12
of 1996, which amended the Communications Act. The
Telecommunications Act subjects a “telecommunications
service,” the successor to basic service, to common carrier
regulation under Title II.
47 U.S.C. § 153(51) (“A
telecommunications carrier shall be treated as a common
carrier under [the Communications Act] only to the extent
that it is engaged in providing telecommunications
services.”). By contrast, an “information service,” the
successor to an enhanced service, is not subject to Title II.
The Telecommunications Act defines a “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.” Id. § 153(53). It defines telecommunications
as “the transmission, between or among points specified by
the user, of information of the user’s choosing without change
in the form or content of the information as sent and
received.” Id. § 153(50). An information service is an
“offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making
available information via telecommunications.”
Id.
§ 153(24). The appropriate regulatory treatment therefore
turns on what services a provider offers to the public: if it
offers telecommunications, that service is subject to Title II
regulation.
Tracking the Commission’s approach to adjunct-to-basic
services, Congress also effectively created a third category for
information
services
that
facilitate
use
of
a
telecommunications service.
The “telecommunications
management exception” exempts from information service
treatment—and thus treats as a telecommunications service—
“any use [of an information service] for the management,
control, or operation of a telecommunications system or the
management of a telecommunications service.” Id.
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