WPC( 2 BJZCourier3|j x6X@`7X@HP LaserJet 5Si in 528HPLAS5SI.PRSx  @\$/SX@ X4#X\  P6G;ɒP#X01Í ÍX01Í Í#Xj\  P6G;ynXP#2B<KTXKCourierTimes New Roman"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+999999S9S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN\4  pG;@|ND,_|\  P6G;P @ND,4  pG;2() X4w  #XP PynXP#Federal Communications Commission`(#ZFCC 98292 ă   yxdddy )  Њ  X'`+ Before the Đ X'w  Federal Communications Commission Đ X4\+ Washington, D.C. 20554 ă  Xv4In the Matter of hhCq)  X_4` `  hhCq) pp  XH4GTE Telephone Operating Cos.hhCq)ppCC Docket No. 9879  X14GTOC Tariff No. 1  hhCq)pp  X 4GTOC Transmittal No. 1148hhCq)  X '  MEMORANDUM OPINION AND ORDER   Adopted: October 30, 1998; Released: October 30, 1998 \ By the Commission: (Commissioners FurchtgottRoth and Tristani dissenting in part and issuing a joint statement)  X4':M I. INTRODUCTION Đ\X` hp x (#%'0*,.8135@8:Ǣ {O* 'ԍ Id. at 1629.< The Commission affirmed, noting that "both court and Commission decisions have considered the endtoend nature of the communications more significant than the facilities used to complete such communications. According to these precedents, we regulate an interstate wire communication under the Communications Act from its inception to its  X14completion."?&1~Ǣ {O`'ԍ Id. (citing NARUC v. FCC, 746 F.2d 1492, 1498 (D.C. Cir. 1984) (concluding that a physically intrastate inWATS line, used to terminate an endtoend interstate communication, is an interstate facility subject to  {O'Commission regulation)). See also United States v. AT&T, 57 F. Supp. 451, 454 (S.D.N.Y. 1944); New York  {O'Telephone Company, 76 FCC 2d 349, 352 (1980).  The Commission concluded that "an interstate communication does not end at an intermediate switch. . . . The interstate communication itself extends from the inception of  X 4a call to its completion, regardless of any intermediate facilities."3@ l Ǣ {O 'ԍ Id.3 In addition, in  X 4Southwestern Bell Telephone Company,gA Ǣ {O'ԍ Southwestern Bell Telephone Company, 3 FCC Rcd at 2339.g the Commission rejected the argument that "a credit card call should be treated for jurisdictional purposes as two calls: one from the card user to the interexchange carrier's switch, and another from the switch to the called party" and concluded that "switching at the credit card switch is an intermediate step in a single endto X4end communication."<B Ǣ {O'ԍ Id. at 2341.<  Xd419. Consistent with these precedents, we conclude that the communications at issue here do not terminate at the ISP's local server, as some competitive LECs and ISPs contend, but continue to the ultimate destination or destinations, very often at a distant Internet website  X4accessed by the end user.C"Ǣ {O"'ԍ  See, e.g., Ameritech Comments at 9; Bell Atlantic Comments at 5; see also  21, 26, infra. The fact that the facilities and apparatus used for GTE's ADSL service offering may be located within a single state does not affect our jurisdiction. As the  X4Commission stated in BellSouth Memory Call, "this Commission has jurisdiction over, and" C0*%%ZZ" regulates charges for, the local network when it is used in conjunction with the origination  X4and termination of interstate calls."DǢ {Ob'ԍ BellSouth Memory Call, 7 FCC Rcd at 1621 (citing MTS/WATS Market Structure). Indeed, in the vast majority of cases, the facilities that  X4incumbent LECs use to provide interstate access are located entirely within one state.UEZZǢ {O'ԍ NARUC v. FCC, 746 F.2d 1492, 1499 (D.C. Cir. 1984) ("The dividing line between the regulatory jurisdictions of the FCC and states depends on the 'nature of the communications which pass through the facilities [and not on] the physical location of the lines.'" (citations omitted)).U  X420. We disagree with those commenters who argue that, for jurisdictional purposes, an endtoend ADSL communication must be separated into two components: an intrastate telecommunications service, provided in this instance by GTE, and an interstate information  X_4service, provided by the ISP.F_|Ǣ {O 'ԍ See, e.g., Focal Comments at 45; ICG Opposition at 6; Splitrock Opposition at 3. As discussed above, the Commission analyzes the totality of  XH4the communication when determining the