Federal Communications Commission

“ There is nothing in the Communications Act that restricts the Commission in translating its duty to further the public interest as it did in the particular situation before it. In granting Fetzer's application and setting the denial of the petitioner's down for a hearing after fully canvassing the situation, the Commission brought itself within the explicit provisions of the Communications Act and applied them with that flexibility of procedure which Congress has put into the Commission's own keeping. ”

“ In the regulation of broadcasting, Congress moved outside the framework of protected property rights. See Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037. Congress could have retained for itself the granting or denial of the use of the air for broadcasting purposes, and it could have granted individual licenses by individual enactments as in the past it gave river and harbor rights in individuals. Instead of making such a crude use of its Constitutional powers, Congress, by the Communications Act of 1934, 48 Stat. ”

“ A license permits broadcasting, but the lisensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves. ”

“ The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. ”

“ This choice of the most appropriate regulatory mechanism is, we believe, one entrusted to our discretion, especially with respect to terminal equipment where such offerings have historically been viewed as only within the Commission's ancillary jurisdiction, not its Title II jurisdiction, when offered separately from transmission services. Congress has recognized that communications services are highly dynamic and changing and that the Commission must have flexibility to respond to these changing conditions. ”

“ There are literally thousands of unregulated computer service vendors offering competing services connected to the interstate telecommunications network. The services they provide are many and varied. The only limitation on the types of services offered are those arising from the constraints of their own entrepreneurial capabilities and, in a very real sense, the implicit requirement that they structure their services so as to avoid crossing a regulatory boundary that would subject them to regulation. ”

“ It requires a confidence that I believe we can and will develop as we move forward. I expect that we will choose to abandon some of our heavier weapons as we proceed through the jungle trails and become more familiar with the environment. Once we begin to distinguish shadow from substance, our perceptions are likely to change.
I am gratified that the Commission has agreed to broaden the language of the Order to permit affiliates of the competitive entities to provide the necessary firmware in both network and customer premises equipment. ”

“ Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest. ”

“ Thirty years of consistent administrative construction left undisturbed by Congress until 1959, when that construction was expressly accepted, reinforce the natural conclusion that the public interest language of the Act authorized the Commission to require licensees to use their stations for discussion of public issues, and that the FCC is free to implement this requirement by reasonable rules and regulations which fall short of abridgment of the freedom of speech and press, and of the censorship proscribed by § 326 of the Act. ”

“ Finally, I am confident that during the transition period the Joint Board of FCC and State regulators will be able to arrive at a separations approach that will not mean a significant increase in telephone bills for any customer as a result of deregulation of terminal equipment.
5. Why permit regulated carriers to provide unregulated enhanced services? AT&T, GT&E and 1500 smaller telephone companies have
77 F.C.C.2d 384, 520 cooperated to assemble an integrated communications network that I consider to be a wonder of the modern world. ”

“ On the contrary, it has a major role to play as the Congress itself recognized in § 326, which forbids FCC interference with 'the right of free speech by means of radio communication.' Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. ”

“ The rapidity with which technological advances succeed one another to create more efficient use of spectrum space on the one hand, and to create new uses for that space by ever growing numbers of people on the other, makes it unwise to speculate on the future allocation of that space. It is enough to say that the resource is one of considerable and growing importance whose scarcity impelled its regulation by an agency authorized by Congress. ”

“ Moreover, the status of mobile telephone equipment is currently being examined in our Cellular Mobile Radio proceeding CC Docket No. 79-318, FCC 79-774, released January 8, 1980. Our action here in deregulating CPE under Title II is not intended to alter in any way the requirements imposed for the licensing of radio equipment under Title III of the Act, even though it may be separated from the carrier's provision of basic services. This decision applies to CPE provided in the 48 contiguous states, Alaska, Hawaii, Puerto Rico, and the Virgin Islands. ”

“ The terms defined in section 2510 of title 18, United States Code, have, respectively, the meanings stated in that section. (2) The term ``call-identifying information ́ ́ means dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a telecommunications carrier. (3) The term ``Commission ́ ́ means the Federal Communications Commission. ”

“ Non-regulated equipment vendors have been instrumental in applying computer technology to CPE, and have been the primary leaders in innovation in this area. The degree to which innovation occurs independent of the telecommunications network also reflects the fact that CPE is clearly severable from the underlying utility service to
77 F.C.C.2d 384, 441 which it is attached. There is nothing inherent in any carrier-provided CPE, including the basic telephone, that necessitates its provision as an integrated part of a carrier's regulated transmission service. ”

