Excerpt from a letter sent by Comcast Corporation to FCC Secretary Marlene Dortch:
…During these discussions, we emphasized that (1) the current record cannot support a finding that all business data services (“BDS”) are offered on a common carrier basis; (2) the Chairman’s October 7 Fact Sheet correctly recognizes that it is unnecessary and would be both contrary to the record and counterproductive to subject the robustly competitive Ethernet segment to ex ante rate regulation; and (3) evidence of an increasingly competitive BDS marketplace also warrants treading lightly in applying rate regulation to legacy TDM services offered by incumbent local exchange carriers (“ILECs”). In addition, on October 18, 2016, the undersigned spoke by telephone with Mr. Litman, and on the same day, Kathryn Zachem of Comcast spoke by telephone with Matthew DelNero, Chief of the Wireline Competition Bureau, and Stephanie Weiner, Associate General Counsel and Special Advisor to Chairman Wheeler, regarding the same matters.
No Common-Carrier Regulation of Non-Dominant Private Carriers. We began by explaining that, while the Fact Sheet suggests that BDS providers will be treated as common carriers (with “rare exceptions”), it is not necessary and would be unlawful to subject competitive BDS providers – which in many cases offer service on a private carrier basis – to mandatory, across-the-board common carrier regulation. Under both the applicable statutory definition and the NARUC I test, the key determinant of whether a carrier provides a common carrier “telecommunications service” is “‘the characteristic of holding oneself out to serve indiscriminately.'” The D.C. Circuit has made clear that the Commission must determine whether a provider is acting as a common carrier on an offering-by-offering basis, and may not deem a diverse array of offerings to be common carriage based on “evidence” about just a few. We explained, in light of this precedent, that the current record simply cannot support the conclusion that all BDS products are offered on a common carrier basis, and that any such blanket finding likely would not survive judicial review. We noted that the FNRPM’s bald and unsupported assertion that all BDS services are common carriage did not provide fair notice of the complicated, fact-bound issues that must be considered as part of any effort to classify each and every BDS offering as common carriage. And as Comcast explained in a recent letter, the record developed in this proceeding demonstrates that various providers – including cable providers, competitive fiber providers, and even Verizon itself (the chief proponent of industrywide common-carrier regulation) – offer numerous BDS products on a private carrier basis.