jurisdictional nature of a communication.GHǢ {O'ԍ  See United States v. AT&T, 57 F. Supp. 451, 45355 (S.D.N.Y. 1944), aff'd, 325 U.S. 837 (1945). The Commission previously has distinguished between the "telecommunications services component" and the "information services component" of endtoend Internet access for  X 4purposes of determining which entities are required to contribute to universal service.bH Ǣ {OT'ԍ Universal Service Order, 12 FCC Rcd at 9180, 9181.b Although the Commission concluded that ISPs do not appear to offer "telecommunications service," and thus are not "telecommunications carriers" that must contribute to the Universal  X 4Service Fund,I 2 Ǣ {O'ԍ Id. at 9180. We confirmed this view in the Universal Service Report to Congress. Universal Service  {Ok'Report to Congress, 13 FCC Rcd at 11522. it has never found that "telecommunications" ends where "enhanced" information service begins. To the contrary, in the context of open network architecture (ONA) elements, the Commission stated that "an otherwise interstate basic service . . . does not lose its character as such simply because it is being used as a component in the provision  Xb4of a[n enhanced] service that is not subject to Title II."Jb Ǣ {O'ԍ  See Filing and Review of Open Network Architecture Plans, 4 FCC Rcd 1, 141 (1988) ("when an enhanced service is interstate (that is, when it involves communications or transmissions between points in  {O3 'different states on an endtoend basis), the underlying basic services are subject to Title II regulation.") See,  {O 'e.g., Amendment of Section 64.702 of the Commission's Rules and Regulations, 2 FCC Rcd 3072, 3080 (1987)  yO!' ("carriers must provide efficient nondiscriminatory access to the basic service facilities necessary to support their  {O"'competitors's enhanced services. . ." ) See also BellSouth MemoryCall, 7 FCC Rcd at 1621 (rejecting "two call" argument as applied to interstate call to voicemail apparatus, even though voicemail is an enhanced service). Under the definition of information service added by the 1996 Act, an information service, while not a telecommunications"K J0*%%ZZ"  X4service itself, is provided via telecommunications.K$Ǣ {Oy'ԍ SeeĠ47 U.S.C.  153(20) ("Information service" means "the offering of a capability for generating,  yOC'acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via  {O 'telecommunications . . .") (emphasis added); see also 47 C.F.R.  64.702(a) (enhanced services are provided "over common carrier transmission facilities used in interstate communications.")  As explained in the Universal Service  X4Report to Congress, because information services are offered via telecommunications, they  X4necessarily require a transmission component in order for users to access information.jLǢ {O;'ԍ Universal Service Report to Congress, 13 FCC Rcd at 11529.j We, therefore, analyze ISP traffic as a continuous transmission from the end user to a distant  X4Internet site.  Xz421. Nor are we are persuaded by competitive LEC arguments that, because the Commission has treated ISPs as end users for purposes of the ESP exemption, an Internet call  XL4must terminate at the ISP's point of presence.pMLFǢ {OC'ԍ See, e.g., CompTel Opposition at 3; PacWest Direct Case at 610.p As discussed above, GTE's ADSL service  X54offering is designed to be used by ISPs as part of their endtoend Internet access service.?N5Ǣ yO'ԍ GTE Direct Case at 4.? The Commission traditionally has characterized the link from an end user to an ESP as an  X 4interstate access service.O h Ǣ {O 'ԍ  See, e.g., MTS/WATS Market Structure Order, 97 FCC 2d at 711; Amendments of Part 69 of the Commission's Rules Relating to Enhanced Service Providers, CC Docket No. 87215, 2 FCC Rcd 4305 (1987). In the MTS/WATS Market Structure Order, for instance, the Commission concluded that ESPs are "among a variety of users of access service" in that they "obtain local exchange services or facilities which are used, in part or in whole, for the purpose of completing interstate calls which transit its location and, commonly, another  X 4location in the exchange area."P Ǣ {O 'ԍ  Id.; see also Amendments of Part 69 of the Commission's Rules Relating to Enhanced