Glossary of Key Terms

In This Glossary

• Communications Act
• Title I
• Title II
• Telecommunications service
• Information service
• Transmission component
• Ancillary authority
• Brand X

• Comcast decision
• Forbearance
• Notice of Proposed Forbearance
• Sections 201, 202, and 208
• Section 222
• Section 254
• Section 255
• Section 332(c)

Communications Act

The statute that created the Federal Communications Commission, often referred to as “the Act.” The Act’s first section states that Congress created the Commission in order “to make available, so far as possible, to all people of the United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communications service with adequate facilities at reasonable charges, for the purpose of the national defense, [and] for the purpose of promoting the safety of life and property through the use of wire and radio communication.” In 1996, Congress adopted a major overhaul of the Act.

The Act is divided into seven titles. The titles cited most frequently are Titles I (general provisions, including key definitions), II (telecommunications services), III (broadcasting, cell phone service, and other wireless services), and VI (cable television).

Title I

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The section of the Act that includes general provisions and definitions. It is the source of the Commission’s “ancillary authority”—the authority to take certain actions that are not expressly authorized by other provisions of the Act, but are related (“ancillary”) to those provisions.

In 2002, the Commission decided that cable broadband services should be subject only to the Commission’s ancillary authority under Title I rather than its more explicit authority under Title II. After the Supreme Court decided this was one permissible interpretation of the Act, the Commission applied Title I to broadband services provided over telephone wires (DSL) and power lines (Broadband over Power Lines), and to wireless broadband services. In April 2010, a decision by the U.S. Court of Appeals for the D.C. Circuit cast serious doubt on the Commission’s ability to protect broadband consumers under Title I.

Title II

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The section of the Act that applies to “telecommunications services”— services sold to the general public that are used to transmit information without change in the form or content of the information. Telephone service is clearly a “telecommunications service” (it transmits your voice, unchanged, to the person at the other end of the line) and for several years the Commission also considered the transmission component of DSL service to be a “telecommunications service” (it transmits data, unchanged, from your computer to another computer).

Title II helps ensure a competitive market for telecommunications services, and it gives basic protections to consumers who use them. For example, Title II prohibits “unjust or unreasonable” practices by providers of telecommunications services and ensures that companies do not violate consumers’ privacy, that users are free to connect with other users of their choosing, and that the disabled have reasonable access to telecommunications services.

In 1996, Congress added a very important provision to Title II that requires the Commission to refrain (“forbear”) from applying any provision that is not necessary to protect consumers or the public interest. This lets the Commission tailor its application of the statute to evolving technologies and changing markets.

Telecommunications service

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A service sold to the general public that is used to deliver information without change in the form or content of the information. Telephone service is clearly a “telecommunications service” (it transmits your voice, unchanged, to the person at the other end of the line) and for several years the Commission also considered the transmission component of DSL service to be a “telecommunications service” (it transmits data, unchanged, from your computer to another computer).

Information service

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In basic terms, the applications that run over the “pipes” of a communications network and depend on computers to generate, store, or process information. For example, e-mail and e-commerce are information services.

Transmission component

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A communications path that enables a consumer to transmit a message to another point, with no computer processing or storing of the information, other than the processing or storage needed to convert the message into electronic form and then back into ordinary language for purposes of transmitting it over the network. For example, when customers buy broadband access service they purchase a transmission component that facilitates the transfer of bits from their home computer to the Internet (this transmission component is often bundled with other services, like technical support and e-mail accounts).

Ancillary authority

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The authority to take certain actions that are not expressly authorized by other provisions of the Act, but are related (“ancillary”) to those provisions. A number of provisions in the Communications Act explicitly give the Commission authority to issue rules or orders to achieve some goal. For example, section 254 gives the Commission the responsibility to ensure that consumers in all regions of the nation have access to telecommunications services. The Supreme Court has decided that in some circumstances the Commission can take an action even if it the statute does not explicitly tell it to do so, as long as the action advances its explicit responsibilities. This limited authority is called the Commission’s “ancillary authority.”

Until recently, it was widely believed that the Commission’s ancillary authority allowed it to pursue basic, light-touch, broadband policies, including protecting consumers and promoting competition by ensuring transparency, protecting consumers’ privacy, ensuring that persons with disabilities have access to broadband, protecting against cyber-attacks, and preserving the free and open Internet. But in April 2010, the U.S. Court of Appeals for the D.C. Circuit ruled in Comcast v. FCC that the Commission’s ancillary authority is more limited than previously thought. As a result, the Commission is exploring other legal frameworks that would support its limited but vital role in broadband policy.

