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Official Opinion 2004-5

PRESS ADVISORY

Official Opinion 2004-5

April 21, 2004
To: 

Commissioner

Georgia Public Service Commission

Re: 

The Georgia Public Service Commission has authority over mobile and wireless providers of telecommunications services to the extent that the laws it administers apply to “telecommunications companies” as defined in O.C.G.A. §§ 46‑5‑162(17) (Supp. 2003) and 46-5-181 (Supp. 2003) and do not exempt mobile or wireless providers; the Georgia Public Service Commission also has authority over “phone-to-phone” internet protocol telephony as this service is described by the FCC, and over cable-based broadband service to the extent that the laws it administers apply to “telecommunications companies” as defined in O.C.G.A. §§ 46‑5‑162(17) (Supp. 2003) and 46-5-181 (Supp. 2003).

You have requested my opinion regarding the authority of the Georgia Public Service Commission (“GPSC” or “Commission”) over mobile and wireless providers of telecommunications services, providers of internet protocol (“IP”) telephony, and providers of cable-based broadband.  Your request references 1994 Op. Att’y Gen. 94-7 and subsequent changes to the relevant law.  In 1994 Op. Att’y Gen. 94-7, the Attorney General found that “cellular” service was not “telephone service,” and that therefore there was no statutory basis upon which the GPSC could exercise jurisdiction over cellular telecommunications services.  After that opinion was issued, however, the Telecommunications and Competition Development Act of 1995 (“TCDA”) and the Telecommunications Marketing Act of 1998 (“TMA”) (collectively the “Acts”) were enacted.  Both of these Acts, which are administered by the GPSC, made clear that the GPSC had authority over “telecommunications services” and “telecommunications companies.”  The threshold question, therefore, is whether the services included in your request meet the definition of “telecommunications services” in the Acts.  As your request involves the mechanics of complex technical services that are regulated at both the state and federal levels of government, I have relied upon descriptions of these services set forth in orders of the Federal Communications Commission (“FCC”) and decisions of the Ninth Circuit Court of Appeals.  I will address each type of service separately.

The first issue I will address is whether mobile and wireless service is included in the Acts’ definition of “telecommunications services.”  The term “telecommunications services” is defined as “services for the transmission of two-way interactive communications to the public for hire.  For purposes of illustration, the term ‘telecommunications services’ includes without limitation local exchange services and interconnection services.”  O.C.G.A. § 46‑5‑162(18) (Supp. 2003).  While neither wireless nor commercial mobile service is defined in either the TCDA or the TMA, the definitions of “telecommunication service” and “telecommunication service provider” are defined elsewhere in Title 46 to include wireless service and wireless service providers respectively.  O.C.G.A. § 46‑5‑3(a) (Supp. 2003).  In addition, the term “wireless service” is defined in the context of the Georgia Emergency Telephone Number '911' Service Act of 1977 with reference to federal law to include two-way radio communication services.[1]  This description is consistent with the definition of “telecommunications services” in the TCDA and TMA, which includes “the transmission of two-way interactive communications to the public for hire.”  O.C.G.A. § 46‑5‑162(18) (Supp. 2003).  Even though the definitions relied upon for this analysis are found in statutes not administered by the GPSC, in the absence of any conflicting authority within the Acts themselves it is reasonable to conclude that wireless service is a “telecommunications service” within the meaning of the TCDA and the TMA.

Having concluded that wireless or commercial mobile service is a “telecommunications service,” the remaining question is the significance of this inclusion as it relates to the authority of the GPSC.  As stated above the GPSC enforces both the TCDA and the TMA.  Both of these Acts include numerous provisions that reference obligations or liabilities of “telecommunications companies.”  Some of these statutes expressly exempt wireless providers, while others do not include any such exemption.[2]  That the legislature would include an express exemption for wireless providers in certain statutes indicates that wireless providers are bound by those statutes that apply to “telecommunications companies” and do not include any such exemption.  The GPSC only has “such powers as the legislature has expressly, or by fair implication, conferred upon it.”  Georgia Power Co. v. Georgia Pub. Serv. Comm’n, 211 Ga. 223, 226 (1954).  The extent of Commission authority over wireless or commercial mobile service is limited to those statutes administered by the GPSC that apply to “telecommunications companies” and do not provide any exemption for wireless providers.