Service Providers, Notice of Proposed Rulemaking, 2 FCC Rcd at 4305 (1987) ("We . . . intended to impose interstate access charges on enhanced service providers for their use of local exchange facilities to originate and terminate their  {Oz'interstate offerings."); ESP Exemption Order, 3 FCC Rcd at 2635 n.8, 2637 n.53 (1988) ("we granted temporary exemptions from payment of access charges to certain classes of exchange access users, including enhanced service providers.") The fact that ESPs are exempt from certain access charges and purchase their PSTN links through local tariffs does not transform the nature of traffic  X4routed to ESPs. That the Commission exempted ESPs from access charges indicates its understanding that they in fact use interstate access service; otherwise, the exemption would"h >P0*%%ZZ3"  X4not be necessary.QZǢ {Oy'ԍ  See, e.g., id. See also Access Charge Reform, Notice of Proposed Rulemaking, Notice of Inquiry, 11 FCC Rcd 21354, 21478 (1996) ("although ESPs may use incumbent LEC facilities to originate and terminate  yO 'interstate calls, ESPs should not be required to pay interstate access charges.") (emphasis added). We emphasize that the Commission's decision to treat ISPs as end users for access charge purposes does not affect the Commission's ability to exercise jurisdiction over such traffic.  X422. Having concluded that the jurisdictional treatment of GTE's ADSL service offering is determined by the nature of the endtoend transmission between an end user and the Internet website accessed by the end user, we now must decide whether that transmission does in fact constitute an interstate telecommunication. Generally, a call that originates and terminates in a single state is jurisdictionally intrastate, and a call that originates in one state  X14and terminates in a different state (or country) is jurisdictionally interstate.\R1Ǣ {O 'ԍ Universal Service Order, 12 FCC Rcd at 9173.\ An Internet communication does not necessarily have a point of "termination" in the traditional sense. In a single Internet communication, an Internet user may, for example, access websites that reside on servers in various state or foreign countries, communicate directly with another Internet user, or chat online with a group of Internet users located in the same local exchange  X 4or in another country,S |Ǣ {O'ԍ See, e.g., Kevin Werbach, Digital Tornado: The Internet and Telecommunications Policy, OPP Working Paper No. 29, at 45 (Mar. 1997). and may do so either sequentially or simultaneously. Accordingly, we recognize that some of the ISP traffic carried by GTE's ADSL service may be destined for intrastate or even local Internet websites or databases.  Xb423. GTE argues that its ADSL service is properly tariffed at the federal level on the ground that it similar to existing special access services that are subject to federal regulation  X44under the mixeduse facilities rule because more than ten percent of the traffic is interstate.OT4Ǣ {O'ԍ See, e.g., GTE Rebuttal at 15. O The mixeduse facilities rule was introduced in a 1989 proceeding involving the re X4examination of the separations treatment of "mixeduse" special access lines.Uh Ǣ yO'ԍ MTS and WATS Market Structure, Amendment of Part 36 of the Commission's Rules and Establishment  {O'of a Joint Board, 4 FCC Rcd 5660 (1989) (MTS/WATS Market Structure Separations Order). Specifically, in  X4the MTS/WATS Market Structure Order, the Commission adopted the Joint Board's  X4recommendation that "mixeduse" special access lines (i.e., lines carrying both intrastate and interstate traffic) are subject to the Commission's jurisdiction where it is not possible to" U0*%%ZZ"  X4separate the uses of the special access lines by jurisdiction.3VǢ {Oy'ԍ Id.3 The Commission found that  X4special access lines carrying more than de minimis amounts of interstate traffic to private line  X4systems should be assigned to the interstate jurisdiction.W"ZǢ {O'ԍ Id. at 5660, 5661. A private line service is a service for communications between specified locations for a continuous period or for regularly recurring periods at stated hours. 