Ruby Ranch Responds to the FCC

This local Colorado-based Internet cooperative has filed comments with the FCC. Shouldn't you do the same?

[May 8, 2002]

Dear Editors:

The Ruby Ranch Internet Cooperative is a small nonprofit association providing DSL to its members in a neighborhood in Colorado that is otherwise unserved by ILEC DSL or by cable modem service. We are very concerned about the FCC's proposed rulemaking, and we filed comments in the FCC proceeding. The comments are available on our website here. Excerpts follow:

In these areas where the number of broadband providers is either zero or one, representing most of the United States, it is frustrating and insulting to see the FCC deliberating on the fine-tuning of competition rules. It is likewise frustrating to see the FCC proposing cutbacks of the 1996 Act, an Act which represents the only avenue for broadband access for many Americans.

The FCC's dream world is, apparently, a world in which every American can freely select between an ILEC DSL provider and a cable television Internet access provider, the two being in cut-throat competition with each other, driving prices ever downward and performance ever upward.

That world does not exist. Most of the geographic area of the United States is still unserved by cable in 2002, and of the homes that are "passed" by cable, most are served by cable companies that do not provide cable modem Internet access. A wide majority of homes having telephone service are unserved by ILEC DSL. (Qwest, for example, admits that fully 64 percent of its customers can't get DSL.) Thus, most of the geographic area of the United States has no DSL and no cable modem service.

Even after several readings, the Coop has had difficulty discerning what exactly the FCC proposes in its rulemaking. The FCC says it proposes to redefine "telecommunications service" in a way that excludes DSL. But in practical terms, what would this mean for those who wish to provide DSL where the ILECs chooses not to provide it? It is possible to imagine at least two different consequences depending on what the FCC means by its proposed change.

A. Changing what services ILECs would be obligated to provide for resale. ILECs are required to "offer for resale at wholesale rates any telecommunications services that the carrier provides at retail to subscribers who are not telecommunications carriers." At present, ILECs provide in limited areas "finished" DSL service to subscribers, which they are currently required to offer for resale by others. It may be imagined that the FCC's new proposed definition of telecommunications services to the exclusion of DSL would merely mean that ILECs would no longer be required to provide their DSL services for resale. In such an event, ILEC UNEs such as unbundled loops and subloops would still be available to other DSL providers. Such a change would have no effect upon facilities-based DSL providers (providers such as the Coop that use their own DSLAMs along with UNEs to provide DSL).

B. Changing who is entitled to rent UNEs under the Act. Under the Act, the entities permitted to rent UNEs are telecommunications carriers if the UNEs will be used for the provision of "a telecommunications service." But if the FCC's new proposed definition of telecommunications services to the exclusion of DSL were meant to redefine which entities are to be permitted to rent UNEs, then (as discussed below) the Coop would no longer be able to rent UNEs, and indeed, it would appear no Internet access provider would be able to rent UNEs. The FCC, at the stroke of a pen, would eviscerate the 1996 Act.

The FCC's new "integration theory" makes no sense
DSL Internet connectivity is nothing more than the establishment of a transmission path between an end-user and a destination on the Internet. The provision of this connectivity, or transmission functionality, constitutes a telecommunications service under the Communications Act.

The fact that a DSL provider may offer additional functions and capabilities that are classified as information services does not change the nature of an Internet connectivity service—namely, the provision of transmission paths to other destinations on the Internet.

The FCC provides a more complete explanation for its belief that Internet connectivity is an information service in its more recent Cable Modem Order. For example, the FCC notes that Internet connectivity providers use a domain name system ("DNS"), where a domain name (e.g., www.rric.net) is converted or translated into an IP address (e.g., 206.168.115.162).

However, this translation function is no different than the translation function LECs perform when a customer dials directory assistance, dials the digits 9-1-1 which the ILEC converts into the 911 authority's seven-digit telephone number, or when a telecommunications carrier offers voice dialing whereby a customer can say, "call home," to reach his residence without having to dialing the digits of his home telephone number.

The FCC has never classified these other translation functions as information services. At most, the DNS translation function constitutes a "capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service," and as a result, is expressly excluded from the scope of the information services definition.

The uniform application of the FCC's "integration theory" necessarily leads to the result that there are no longer any telecommunications services or telecommunications services providers in this country.

The FCC's policy objectives are best achieved by classifying DSL Internet connectivity as a telecommunications service
The FCC has identified four policy goals for this proceeding. As discussed below, these objectives are best achieved by classifying DSL Internet connectivity as a telecommunications service rather than an information service.

A. Broadband Service to All Americans. The FCC's "primary policy goal [is] to encourage the ubiquitous available of broadband to all Americans." There are thousands of neighborhoods across the country where broadband Internet access is not available because the incumbent LEC and cable company have decided not to provide the service. In most instances, the most effective way (and in some instances, the only way) for neighborhoods to self-provision DSL service is to lease subloops from the incumbent LEC. The FCC's removal of the principal way that neighborhoods can provision their own DSL services (preventing them from leasing subloops as UNEs) is not a step that encourages the ubiquitous availability of broadband to all Americans.

B. Conceptualize Broadband Broadly. The FCC seeks to develop a regulatory framework that "will conceptualized broadband broadly to include any and all platforms capable of . . . [supporting] access to the Internet". This objective is reached by classifying all providers of Internet connectivity in the same way, whether as telecommunications services providers or information services providers.

C. Reduced Regulation. The FCC states that broadband services should exist in "a minimal regulatory environment that promotes investment and innovation in a competitive market." The FCC can achieve this objective by exercising its authority under Section 10 of the Act to forbear from enforcing upon competitive providers of DSL service any or all of the common carrier obligations that the Act imposes on telecommunications carriers. There is no reason to subject competitive providers of DSL service to common carrier regulation. It may, however, be appropriate to impose some regulation on RBOC DSL services.

D. Regulatory Parity. The FCC seeks to develop an analytical framework that is "consistent, to the extent possible, across multiple platforms." This objective can be achieved by classifying the provision of all Internet connectivity services as telecommunications services.

Regards,

Carl Oppedahl , Director,
Ruby Ranch Internet Cooperative Association

For more information about the Ruby Ranch Internet Cooperative Association, see "The Coop: Who We Are". >