“ A sensible reading of the jurisdictional provisions in the context of the substantive provisions to which they relate gives no warrant for denying significance to the classification made by Congress between those orders for which review can only come before the local district courts, and those five types of orders, explicitly characterized, which alone can come before the Court of Appeals for the District. And an order denying consent to an application for a transfer is not one of those five, for it is not an application for 'a radio station license' in any fair intendment of that category. ”

“ The proposed industry structure and deregulation could totally preclude AT&T from offering either CPE or enhanced services if the proposed interpretation of the Consent Decree is not accepted; and
(4) The basic/enhanced dichotomy may be a serious disincentive or impediment with respect to the construction of a nationwide digital core network; and we may be faced with the prospect of a myriad of interconnected sub-networks,
77 F.C.C.2d 384, 516 owned by many entities, with no one entity in a position to assert overall technical planning authority. ”

“ Traditionally, transmission capacity has been offered for discrete services, such as telephone service. With the incorporation of digital technology into the telephone network and the inclusion of computer processing capabilities into both terminal equipment located in the customer's premises and the equipment making up a firm's "network," this is no longer the case. Telecommunications service is no longer just "plain old telephone service" to the user. A subscriber may use telephone service to transmit voice or data. ”

“ The common carrier offering of basic transmission services are communications services and regulated as such under traditional Title II concepts. Consistent with the determinations made in the First Computer Inquiry, we find that regulation of enhanced services is not required in furtherance of some overall statutory objective. In fact, the absence of traditional public utility regulation of enhanced services offers the greatest potential for efficient utilization and full exploitation of the interstate telecommunications network. ”

“ Under this scenario, the regulatory demarcation between basic and enhanced services becomes relatively clear-cut. An enhanced service is any offering over the telecommunications network which is more than a basic transmission service. In an enhanced service, for example, computer processing applications are used to act on the content, code, protocol, and other aspects of the subcriber's information. ”

“ The issue had surfaced briefly in the 98th Congress, where proposals to codify and expand the FCC's minority ownership policies were the subject of extensive hearings in the House. See Minority Participation in the Media: Hearings before the Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, 98th Cong., 1st Sess. (1983) ; Parity for Minorities in the Media: Hearing on H.R. 1155 before the Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, 98th Cong., 1st Sess. ”

“ The petitioner's contentions are that under the Communications Act economic injury to a competitor is not a ground for refusing a broadcasting license and that, since this is so, the respondent was not a person aggrieved or whose interests were adversely affected, by the Commission's action, within the meaning of Section 402 (b) of the Act, 47 U.S.C.A. § 402 (b) , which authorizes appeals from the Commission's orders. ”

“ For its universality, its versatility and its economy, our telecommunications network is unmatched by any in the world. I believe it would ill-serve the public interest if AT&T, GT&E or any other participant in the network were denied the opportunity and the challenge of bringing their financial resources, their tradition of universal service and importantly their in-place research capabilities to the rich new compunications field. ”

“ A carrier's ability and incentive to engage in anticompetitive conduct in adjacent markets must be measured with some recognition of the parameters of those markets. Thus, what must be recognized is that while market power in the provision of telephone service may be appropriately measured within both local and national geographic markets, the provision of enhanced services and CPE has been largely undertaken, and increasingly so, on a national basis. ”

“ Because the communications/data processing boundary was being examined in this proceeding, the regulation of resale entities under Title II was contingent on the regulatory framework established here. See n. 42, supra. Accordingly, the prospect that some currently regulated resale entities might no longer be regulated under Title II has been recognized for some time.
77 F.C.C.2d 384, 434 129. In our judgment, regulation of enhanced communications services would limit the kinds of services an unregulated vendor could offer, restricting this fast-moving, competitive market. ”

“ Accordingly, it is consistent with the Tentative Decision to refer to services that would fall within the voice and BNV categories as "basic" transmission services. Likewise, the ENV category was intended to encompass those computer offerings which are more than basic services, and it included both voice and data applications. The "non-voice" designation was given to the category to include human-to-computer services and make clear that such services were not "voice" services because of any voice synthesis or speech recognition capabilities. ”