47 C.F.R. Pt 36, App. For example, high volume voice telephony customers purchase private line services as a means of obtaining direct access to interexchange carrier (IXC) networks. Interstate traffic is deemed de  X4minimis when it amounts to ten percent or less of the total traffic on a special access line.<XDǢ {O 'ԍ Id. at 5660.<  X424. GTE contends that its ADSL service is similar to special access lines currently subject to federal regulation under the mixeduse facilities rule, and, thus, its ADSL service  Xe4should be similarly regulated at the federal level.@YeǢ yO'ԍ GTE Direct Case at 19.@ Section 69.2 of the Commission's rules defines "access service" as including "services and facilities provided for the origination or  X74termination of any interstate or foreign telecommunication."AZ7f Ǣ yON'ԍ 47 U.S.C.  69.2(b).A There are two categories of access service: switched and special. Switched access services share the local switch to route originating and terminating interstate toll calls. Special access services, by contrast, generally provide a dedicated path between an end user and an IXC's point of presence. The special access category includes a wide variety of facilities and services, such as wideband data,  X 4video, and program audio services.[ Ǣ {Ok'ԍ  See Investigation of Access and Divestiture Related Tariffs, CC Docket No. 831145, Phase I and Phase II, Part I, FCC 8570, 57 Rad. Reg. 2d 1459, 1465 (Com. Car. Bur. 1985).   X425. We agree that GTE's ADSL service is a special access service, thus warranting federal regulation under the "ten percent" rule. Like the pointtopoint private line service high volume telephony customers purchase for direct access to IXCs' networks, GTE's ADSL service provides end users with a direct access to their selected ISPs, over a connection that is  X:4dedicated to ISP access.R\:P Ǣ yO;!'ԍ GTOC Description and Justification at 1.R This dedicated access enables end users to avoid the problems associated with circuitswitched, dialup access, such as long holding times and inability to connect to the Internet due to network congestion. The ADSL service also is similar to traditional private line services in that both services may carry interstate and intrastate traffic,"\0*%%ZZ" and both services provide direct access from an end user to a service provider's (ISP or IXC) point of presence.  X426. We are not persuaded by ALTS's argument that ADSL service does not fall within the definition of special access because it does not constitute "interstate  X4telecommunications."]Ǣ {O'ԍ See ALTS Opposition at 4, 1819; see also ICG Opposition at 67; Hyperion Opposition at 3; and ITC/KMC Opposition at 3. As stated above, we disagree with ALTS's suggestion that the  Xv4"telecommunications" service ends where the "information service" begins.I^v"Ǣ {OI 'ԍ See  20, supra.I Furthermore, as  X_4discussed above, we conclude that more than a de minimis amount of Internet traffic is destined for websites in other states or other countries, even though it may not be possible to ascertain the destination of any particular transmission. For these reasons, we conclude that GTE's ADSL service is subject to federal jurisdiction under the Commission's mixeduse  X 4facilities rule.  X 427. We emphasize that we believe federal tariffing of ADSL service is appropriate  X 4where the service will carry more than a de minimis amount of inseparable interstate traffic._ Ǣ {O%'ԍ See, e.g., GTE Rebuttal at 15 (GTE will ask every ADSL customer to certify that ten percent or more of its traffic is interstate). Should GTE or any other incumbent LEC offer an xDSL service that is intrastate in nature, for example, a "workathome" application where a subscriber could connect to a corporate  X}4local area network, that service should be tariffed at the state level.`}Ǣ {O<'ԍ See GTE Rebuttal at 1516 (if ADSL "traffic warrants state tariffing, GTE will do so").  XO428. Several parties further argue that because it is difficult, if not impossible, to separate intrastate and interstate Internet traffic, federal regulation of this traffic is appropriate  X!4pursuant to the inseverability doctrine.a!