Does the Georgia Public Service Commission have authority over wireless/mobile carriers, voice-over-IP telephony providers, and cable-modem internet service providers under the Telecommunications and Competition Development Act of 1995 and the Telecommunications Marketing Act of 1998?

Plain-English summary

In 1994, the AG had concluded that the GPSC had no jurisdiction over cellular service because cellular was not "telephone service" under the then-existing statutes (1994 Op. Att'y Gen. 94-7). Two later statutes, the Telecommunications and Competition Development Act of 1995 (TCDA) and the Telecommunications Marketing Act of 1998 (TMA), changed the regulatory framework by introducing the broader concepts of "telecommunications services" and "telecommunications companies" and giving the GPSC authority to administer them. By 2004, the question had become whether wireless, voice-over-internet-protocol (VoIP), and cable-modem broadband services fall within those broader terms.

The AG walked through three categories.

Wireless and mobile. "Telecommunications services" in O.C.G.A. § 46-5-162(18) means "services for the transmission of two-way interactive communications to the public for hire." Other parts of Title 46 (§ 46-5-3(a) and § 46-5-122(12)) define wireless service in two-way-radio terms consistent with this. The General Assembly also included specific wireless-provider exemptions for some statutes (e.g., the certificate-of-authority requirement in § 46-5-163(b)), which would be unnecessary if wireless providers were not generally captured by "telecommunications companies" elsewhere. So the GPSC has jurisdiction over wireless providers to the extent the relevant statutes apply to "telecommunications companies" and lack a wireless-specific exemption. The GPSC's authority is bounded by what the General Assembly has expressly or impliedly granted (Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 226 (1954)).

IP telephony. The FCC distinguishes three forms in its 1998 Universal Service Order:

1. Software/hardware-only providers. No transmission, so not telecommunications services. GPSC has no jurisdiction.
2. Computer-to-computer VoIP. No "offering" of telecommunications service. GPSC has no jurisdiction.
3. Phone-to-phone IP telephony. Resembles a telecommunications service per the FCC: an affirmative offering of two-way interactive communications between points on the public switched telephone network, even though the underlying transmission uses packet-switched IP networks. This is "telecommunications services" under the TCDA and TMA. GPSC has jurisdiction to the same extent as for any telecommunications company.

Cable-based broadband. Federal courts (the Ninth Circuit's Brand X, 345 F.3d 1120 (2003), and AT&T Corp. v. City of Portland, 216 F.3d 871 (2000)) treated cable-modem broadband as a telecommunications service involving two-way interactive communications, fitting the federal definition in 47 U.S.C. § 153(43). That mirrors the TCDA's "transmission of two-way interactive communications to the public for hire." GPSC has jurisdiction over cable broadband to the extent the relevant Georgia telecommunications statutes apply.

The opinion repeatedly notes that the technology is evolving and the analysis may need to be revisited.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, the U.S. Supreme Court reversed the Ninth Circuit's Brand X in 2005 (National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005)), holding that cable-modem broadband is an "information service," not a "telecommunications service," under federal law. The FCC has since classified, reclassified, and reclassified again. Georgia's regulatory framework has also been amended. Anyone determining the GPSC's current jurisdiction over wireless, VoIP, or broadband services should consult the current state and federal statutes and the current FCC orders.

Common questions

Q: Why does GPSC jurisdiction matter for a service?
A: A service classified as a "telecommunications service" by a "telecommunications company" comes under various GPSC obligations: certification (§ 46-5-163(a)), Universal Access Fund contributions (§ 46-5-167(b)), GPSC access to books and records (§ 46-5-168(e)), abusive-telemarketing prohibitions (§ 46-5-187), and penalty provisions (§ 46-5-189). Avoiding the classification means avoiding those state obligations.

Q: What's the practical line between computer-to-computer VoIP and phone-to-phone VoIP?
A: Computer-to-computer VoIP requires both parties to use software and a computer (think early Skype-to-Skype calls). The IP-telephony provider is invisible to internet service providers carrying the packets. Phone-to-phone VoIP uses ordinary telephones; the provider routes calls between conventional phones, possibly via an IP backbone in the middle. The provider holds itself out as offering voice telephony, requires no special customer equipment, allows calls to standard phone numbers, and transmits without changing form or content. The FCC set out four conditions defining the category in its Universal Service Order.

