ÁREA CONTABLE-ORZAMENTARIA

170. As we have reinstated the information service classification of broadband Internet access service, the forbearance granted in the Title II Order is now moot.

We return to the pre-Title II Order status quo and allow providers voluntarily electing to offer broadband transmission on a common carrier basis to do so under the frameworks established in the Wireline Broadband Classification Order and the Wireless Broadband Internet Access Order.

We also clarify that carriers are no longer permitted to use the Title II Order forbearance framework (i.e., no carrier will be permitted to maintain, or newly elect, the Title II Order forbearance framework).

171. Prior to the Title II Order, some facilities-based wireline carriers chose to offer broadband transmission services on a common carrier basis subject to the full range of Title II requirements.

In the 2005 Wireline Broadband Classification Order, the Commission ruled that broadband Internet access was an information service, but at the same time permitted facilities-based wireline carriers to voluntarily elect to offer the transmission component of broadband Internet access service (often referred to as digital subscriber line or DSL) on a common carrier basis.

Operators choosing to offer broadband transmission on a common carriage basis could do so under tariff or could use non-tariff arrangements.

The Commission permitted facilities-based carriers to choose whether to offer wireline broadband Internet access transmission as non-common carriage or common carriage 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.”

Generally, ISPs that chose to elect common carrier status were smaller carriers that served “rural, sparsely-populated areas” and obtained significant benefits from the provision of broadband transmission services on a common carriage basis, including the ability to participate in common tariff arrangements via the NECA pools and the availability of high-cost universal service support.

172. We agree with NTCA and NECA that the broadband transmission services currently offered by rural LECs under tariff differ substantially from the broadband Internet access services at issue in this proceeding, and as such are not impacted by our decision to reclassify broadband Internet access service as an information service.

The term “wireline broadband Internet access service” refers to “a mass-market retail service by wire that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the

624 See CenturyLink Comments at 31-32; Internet Freedom NPRM, 32 FCC Rcd at 4456, para. 64.

625 See Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853 (2005) (Wireline Broadband Classification Order), aff’d Time Warner Telecom, Inc. v. FCC, 507 F.3d 205 (3d Cir. 2007); see also Wireless Broadband Internet Access Order, 22 FCC Rcd at 5913-14, 32-34.

626 Title II Order, 30 FCC Rcd at 5819, para. 460 & n.1376. We also note that the Commission allowed for wireless broadband Internet access service providers to elect to offer the transmission component as a telecommunications service. Wireless Broadband Internet Access Order, 22 FCC Rcd at 5913-14, 32.

627 Wireline Broadband Classification Order, 20 FCC Rcd at 14955, para. 1, 14902, para. 94. See also id. at 14927, para. 138 (noting that all rate-of-return carriers that participated in the proceeding stated they wish to continue offering broadband transmission as a Title II common carrier service).

628 Id. at 14899-903, paras. 87-95.

629 Id. at 14902, para. 94.

630 See NECA Comments at 5; WTA Comments at 9.

631 NECA Comments at 5; NTCA Comments at 19.

operation of the communications service, but excluding dial-up Internet access service.”

Broadband transmission services do not provide end users with direct connectivity to the Internet backbone or content, but instead enable data traffic generated by end users to be transported to an ISP’s Access Service Connection Point over rural LEC local exchange service facilities for subsequent interconnection with the internet backbone.

173. Carriers offering broadband transmission service have never been subject to the Title II Order forbearance framework.

The Title II Order forbearance framework with respect to broadband Internet access service did not encompass broadband transmission services and permitted carriers to voluntarily elect to offer transmission services on a common carriage basis pursuant to the Wireline Broadband Classification Order.

The Title II Order made clear that broadband transmission services would continue to be subject to the full panoply of Title II obligations (e.g., USF contributions), including those from which the Commission forbore from in the Title II Order.

Thus, only carriers that elected to cease offering broadband transmission services and instead offer broadband Internet access services (including a transmission service component) were subject to the Title II Order forbearance framework (e.g., forbearance from USF contributions applied to such carriers).

174. Today, we return to the pre-Title II Order status quo and allow carriers to elect to offer broadband transmission services on a common carrier basis, either pursuant to tariff or on a non-tariffed basis.

We find the reasoning in the Wireline Broadband Classification Order for offering these options persuasive.

Irrespective of the regulatory classification of broadband Internet access services, the Commission has continuously permitted facilities-based wireline carriers to provide broadband Internet transmission services on a Title II common carriage basis, with substantial flexibility in deciding how such services may be offered (i.e., on a tariffed or non-tariffed basis).

Providing these options offers small carriers much-needed regulatory certainty as they have sought to deploy and maintain broadband Internet access services to their customers.

We reiterate that broadband transmission services are not impacted by our decision to reclassify broadband Internet access service as an information service.

175. We clarify that carriers that choose to offer transmission service on a common carriage basis are, as under the Wireline Broadband Classification Order, subject to the full set of Title II obligations, to the extent they applied before the Title II Order.