Ǣ {Or'ԍ GTE Direct Case at 18; Time Warner Comments at 2; USTA Comments at 67; Covad Comments at 37; and Bell Atlantic Comments at 34. Under the inseverability doctrine, preemption of state regulation is permissible "where it is not possible to separate the interstate and the  X4intrastate components of the asserted FCC regulation."~b^ Ǣ {O!'ԍ Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 375 n.4 (1986); see also North Carolina Utils.  {Oh"'Comm'n v. FCC, 537 F.2d 787 (4th Cir.), cert. denied, 429 U.S. 1027 (1976); North Carolina Utils. Comm'n v.  {O2#'FCC, 552 F.2d 1036 (4th Cir.), cert. denied, 434 U.S. 874 (1977).~ The Commission bears the burden of demonstrating that state regulation "negates the exercise by the FCC of its own lawful" b0*%%ZZa"  X4authority over interstate communications."(cǢ {Oy'ԍ NARUC v. FCC, 880 F.2d 422, 429 (D.C. Cir. 1989) (citing North Carolina Utils. Comm'n v. FCC, 552 F.2d 1036, 1043 (4th Cir.) (where Commission acted within its authority to permit subscribers to provide their own telephones, pre-emption of inconsistent state regulation prohibiting subscribers from connecting their own phones unless used exclusively in interstate service upheld since state regulation would negate the federal tariff),  {O'cert. denied, 434 U.S. 874 (1977)).( In light of our finding that GTE's ADSL service is subject to federal jurisdiction under the Commission's mixed use facilities rule and properly tariffed as an interstate service, we need not reach the question of whether the inseverability doctrine applies.  X429. Many commenters urge the Commission to clarify that any conclusion on the jurisdictional nature of GTE's ADSL service has no bearing on the jurisdictional nature of  X_4circuitswitched traffic, particularly dialup calls to the local ISP platform.dZ_|Ǣ {O 'ԍ See, e.g., ICG Opposition at 11; ALTS Opposition at 22; Intermedia/e.spire Opposition at 5; Splitrock Opposition at 3; Time Warner Comments at 2, 9; ITC/KMC Opposition at 8; Ohio Commission Comments at 7; and AT&T Opposition at 8. These parties contend that characterizing GTE's ADSL service as interstate would allow incumbent LECs to avoid their obligations to pay reciprocal compensation to competitive LECs for the transport  X 4and termination of circuit switched, dialup calls from end users to ISPs.e Ǣ {Oi'ԍ See, e.g., ICG Opposition at 11; ALTS Opposition at 22; Intermedia/e.spire Opposition at 5; Splitrock Opposition at 3; Time Warner Comments at 2, 9; ITC/KMC Opposition at 8; and AT&T Opposition at 8. As stated above, our decision in this proceeding relates only to the jurisdictional treatment of the high speed access connection between an end user subscriber and an ISP, as described in GTE's tariff. We make no determination in this Order concerning whether incumbent LECs should be required to pay reciprocal compensation when they exchange Internet traffic with competitive  X 4LECs.Hf Ǣ {OP'ԍ See  2, supra.H  Xy430. Finally, we reject the argument advanced by some commenters that the Commission should defer the tariffing of DSL services to the states in order to lessen the  XK4possibility of a price squeeze.kgK Ǣ {O'ԍ See, e.g., Northpoint Response at 5; ALTS Opposition at 14.k These commenters argue that federal tariffing of DSL services will subject competitors to a price squeeze, because the federally tariffed DSL rate may be lower in some states than the sum of the prices of unbundled network element inputs, such as loops and collocation, that competitive LECs must purchase to offer competing  X4services.ChǢ yO$'ԍ Northpoint Response at 3.C They suggest that the Commission should either: (1) require GTE to impute to its"h0*%%ZZ]" ADSL service charges for loops, collocation, and transport elements that it imposes on its competitors; or (2) defer tariffing of DSL services to the states, which have jurisdiction over  X4the pricing of network elements.;iǢ {OK'ԍ Id. at 45.;  X431. We do not agree that the possibility of a price squeeze warrants transfer of our ratemaking authority over DSL services to the states. First, it is not clear that fear of a price squeeze is wellfounded. Northpoint's argument is premised on its assertion that GTE's rate for its ADSL service "is less than the price it charges competitive LECS for the loops,  XH4collocation and transport necessary to provide DSL service,"9jHZǢ {OS 'ԍ Id. at 4.9 but this is not an apt comparison. When a requesting carrier purchases these unbundled network elements, the facilities in question are capable of supporting a variety of services in addition to ADSL, such as local exchange service and access services. Competitors need not recover their costs from ADSL service alone; they have the same opportunity as GTE to recover the costs of network  X 4elements from all of the services they offer using those facilities.Wk Ǣ {Or'ԍ See e.g., Bell Atlantic Comments at 11.W Thus, a carrier choosing to offer only data service over a facility that is capable of carrying more, such as GTE's ADSL offering, may not reap the entire revenue stream that the facility has to offer. Moreover, taken to its logical conclusion, Northpoint's reasoning would suggest that all interstate access services be regulated by the states, because those services can be provided by  Xb4competitors through the use of unbundled network elements priced by the states.]lb~Ǣ yO'ԍ GTE Direct Case at 2526; Ameritech Comments at 26.] Such an  XK4outcome is neither necessary nor contemplated by the Act.m"KǢ {O 'ԍ See, e.g., Competitive Telecomms. Ass'n v. FCC, 117 F.3d 1068 (8th Cir. 1997) (upholding Commission decision to allow incumbent LECs for interim period to collect access charges from interconnecting carriers for all interstate minutes traversing the incumbent LECs' local switches, for which the carriers pay unbundled local switching charges).  X4 32. This Commission is wellversed in addressing the price squeeze concerns of new entrants and has in the past successfully forestalled attempts by incumbent LECs to shift costs  X4to monopoly services in order to justify rates that effect a price squeeze.n$ Ǣ {O!'ԍ See, e.g., INFONXX, Inc. v. New York Telephone Company, Memorandum Opinion and Order, 13 FCC Rcd 3589 (1997); In the Matter of Amendment of the Commission's Rules to Establish Competitive Service Safeguards for Local Exchange Carrier Provision of Commercial Mobile Radio Services, Report and Order, 12  {O#'FCC Rcd 15668 (1997); see also ACI/Firstworld Comments at 9. We have ample authority under the Act to conduct an investigation to determine whether rates for DSL"n0*%%ZZT"  X4services are just and reasonable.QoǢ {Oy'ԍ E.g., 47 U.S.C.  204205.Q Moreover, although states have jurisdiction to determine the prices of unbundled network elements, those prices are a matter of public record that the Commission may examine in the context of determining the reasonableness of DSL rates or in the event of a complaint alleging a price squeeze. We conclude, therefore, that federal tariffing of interstate DSL services, such as the one at issue here, is appropriate, and we will address any price squeeze concerns as they arise.  X_'! IV. ORDERING CLAUSES   X14\ 33. Accordingly, IT IS ORDERED, pursuant to Section 204(b) of the Communications Act of 1934, 47 U.S.C.  204(b), that GTOC Transmittal No. 1148, proposing to offer GTE DSL SolutionsADSL Service, is an interstate access service subject to this Commission's jurisdiction.  X 4!34. IT IS FURTHER ORDERED, that the investigation and accounting order imposed by the Common Carrier Bureau in CC Docket No. 9879 with respect to GTE for the designated issues as discussed herein IS TERMINATED.  ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` ` ` `  hhCqMagalie Roman Salas  X4` `  hhCqSecretarypp "Zo0*%%ZZi"  X'U APPENDIX A Đ\ h<Comments \ ACI Corp. America Online Ameritech Association for Local Telecommunications Services (ALTS) AT&T Corp. Bell Atlantic BellSouth Corporation Commercial Internet eXchange Association Competitive Telecommunications Association (CompTel) Covad Communications Company (Covad) e.spire Communications, Inc. Firstworld Communications, Inc. Florida Digital Network, Inc. Focal Communications Corporation Hyperion Telecommunications, Inc. GTE Service Corporation GST Telecom Inc. ICG Telecom Group Intermedia Communications, Inc. Internet Service Providers' Consortium (ISPC) ITC^Delta Communications, Inc. (ITC) KMC Telecom, Inc. MediaOne Group, Inc. MCI/Worldcom, Inc. (MCI) National Association of Regulatory Utility Commissioners (NARUC) New York Department of Public