The second type of service you reference is IP telephony.  As with wireless service, the threshold issue is whether IP telephony fits within the definition of “telecommunications services” in the TCDA and the TMA.  Although the FCC does not interpret the definition of “telecommunications services” under Georgia law, its analyses are useful in understanding the services in question.  The FCC has identified three different kinds of IP telephony.  The FCC concluded that IP telephony companies with services limited to the provision of software and hardware installed at customer premises are not providers of telecommunications services because they are not transmitting information.  In the Matter of Federal-State Joint Board on Universal Service, 13 F.C.C.R. 11501, 11543 (April 10, 1998) (“Universal Service Order”).  The term “telecommunications services” as used in the TCDA and the TMA similarly requires the transmission of communications.  O.C.G.A. §§ 46‑5‑162(18) (Supp. 2003) and 46‑5‑181 (Supp. 2003).  Based on the FCC’s finding that this particular service does not involve the transmission of information, IP telephony involving only the provision of software and hardware does not meet the definition of “telecommunications services” in the Acts.  Accordingly, the GPSC does not have authority over companies that provide this form of IP telephony.

The second form of IP telephony identified by the FCC involves “computer-to-computer” communication.  This communication involves the use of software and hardware to place calls between two computers that are connected to the internet.  Universal Service Order, 13 F.C.C.R. 11501, 11543.  The FCC has found that regardless of whether this form of IP telephony constituted “telecommunications,” there was no “provision” or “offering” of the service.  Id.  Voice communications over this form of IP telephony cannot be distinguished from other types of packets.  Therefore, the internet service providers that carry the information through their networks may not be aware that IP telephony software is being used by some customers.  Id.  For a company to meet the definition of “telecommunications company” in the Acts, it must offer telecommunications services.  O.C.G.A. §§ 46‑5‑162(17) (Supp. 2003) and 46‑5‑181 (Supp. 2003).  Based on the understanding that this type of service does not include an “offering” of telecommunications services, a company that provides this form of IP telephony is not a telecommunications company as defined in the TCDA and the TMA and is therefore not subject to the jurisdiction of the GPSC.

The last form of IP telephony identified by the FCC involves “phone-to-phone” IP telephony.[3]  “Phone-to-phone” IP telephony involves the creation of “a virtual transmission path between points on the public switched telephone network over a packet-switched IP network.”  Universal Service Order, 13 F.C.C.R. 11501, 11544.  The FCC has concluded that this form of IP telephony resembles a telecommunications service more closely than an information service.  Id.  While this conclusion alone does not establish that this form of IP telephony meets the definition of “telecommunications services” in the Acts, it provides a basis for analysis and comparison.  As explained by the FCC, “phone-to-phone” IP telephony involves the transmission of two-way interactive communications for hire.  Unlike with “computer-to-computer” IP telephony, “phone-to-phone” IP telephony, as described by the FCC, involves an affirmative offer by the company, and, as such, constitutes a telecommunications service “offered” by a telecommunications company.  This description meets the definition of “telecommunications services” under the TCDA and the TMA.  Therefore, the Commission has authority over the providers of “phone-to-phone” IP telephony services to the extent the statutes administered by the GPSC apply to “telecommunications companies.”[4]  As discussed above, this determination is based on the understanding of this service as posited by the FCC.  Because technology continues to evolve, the applicability of the TCDA or TMA requirements for a “telecommunications company” to a provider of “phone-to-phone” IP telephony may also change.

The final type of service encompassed in your request is cable-based broadband service.  This form of high-speed internet access involves information being transmitted over a cable broadband.  The Federal Telecommunications Act provides a sound background upon which to analyze the state Acts.  The federal Act 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.”  47 U.S.C. § 153(43).  The Ninth Circuit recently held that cable-based broadband service constitutes a telecommunications service within this definition.  Brand X Internet Services v. FCC, 345 F.3d 1120 (9th Cir. 2003).[5]

Consistent with the analysis undertaken with respect to the other services referenced in your inquiry, it must be determined whether satisfying the Federal Telecommunications Act definition of “telecommunications” means that the definition of “telecommunications services” in the TCDA and TMA is similarly satisfied.  Another Ninth Circuit decision, relied upon in Brand X, provides guidance on this question.  Prior to Brand X, the Ninth Circuit had found that the cable-based broadband service in question did not meet the definition of “cable service” under 47 U.S.C. § 541(b)(1) precisely because it was not a one-way transmission; rather, the service involved a two-way communication.  AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 2000).  Again, the TCDA defines “telecommunications services” to mean “the transmission of two-way interactive communications to the public for hire,” and the TMA adopted this definition.  O.C.G.A. §§ 46‑5‑162(18) (Supp. 2003) and 46‑5‑181 (Supp. 2003).  Consistent with the reasoning of the decisions of the Ninth Circuit, I conclude that cable-based broadband service meets these definitions.