Further, we clarify that those carriers

632 Connect America Fund, et al., 31 FCC Rcd 3087, 3158 & n.421 (2016) (Rate of Return USF Reform Order).

633 NECA Comments at 5 & n.16.

634 Title II Order, 30 FCC Rcd at 5819, para. 460.

635 Id.

636 Title II Order, 30 FCC Rcd at 5819, para. 460 & n.1377.

637 Internet Freedom NPRM, 32 FCC Rcd at 4456, para. 65; Title II Order, 30 FCC Rcd at 5819, para. 460 &

n.1378. Over one hundred providers opted-into the Title II Order forbearance framework and in their letters to the Commission, they noted that the transmission component would only be provided as part of the complete broadband Internet access service. See Protecting and Promoting the Open Internet, GN Docket No. 14-28.

638 See, e.g., Interisle Comments at 16-17; NECA Comments at 2-6; NTCA Comments at 17-19; WTA Comments at 8-10 (all advocating to retain the ability to voluntary elect to provide service as a common carrier). See also Data Foundry Reply at 7.

639 Wireline Broadband Classification Order, 20 FCC Rcd at 14955, para. 1, 14899-903, paras. 87-95.

640 NECA Comments at 4-5.

641 See, e.g., NECA Comments at 5; NTCA Comments at 19; WTA Comments at 9.

642 Supra para. 173.

643 Similarly, a wireless broadband Internet access provider may choose to offer the transmission component as a telecommunications service and the transmission component of wireless broadband Internet access service as a

(continued….)

that had previously been offering a broadband transmission service (subject to the full panoply of Title II regulations) and that elected to instead offer broadband Internet access service after the Title II Order now will be deemed to be offering an information service. The Commission has never allowed carriers offering broadband transmission services on a common carrier basis to opt in to the Title II Order forbearance framework for those transmission services. Carriers that prefer light-touch regulation may elect to offer broadband Internet access service as an information service. Although WTA argues that allowing rural LECs to opt into the forbearance framework will “enable a much more level competitive playing field in the retail marketplace,”

no other carriers are subject to that framework, and we find that allowing carriers to opt into the forbearance framework will result in a regulatory disparity. We therefore reject WTA’s argument that the Commission should continue to permit opting into the Title II Order forbearance.

To the extent that other related issues are raised in the record, we find that those issues are better addressed in the appropriate proceeding.

176. We also reject AT&T’s assertion that the Commission should conditionally forbear from all Title II regulations as a preventive measure to address the contingency that a future Commission might seek to reinstate the Title II Order.

Although AT&T explains that “conditional forbearance would provide an extra level of insurance against the contingency that a future, politically motivated

Commission might try to reinstate a ‘common carrier’ classification,”

we see no need to address the complicated question of prophylactic forbearance and find such extraordinary measures unnecessary.

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telecommunications service only if the entity that provides the transmission voluntarily undertakes to provide it indifferently on a common carrier basis. Such an offering is a common carrier service subject to Title II. Wireless Broadband Internet Access Order, 22 FCC Rcd at 5913-14, 32-33. In addition, a wireless broadband Internet access provider that chooses to offer the telecommunications transmission component as a telecommunications service may also be subject to the “commercial mobile service” provisions of the Act. SeeWireless Broadband Internet Access Order, 22 FCC Rcd at 5913-14, 33 and 40; and H.R. Conf. Report 104-458 (noting that the definition of

“telecommunications service” was intended to include commercial mobile service).

644 WTA Comments at 9-10.

645 See, e.g., WTA Comments at 8-10.

646 On June 14, 2017, NTCA and the United States Telecom Association filed a petition seeking temporary forbearance from USF contribution obligations imposed on broadband internet transmission services provided by RLECs on a common carriage basis, pending completion of comprehensive USF contribution reform by the Commission. Petition of NTCA-The Rural Broadband Association and the United States Telecom Association for Targeted, Temporary Forbearance Pursuant to 47 U.S.C. §160(c) from Application of Contributions Obligations on Broadband Internet Access Transmission Services Pending Universal Service Fund Comprehensive Contributions Reform, Docket No. 06-122 (filed June 14, 2017). See NTCA Comments at 19; NECA Comments at 6 & n.17 (both asserting that temporary forbearance from USF contribution obligations is warranted). NTCA notes that as that petition explains, “while providing RLECs with the voluntary ability to tariff broadband transmission is an important mechanical component of universal service, the maintenance of USF contribution obligations for the select class of providers that offers broadband in this manner is disparate and anti-consumer.” NTCA Comments at 19.

647 AT&T Comments at 99-100; see also CenturyLink Comments at 31 (asserting the Commission should “maintain and extend” the Title II Order forbearance framework).

648 AT&T Reply at 56; but cf. Free Press Comments at 12-13 (suggesting without elaboration that “Section 10 forbearance is predicated on the preservation of the nondiscriminatory outcomes secured by Sections 201 and 202”);

NASUCA Reply at 12 (arguing AT&T’s proposal should be rejected as forbearance is “intended to allow for flexibility in the application of specific regulations or elements of a statute, not for use as a path to circumvent present or future consideration of what should be the proper statutory classification of a service”).