Brand X

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A 2005 Supreme Court case, National Cable and Telecommunications Association v. Brand X Internet Services. In Brand X, a majority of Supreme Court Justices deferred to the Commission’s 2002 decision that the Communications Act allowed it to classify cable broadband service as solely an “information service” that was subject to the Commission’s ancillary authority, but not to Title II. The majority found that the statute was ambiguous, concluding that “[t]his leaves federal telecommunications policy in this technical and complex area to be set by the Commission.” The majority also stated that “the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change.”

Justice Scalia, joined by Justices Souter and Ginsburg, strongly disagreed with the Commission. They concluded that cable broadband services must be recognized as including a telecommunications services component subject to Title II.

Comcast decision

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An April 2010 decision of the D.C. Circuit, Comcast v. FCC. The Comcast decision raises serious doubt about the Commission’s ability, under the legal framework that it chose to adopt in 2002, to protect consumers, promote competition, and ensure that all Americans can benefit from broadband. The case began in 2007, when users discovered that Comcast was secretly degrading its customers’ lawful use of BitTorrent and other peer-to-peer applications. In 2008, the FCC found Comcast in violation of federal Internet policy as stated in various provisions of the Communications Act and in Commission decisions.

The court held that because of the way that the Commission classified cable modem service in 2002—as solely an information service subject only to Title I, with no telecommunications service component subject to Title II—the Commission had failed to establish that it could take action with respect to Comcast’s secret degrading of its customers’ lawful Internet traffic.

View the Comcast v FCC case.

Forbearance

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The Commission’s obligation under section 10 of the Communications Act to refrain from applying provisions of the Act if it determines that the public interest requires restraint. The Commission’s decisions to forbear are not easily reversed, and the Commission has in fact never reversed a decision to forbear. In 1996, Congress directed the FCC to use its forbearance power to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” This authority allows the Commission to narrowly tailor its rules to new technologies and evolving markets.

Notice of Proposed Forbearance

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A procedural mechanism for proposing a “third way” legal framework that would apply only a handful of provisions in Title II to wireline broadband access services. This formal proposal to “forbear” would be released only if a majority of the Commissioners voted to issue it. If the Commission did vote to issue the proposal, the public would then have an opportunity to submit comments on the best way forward. The proposal would allow the Commission to tailor the requirements of Title II so that they conform precisely to the unique characteristics of broadband access services. It would also make it difficult for the Commission to later apply additional provisions of Title II to broadband access services.

Sections 201, 202, and 208

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Sections 201 and 202 are provisions of Title II of the Communications Act that prohibit telecommunications carriers from engaging in unjust and unreasonable practices. Section 208 allows the filing of complaints with the FCC to enforce these provisions.

Read full text of section 201, section 202 and section 208.

Section 222

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A section of Title II of the Communications Act that requires providers of telecommunications services to protect consumers’ privacy. In 2005, a unanimous Commission stated that “[c]onsumers’ privacy needs are no less important when consumers communicate over and use broadband Internet access than when they rely on [telephone] services.”

Read full text of Section 222.

Section 254

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Also known as the “universal service” section, a provision of Title II of the Communications Act that requires the Commission to pursue policies that make services available at affordable rates, encourage access to services in all regions of the Nation, and avoid large rate disparities between urban areas and rural, insular, and high-cost areas. Reforming the Commission’s universal service programs to provide access to broadband is a key element of the National Broadband Plan.

Read full text of Section 254.

Section 255

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A section of Title II of the Communications Act that requires telecommunications service providers to make their services accessible to individuals with disabilities, unless doing so is not reasonably achievable. In 2005, a unanimous Commission committed to “exercise our Title I ancillary jurisdiction to ensure achievement of important policy goals of section 255” with respect to broadband access.

Read full text of Section 255.

Section 332(c)

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A section of Title III of the Communications Act that Congress adopted in 1993 to address emerging wireless services such as cell phone service. Congress specified that Title II applies to these services, but it also provided that the Commission may refrain (or “forbear”) from enforcing any provision other than the core requirements of sections 201, 202, and 208. The Commission has in fact refrained from applying many provisions of Title II to wireless services, and this approach has been advocated as a model for wireline broadband.

Read full text of Section 332(c).