broadband Notice 

proceedings. TeleTruth argues that these 

IRFAs are deficient because they fail to 

assess the potential impact of the 

actions proposed in those proceedings 

on small ISPs and small competitive 

LECs and that our implementation of 

the RFA is otherwise deficient. These 

arguments are identical to, and indeed 

filed as part of the same pleading as, 

arguments the Commission previously 

has rejected. We therefore again reject 

these arguments for the reasons stated in 

our prior Orders responding to 

TeleTruth’s comments. 

73. The Commission will send a copy 

of the Order, including a copy of this 

Final Regulatory Flexibility 

Certification, in a report to Congress 

pursuant to the Congressional Review 

Act. In addition, the Order and this final 

certification will be sent to the Chief 

Counsel for Advocacy of the SBA, and 

a summary of the Order and final 

certification will be published in the 

Federal Register. 

Ordering Clauses 

74. Accordingly, It is ordered that, 

pursuant to sections 1–4, 10, 201–205, 

214, 222, 225, 251, 252, 254–256, 258, 

303(r) of the Communications Act of 

1934, as amended, 47 U.S.C. 151–154, 

160, 201–205, 214, 222, 225, 251, 252, 

254–256, 258, 303(r), and section 706 of 

the Telecommunications Act of 1996, 47 

U.S.C. 157 nt, the Report and Order and 

Notice of Proposed Rulemaking are 

adopted. 

75. It is further ordered, pursuant to 

sections 1–4, 10, 201–205, 214, 222, 

225, 251, 252, 254–256, 258, 303(r) of 

the Communications Act of 1934, as 

amended, 47 U.S.C. 151–154, 160, 201–

205, 214, 222, 225, 251, 252, 254–256, 

258, 303(r), and section 706 of the 

Telecommunications Act of 1996, 47 

U.S.C. 157 nt, that wireline broadband 

Internet access transmission providers 

are granted blanket certification to 

discontinue the provision of common 

carrier broadband Internet access 

transmission services to existing 

customers as set forth and subject to the 

conditions stated in this Order. 

76. It is further ordered, pursuant to 

sections 1–4, 10, 201–205, 214, 222, 

225, 251, 252, 254–256, 258, 303(r) of 

the Communications Act of 1934, as 

amended, 47 U.S.C. 151–154, 160, 201–

205, 214, 222, 225, 251, 252, 254–256, 

258, 303(r), and section 706 of the 

Telecommunications Act of 1996, 47 

U.S.C. 157 nt, that the Conditional 

Petition for Forbearance Under 47 

U.S.C. 160(c) filed by the Verizon 

Telephone Companies in WC Docket 

No. 04–242 on June 28, 2004, is denied 

as moot. 

77. It is further ordered, pursuant to 

sections 1–4, 10, 201–205, 214, 222, 

225, 251, 252, 254–256, 258, 303(r) of 

the Communications Act of 1934, as 

amended, 47 U.S.C. 151–154, 160, 201–

205, 214, 222, 225, 251, 252, 254–256, 

258, 303(r), and section 706 of the 

Telecommunications Act of 1996, 47 

U.S.C. 157 nt, that the Petition for 

Declaratory Ruling or, Alternatively, for 

Interim Waiver filed in WC Docket No. 

04–242 by the Verizon Telephone 

Companies on June 28, 2004, is 

dismissed as moot. 

78. It is further ordered, pursuant to 

§§ 1.103(a) and 1.427(b) of the 

Commission’s rules, 47 CFR 1.103(a), 

1.427(b), that this Report and Order 

60234 Federal Register / Vol. 70, No. 199 / Monday, October 17, 2005 / Rules and Regulations 

shall be effective 30 days after 

publication of the Report and Order in 

the Federal Register. 

79. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Order, including the Final 

Regulatory Flexibility Certification, to 

the Chief Counsel for Advocacy of the 

Small Business Administration. 

List of Subjects in 47 CFR Parts 51, 63, 

64 

Communications, Telephone, 

Broadband Internet access services. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 05–20830 Filed 10–14–05; 8:45 am] 

BILLING CODE 6712–01–U