Q: Does this mean a Georgia cable broadband provider had to register with the GPSC in 2004?
A: Per this opinion, yes, to the extent the certification and Universal Access Fund statutes apply to "telecommunications companies" without a cable-specific exemption. Federal regulatory developments (the FCC's later classification decisions) have likely changed that picture, but the 2004 opinion's plain-text reading was: cable-modem broadband providers were within the GPSC's authority for the relevant statutes.

Q: What about cellular providers' fees?
A: A specific exemption in O.C.G.A. § 46-5-163(b) exempts wireless from the certification requirement, but other obligations applicable to "telecommunications companies" without wireless-specific exemptions still apply. Each statute has to be read individually.

Q: Does this opinion override 1994 Op. Att'y Gen. 94-7?
A: Effectively yes, because the legal landscape changed with the TCDA and TMA. The 1994 opinion concluded the GPSC had no statutory hook for cellular under the then-existing rules. The 1995 and 1998 Acts created the necessary hook. The 2004 opinion explicitly references the change in law.

Background and statutory framework

The Telecommunications and Competition Development Act of 1995 (TCDA) and the Telecommunications Marketing Act of 1998 (TMA) introduced a broader regulatory vocabulary into Georgia law. "Telecommunications services" (O.C.G.A. § 46-5-162(18)) are "services for the transmission of two-way interactive communications to the public for hire." "Telecommunications companies" are entities offering those services (O.C.G.A. § 46-5-162(17)).

The federal Telecommunications Act of 1996 used a similar (but not identical) definition: "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's AT&T Corp. v. City of Portland and Brand X applied that definition to cable-modem broadband service, treating two-way packet-data transmission as telecommunications.

The opinion's analytic strategy was to import the FCC's and federal courts' treatment of these services into the Georgia statutory definitions, on the assumption that the General Assembly's "two-way interactive communications" formulation was intended to track federal terminology. This is a defensible reading, but the federal rules have since shifted substantially.

Citations and references

Statutes:
- TCDA (Telecommunications and Competition Development Act of 1995, codified within Title 46)
- TMA (Telecommunications Marketing Act of 1998, codified within Title 46)
- O.C.G.A. § 46-5-3(a) (definition of "telecommunication service" / "telecommunication service provider")
- O.C.G.A. § 46-5-122(12) (definition of "wireless service" in 911 Service Act)
- O.C.G.A. § 46-5-162(17) (definition of "telecommunications company")
- O.C.G.A. § 46-5-162(18) (definition of "telecommunications services")
- O.C.G.A. § 46-5-163(a) and (b) (certificate of authority requirement; wireless exemption)
- O.C.G.A. § 46-5-167(b) (Universal Access Fund contributions)
- O.C.G.A. § 46-5-168(e) (GPSC access to books and records)
- O.C.G.A. § 46-5-171.1(a) (third-party billing certification requirement)
- O.C.G.A. § 46-5-181 (TMA definitions)
- O.C.G.A. § 46-5-183 (TMA carrier-change procedures)
- O.C.G.A. § 46-5-187 (abusive telemarketing prohibition)
- O.C.G.A. § 46-5-189 (TMA penalties)
- 47 U.S.C. § 153 (definitions); § 153(27)(A) (mobile service); § 153(43) (telecommunications)
- 47 U.S.C. § 332(D) (commercial mobile service)
- 47 U.S.C. § 541(b)(1) (cable service definition)

Cases:
- Georgia Power Co. v. Georgia Public Service Commission, 211 Ga. 223 (1954) (GPSC has only powers expressly or impliedly granted)
- Brand X Internet Services v. FCC, 345 F.3d 1120 (9th Cir. 2003) (cable broadband as telecommunications service; later reversed by U.S. Supreme Court in 2005)
- AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000) (cable broadband is two-way communication, not "cable service")

Other:
- In the Matter of Federal-State Joint Board on Universal Service, 13 F.C.C.R. 11501 (April 10, 1998) ("Universal Service Order")
- Inquiry Concerning High-Speed Access to the Internet over Cable and Other Facilities, 17 F.C.C.R. 4798 (2002)
- 1994 Op. Att'y Gen. 94-7 (cellular not "telephone service"; superseded by statutory changes)

Source

• Landing page: https://law.georgia.gov/opinions/2004-5
• Original PDF: not linked from landing page

Original opinion text

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).