Service Commission Northpoint Communications, Inc. (Northpoint) Pacific Bell Telephone Company (PacBell) PacWest Telecomm, Inc. Pennsylvania Public Utility Commission Public Utility Commission of Texas Public Utility Commission of Oregon RCN Telecomm Services, Inc. Southwestern Bell Telephone Company, Nevada Bell Telephone Company (SBC) Splitrock Services, Inc. Sprint Corporation Time Warner Communications"h$o0*%%ZZ""ԌUnited States Telephone Association (USTA) U S West, Inc. Washington Utilities and Transportation Commission Virginia State Corporation Commission "o0*%%ZZt"     o` `  hhCqppOctober 30, 1998  a4%^#|\  P6G; _P# Separate Statement of }Commissioners Harold FurchtgottRoth and Gloria Tristani,  a4:XDissenting in Part # Xj\  P6G;ynXP#ѐ\  We support today's decision finding that GTE's DSL tariff includes an interstate service offering properly filed at the federal level. We write separately, however, to express our unwillingness to address the broader issues related to the jurisdictional nature of ISP traffic in this proceeding. That broader issue seems to be of enormous importance to many businesses, industries and consumers today, and doubtlessly many more tomorrow. The Commission faces no statutory deadline on the broader issue of the jurisdictional nature of ISP traffic, and thus we would prefer caution. The Commission does face a statutory deadline on the GTE tariff, but we could have allowed that tariff to go into effect as a lawful provision of a private service without addressing these broader questions. Such a result would not have reached the broader issue of whether ISP traffic over this DSL service is inherently interstate. Neither would such a decision have required the Commission to determine that "the communications at issue here do not terminate at the ISP's local server, as some CLECs and ISPs contend, but continue to the ultimate destination or destinations, very often at a distant Internet website accessed by the  XR4end user."ZR  yO'ԍMemorandum Opinion and Order at para. 19.Z Nor would we need to conclude that "[t]he fact that the facilities and apparatus used for GTE's DSL service offering may be located within a single state does not affect our  X$4jurisdiction.":$X  {O-'ԍId.: Such sweeping statements about this agency's jurisdiction and even more importantly the logical application of that framework could have broad and even unintended implications for many state commission decisions. Despite the majority's attempt to insulate State commission decisions, we are concerned that the logical application of that framework could have broader implications, and that is why we would urge greater caution and a narrower decision. Of course, we urge all parties to exercise caution pending the Commission's decision next week. The majority's decision to address the jurisdictional nature of ISP traffic has the unfortunate consequence of necessitating a discussion of the relationship between today's decision and existing state commission decisions concerning reciprocal compensation. That analysis by the Commission could have major ramifications for incumbent LECs, CLECs, state commissions, and consumers. At this point, we are uncertain of how to characterize the impact, if any, of today's Order on state commission decisions. In our judgment, such a discussion should have been deferred until next week when we will address reciprocal compensation issues more comprehensively. "$0*0*0*1#"Ԍ We think that it is important to reach a well-reasoned solution, and one that can withstand the inevitable weight of both close judicial scrutiny and market reaction. If we proceed rapidly with a solution that has not been fully vetted, we will create even greater uncertainty in the market, raising the specter of possible defeat in court, and exacerbating an already difficult market condition. Such a result will have benefitted no one but the litigation profession. As a narrower resolution of the tariff before us is possible, we would have preferred to meet that deadline in a manner that does not precommit this agency to a scheme whose logic could dictate a resolution of some of the reciprocal compensation issues that we are not prepared to endorse. V* * * *