[10291] in Commercialization & Privatization of the Internet
Gore's Title 7 Telcom Legislation
daemon@ATHENA.MIT.EDU (James Love)
Wed Feb 16 04:11:27 1994
Date: Wed, 16 Feb 1994 04:15:01 -0500 (EST)
From: James Love <love@essential.org>
To: com-priv@psi.com
The following is the text of Gore's proposed title 7 telecommunications
legislation (sans the findings section), as of February 2. NTIA has
circulated this widely to Congressional staffers, industry, and a few
public interest groups. NTIA reportedly is asking Jack Fields (R-TXT) to
insert the bill into Markey's HR 3636 during a mark-up session next
week. That is to say, the Administration wants its legislation passed
without any public hearings. NTIA did not release the draft language
very widely until after the Markey hearings were finished, so there was
no opportunity for discussion then.
The principle features of title 7 are the sweeping pre-emptions of state
regulation of rates for carriers. Not only are states pre-empted from
providing any rate regulation where the FCC determines there is effective
competition, but the FCC can prohibit states from using cost of service
regulation altogether, even for dominate carriers who have market power.
As indicated by Gore earlier, carriers will be allowed to substitute
"inkind" services instead of money to satisfy certain universal service
requirements, raising some pretty important issues about how those
services are priced, anticompetitive practices, and who should decide
what types of services are needed for universal service.
jamie
SEC. 704. NEW TITLE ADDED TO THE COMMUNICATIONS ACT.
The Communications Act of 1934 (47 U.S.C. 701 et seq.) is
amended by adding a new Title VII, entitled "[ ]" with the
following sections:
" SEC. 701. DEFINITIONS.
For purpose of this Title, the following terms are defined:
"(a) "Title VII firm" means a person that is subject to
Federal Communications Commission jurisdiction under this Title.
"(b) "Title VII broadband services" means broadband,
interactive, switched, digital transmission services offered by
Title VII firms to end users.
"(c) "Other Title VII services" means communication
services offered by a Title VII firm, other than Title VII
broadband services, that: (1) use the same facilities as Title
VII broadband services, and (2) would be subject either to common
carrier regulation under Title II, or regulation under Title VI,
if offered by non-Title VII firms.
"(d) "Title VII services" means Title VII broadband
services and other Title VII services.
"SEC. 702. ELIGIBILITY TO ELECT TITLE VII REGULATION.
"(a) Any person that offers broadband, interactive,
switched, digital services may elect to apply to the Commission
for such services to be regulated under this Title.
"(b) To be eligible to become a Title VII firm in a
particular state, the applicant must offer Title VII broadband
services to at least 20 percent of its subscribers in that state.
The Commission may waive the threshold subscriber percentage in
specific cases, or modify it by rule of general applicability, if
it finds doing so would advance the goals of this Title.
"(c) A Title VII applicant must certify to the Commission
that it meets the condition in subsection (b) and provide such
documentation and other information as the Commission may
require. Its election to become a Title VII firm will become
affective 180 days following such certification and provision of
such documentation and information, for each state for which the
condition is met, unless the Commission, after notice and
comment, disallows that application prior to that time.
"SEC. 703. COMMISSION AUTHORITY.
"(a) The Commission shall apply the regulatory regime
established under this Title to all Title VII services, but only
in those states for which a person offering the services is a
Title VII firm.
"(b) Services subject to Commission authority under this
Title, including both Title VII broadband services and other
Title VII services, shall not be subject to either the provisions
of Title II or Title VI.
"(c) The Commission shall, by rule, establish procedures
and standards necessary to implement this Title.
"(d) The Commission shall treat a Title VII firm as a
carrier, or common carrier, with respect to any Title VII
services it offers, for the purposes of applying Sections 310(b),
332(c), 396(h)(1), 406, 407, 408(g), 410(b), 410(c), 412, 413,
415, 503(a), 503(b), 806, and 810 of this Act.
[to add savings clause somewhere re any FCC Title II or
other authority stemming from changes to AT&T Consent Decree, as
below:
[(e) Nothing in this Title shall be construed as altering
the Commission's regulation of the activities of the Bell
Operating Companies under Title II that pertain to regulation of
[long distance], manufacturing, electronic publishing, and alarm
monitoring services.]
"SEC. 704. STREAMLINED REGULATORY APPROACH FOR TITLE VII
SERVICES.
"(a) Title VII firms shall provide open access to their
networks so that anyone, including end users and information
service providers, can use Title VII services to transmit
information, including voice, data, and video programming, on a
non-discriminatory basis. The Commission may establish rules, as
needed to ensure that Title VII firms comply with this provision.
"(b) The Commission shall adopt rules, in consultation with
the states, to establish universal service obligations applicable
to Title VII firms. Such obligations may include contribution,
either financial or in-kind, to the preservation and advancement
of universal service consistent with universal service obligation
imposed under either Titles of this Act, whether or not the
Title VII firms are subject to the rate regulation provision of
this Title.
"(c) The Commission shall seek to promote the
interconnection and interoperability of networks providing Title
VII services. To further this goal, the Commission is authorized
to take actions that facilitate industry standards-setting
processes, including the promulgation of procedures and
timetables for the adoption of industry standards. The
Commission shall have the authority to establish interconnection
and interoperability standards or requirements by rule if it
finds that the industry standards-setting process is not
functioning to accomplish this goal within a reasonable period of
time, or that promulgating such standards or requirements is
necessary to advance the goals of this Title.