As with “phone-to-phone” IP telephony, and for the reasons discussed in that analysis, I conclude that the Commission has authority over cable-based broadband service to the extent that the TCDA and the TMA apply to “telecommunications companies.”  The technologies at issue in this opinion continue to evolve, however, and these issues may need to be re-examined at some point in the future.

Therefore, it is my official opinion that the Georgia Public Service Commission has authority over mobile and wireless providers of telecommunications services to the extent that the laws it administers apply to “telecommunications companies” as defined in O.C.G.A. §§ 46‑5‑162(17) (Supp. 2003) and 46‑5‑181 (Supp. 2003) and do not exempt mobile or wireless providers; the Georgia Public Service Commission also has authority over “phone-to-phone” internet protocol telephony based upon the understanding of this service as described by the FCC, and over cable-based broadband service to the extent that the laws it administers apply to “telecommunications companies” as defined in O.C.G.A. §§ 46‑5‑162(17) (Supp. 2003) and 46-5-181 (Supp. 2003).

Prepared by:

DANIEL S. WALSH

Assistant Attorney General




[1]  O.C.G.A. § 46-5-122(12) (Supp. 2003) defines “wireless service” as “‘commercial mobile service’ as defined under Section 332(D) of the federal Telecommunications Act of 1996 (47 U.S.C. Section 157 et seq.).”  “Commercial mobile service” is defined as “any mobile service (as defined in section 153 of this title) that is provided for profit and makes interconnected service available to the public or to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission.  47 U.S.C. § 332(D).  47 U.S.C. § 153 defines “mobile service” to mean “a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves.”  This definition specifies that “mobile service” includes “both one-way and two-way radio communication services.”  47 U.S.C. § 153(27)(A).

[2]  For example, a certificate of authority issued by the GPSC, which is generally required prior to providing telecommunications services, shall not be required of a telecommunications company providing commercial mobile services.  O.C.G.A. § 46‑5‑163(b) (Supp. 2003).  However, the prohibition against abusive telemarketing acts or practices applies to telecommunications companies and does not include any exemption for providers of commercial mobile services.  O.C.G.A. § 46‑5‑187 (Supp. 2003).

[3]  The FCC set out four conditions for a service to meet in order to be characterized as “phone-to-phone” IP telephony.  The four conditions are: “(1) it holds itself out as providing voice telephony or facsimile transmission service; (2) it does not require the customer to use CPE [customer premises equipment] different from that CPE necessary to place an ordinary touch-tone call (or facsimile transmission) over the public switched telephone network; (3) it allows the customer to call telephone numbers assigned in accordance with the North American Numbering Plan, and associated international agreements; and (4) it transmits customer information without net change in form or content.”  Universal Service Order, 13 F.C.C.R. 11501, 11543-11544.

[4]  This is a reasonable result in light of GPSC’s exercise of jurisdiction over competition and marketing in the telecommunications industry.  For example, telecommunications companies, except for wireless providers, must be certified by the GPSC.  O.C.G.A. § 46‑5‑163(a) (Supp. 2003).  The TCDA also requires that telecommunications companies providing telecommunications services within Georgia contribute quarterly to the Universal Access Fund, O.C.G.A. § 46‑5‑167(b) (Supp. 2003), that the GPSC has access to the books and records of telecommunications companies, O.C.G.A. § 46‑5‑168(e) (Supp. 2003), and that a telecommunications company may not charge for services provided by a nonaffiliated third party without certification by that third party that it has received written authorization from the customer, O.C.G.A. § 46‑5‑171.1(a) (Supp. 2003).  The TMA outlines the required procedures for telecommunications companies to follow in confirming changes in a customer’s local exchange or long distance carriers, O.C.G.A. §§ 46‑5‑183 (Supp. 2003) and 46‑5‑84 (Supp. 2003), prohibits telecommunications companies from engaging abusive telemarketing, O.C.G.A. § 46‑5‑187 (Supp. 2003), and provides for penalties for violation of the article, O.C.G.A. § 46‑5‑189 (Supp. 2003).  It does not appear unreasonable or absurd to subject a provider of “phone-to-phone” IP telephony to any of the terms set forth in the Acts for telecommunications companies.

[5]  This decision vacated the conclusion of the FCC that cable modem service did not constitute a telecommunications service.  Inquiry Concerning High-Speed Access to the Internet over Cable and Other Facilities, 17 F.C.C.R. 4798, 4803 (2002).