In fact, it's very very hard. Which is why this case of DQE Communications Network Services at the FCC (PDF) against North Pittsburgh Telephone Company (NPTC) is so interesting. The FCC found in DQE's favor when NPTC, a local exchange carrier, denied pole access. NPTC said in response to a 2005 request for pole access that DQE wasn't a "telecommunications carrier"--despite DQE's specific authorization in Pennsylvania as such--and thus DQE wouldn't get the protection of the 1996 law that requires nondiscriminatory pole access.

The FCC found, in short, that a telecommunications carrier can engage in services not covered by that definition without losing its rights. And because the Penn. Public Utility Commission granted specific authorization, that's prima facie enough for the FCC that DQE is a telecom carrier. Interestingly, the FCC makes the case in its order that because DQE is governed by tariffs that it agreed to with the Penn. PUC, that even its pure data offerings constitute the kind of telecom service that's protected by regulation--they offer their data services "indifferently and 'indiscriminately' for a fee," which meets the FCC's interpretation of that definition.

What this means, deciphered a bit, is that if you're willing to put yourself under tariffs and rules and offer the right kind of base service--be regulated as a telecommunications carrier--you also get the benefits of regulation that work in your favor. The downside is having less control over the rates you charge; information services can price however they want, and incumbents have fought hard to move their services from the telecom pile to the information pile for that reason.

I don't think companies will rush out to their PUC, however: DQE contacted NPTC in July 2005, and filed its complaint with the FCC in Sept. 2005. This order took 16 months from then to appear.

Read more at: http://wifinetnews.com/archives/007405.html.