"(d) The Commission shall adopt rules as are necessary and
feasible to ensure that Title VII services are accessible and
usable by individuals with disabilities, including individuals
with functional limitations of hearing, vision, movement,
manipulation, speech and interpretation, and are available to all
educational institutions in the nation.
"(e) The Commission shall regulate the rates for Title VII
services only if it finds that a Title VII firm has market power
with respect to such services. The Commission shall conduct
proceedings to establish guidelines or standards for defining
"market power" for the offering of Title VII services. The
Commission is also authorized to adopt transitional rules, as
needed, for the application of such rate regulation before it has
made a determination regarding a Title VII firm's market power.
However, the Commission shall impose such transitional rate
regulation only on Title VII firms that, at the time of their
application for Title VII status, are regulated by the Commission
under Title II as a common carrier with market power, or under
Title VI as a cable operator that is not subject to effective
competition.
"(f) For any Title VII services subject to rate regulation,
the Commission has the authority to impose requirements to
provide public notice regarding such rates, through tarrifing or
some other appropriate means, and to establish, by rule,
procedures and standards to ensure that rates are just and
reasonable.
"(g) With respect to the offering of Title VII services, the
Commission shall promulgate rules, as necessary, to address the
concerns reflected in Sections 223 through 229 of Title II.
"(h) The Commission may adopt such regulations as necessary
to ensure that the delivery of video programming directly to
subscribers via Title VII services is consistent with the
principles and objectives of section 325(b), 611, 614, 615,
and 632 of this Act. Providers of video programming directly to
subscribers via Title VII services shall be subject to the
payment of fees imposed by a local franchising authority, in leu
of the fees required of a cable operator under section 622. The
rate at which such fees are imposed shall not exceed the rate at
which franchise fees are imposed on any cable operator
transmitting video programming in the same service area.
"(i) The Commission may also impose additional requirements
by rule, or issue such orders, as necessary, to carry out the
purposes of this Title.
"(j) The Commission shall establish procedures for
resolving expeditiously any complaints filed by any entity
against a Title VII firm and alleging a violation of the terms of
Title VII, or a Commission order issued pursuant to its Title VII
authority.
"SEC. 705. STATE AUTHORITY TO REGULATE TITLE VII SERVICES.
"(a) Notwithstanding any other provision of this Act, no
state or local government may regulate entry into the market for
the provision of any Title VII services.
"(b) State governments may regulate rates for any Title VII
services only pursuant to the authority provided under this
Title.
"(c) No state or local government may regulate rates for
any Title VII service if the Commission finds, or has found, that
the Title VII firm lacks market power in the provision of such
services.
"(d) States may regulate rates for intrastate services,
subject to the following conditions:
"(1)For those intrastate Title VII broadband services for
which the Commission finding in subsection (c) has not been
made, a state may regulate the rates for such services
pursuant to models or standards established by the
Commission for rate regulation. The Commission shall, after
notice and comment, establish such models or standards in
consultation with states. A Title VII firm subject to state
regulation under this subsection, or any other interested
party, may petition the Commission for review of the state's
compliance with the Commission's models or standards for
rate regulation. If the commission declines to review the
state's action, it may do so in an order without stating its
reasons, and such order is not subject to appeal in the U.S.
courts. If the Commission accepts the petition for review,
it must provide the state, the Title VII firm, and other
interested parties an opportunity to comment. Following its
review of such comments, the Commission shall issue an
order, including findings on whether the state has so
compiled an explanation of the Commission's reasons, and
directions for such relief as it finds necessary, and such
order shall be subject to appeal in the U.S. courts.
"(2)For those intrastate other Title VII services for
which the Commission finding in subsection (c) has not been
made, states may regulate the rates for such services;
provided that the Commission may preempt such state
regulation, but only to the extent necessary to avoid direct
conflict between state regulatory actions and the policies
implemented under this Title.
"(e) The Commission is granted the authority to preempt
other state or local regulations concerning other terms or
condition of a Title VII firm's offering, but only to the extent
such regulation is found to conflict with the policies and
provisions established under this Title.
"SEC. 706. REMEDIES.
"The Commission may award damages to any person claiming to
be damaged by a Title VII firm for a violation of, or failure to
comply with, any provision of this Title or any Commission order
issued pursuant to this Title
SEC. 705. CONFORMING AMENDMENT.
(a) Section VII of the Communications Act of 1934, which is
labeled "Miscellaneous Provisions" and includes Sections 701
through 713, is changed to Title VIII and the Sections renumbered
to be Sections 801 through 813.
(b) Section 2(b) of the Communications Act is amended to
read "Except as provided in sections 223 through 227, inclusive,
and subject to the provisions of section 301, title VI, and
Section 705 ..."
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James Love, Taxpayer Assets Project; internet: love@essential.org
P.O. Box 19367, Washington, DC 20036; v. 202/387-8030; f. 202/234-5176
12 Church Road, Ardmore, PA 19003; v. 215/658-0880; f. 215/649-4066
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