View this Youtube Video of Scott McCollough’s Dec 7, 2021 Oral Arguments in CHD v FCC re: FCC Order 19-126: the OTARD rule revision — https://youtu.be/ZfSwOxuz8JY?t=1836
Read the following 7-part Email Communications from Dec 15, 2021:
1st
From: Paul G
Date: December 15, 2021 at 1:05 PM
To: W. Scott M
Subject: Question that needs a more thorough answer
Hi, Scott.
Great job on Dec 7 and in today’s Zoom call.
My question in the Zoom call today was not fully addressed.
pmg: The OTARD rule says
“excludes any hub or relay antenna that is used to provide any telecommunications services or services that are provided on a commingled basis with telecommunications services.”
. . . isn’t Wi-Fi calling such a commingled service?
pmg: (ignored by Dafna)
I understand the carve out for cellular service from this rule. My point is that Wi-Fi calling creates a problem for this rule. It creates a commingled service. What is a Wi-Fi call then?
Will you please provide a statute, rule or case citation that shows the classification of Wi-Fi calling?
I think that since Wi-Fi calling can be accomplished on any OTARD-provided internet connection, then the ability to make such a Wi-Fi call instantly commingles telecommunications service over the OTARD-provided connections which means the rule no longer applies.
Will you please explain whether or not this argument works?
Thank you.
2nd
From: W. Scott M
Date: December 15, 2021 at 1:33 PM To: Paul G
CC: Dafna T
Subject: Question that needs a more thorough answer — Reply
Wi-Fi calling is a feature or function, and it is driven by intercommunication between the edge device and the voice provider network, which may or may not be personal wireless service. All this occurs in the higher layers of the protocol stack (over the top), and may be entirely independent of what the OTARD-using physical layer provider is giving (e.g., basic Internet). The focus is on what the physical layer provider supplies, not what one of the users does with the Internet connectivity.
What you say would be relevant only if the voice service is being directly provided by the OTARD-using physical layer provider and that will most often not be the case. If the physical layer provider is offering basic common carrier cell phone service then that is not OTARD so we don’t even get into the commingled question. If the physical layer provider is offering only private mobile or private fixed service and doing so using Wi-Fi calling then it is OTARD-protected.
Now, this is all separate from the ultimate question you ask: what is the regulatory classification for Wi-Fi calling? FCC has never answered, but they have functionally treated it common-carrier supported Wi-Fi calling as a part of personal wireless service (or per FCC rule terminology CMRS). They had to do that to ensure 911 works.
Many people do not understand the important differences between private carrier and common carrier and the regulatory treatment of each. Really different. And “private 5G” is being touted as a really big thing.
OTARD can be used to support private 5G because it is not common carrier and thus not covered by 332(c)(7).
3rd
From: Paul G
Date: December 15, 2021 at 2:05 PM
To: W. Scott M
Subject: Question that needs a more thorough answer, Round 2
Hi, Scott.
Thanks for your quick reply, but this is not yet crystal clear to me.
>>> W. Scott M wrote on 12/15/21 1:33 PM:
wsm: Wi-Fi calling is a feature or function, and it is driven by intercommunication between the edge device and the voice provider network, which may or may not be personal wireless service.
pmg: Whether or not Wi-Fi calling is classified as “personal wireless service”, a Wi-Fi call is a phone call. And it occurs, at least for part of the journey from one’s mouth to another’s ear, wirelessly. Therefore, it is safe to consider a Wi-Fi call “wireless telecommunications”, right? It fits the definition of telecommunications:
Title 47 U.S. Code §153 Definitions
(50) Telecommunications — The term “telecommunications” means 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.
(53) Telecommunications service — The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
(24) Information service — The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
wsm: All this occurs in the higher layers of the protocol stack (over the top), and may be entirely independent of what the OTARD-using physical layer provider is giving (e.g., basic Internet). The focus is on what the physical layer provider supplies, not what one of the users does with the Internet connectivity.
pmg: I see nothing in the rules that mentions anything about the “physical layer” or what goes on top of what. I read the plain language of the OTARD rule:
The rule says:
“excludes any hub or relay antenna that is used to provide any telecommunications services or services that are provided on a commingled basis with telecommunications services.”
My wireless cell phone provider (Mint Mobile, in my case) charges me a monthly fee and offers me the ability to make a Wi-Fi call — presumably for areas where I do not receive a sufficient signal from a Wireless Telecommunications Facility (WTF), but I do receive a sufficent Wi-Fi signal in someone’s home. I choose that option and proceed to make a call over the internet connection provided by (let’s say) Comcast.
- Is the Wi-Fi call telecommunications? Yes.
- Is the Wi-Fi call wireless? Yes.
- Is the telecommunications commingled with the Comcast-provided internet connection? Yes.
- Does this make a problem for the OTARD rule as written? Yes
Once again, the rule says
“excludes any hub or relay antenna that is used to provide any telecommunications services or services that are provided on a commingled basis with telecommunications services.”
Since wireless Starry service is just like wired Comcast service, Starry is therefore not covered by this rule, right?
wsm: What you say would be relevant only if the voice service is being directly provided by the OTARD-using physical layer provider and that will most often not be the case.
pmg: I find the statement, above, irrelevant.
wsm: If the physical layer provider is offering basic common carrier cell phone service then that is not OTARD so we don’t even get into the commingled question.
pmg: Agreed.
wsm: If the physical layer provider is offering only private mobile (no, in my example) or private fixed [wireless] service (yes, in my example) and doing so using I start Wi-Fi calling then it is OTARD-protected. telecommunications service (a phone call) commingled with information service (internet) and NOT OTARD protected.
pmg: That is my point. The rule is written with a logical flaw. What do I have wrong, if anything?
wsm: Now, this is all separate from the ultimate question you ask:
pmg: Not separate from but integral to . . .
wsm: what is the regulatory classification for Wi-Fi calling? FCC has never answered,
pmg: Cool . . . then we take advantage of the poorly-written rule, as it was written by those “bless their heart” FCC attorneys, dancing on a head of an overreaching “pin” — of their own making.
wsm: but they have functionally treated [Wi-Fi calling] as common-carrier supported Wi-Fi calling as a part of personal wireless service (or per FCC rule terminology CMRS). They had to do that to ensure 911 works.
pmg: Citation? Are you saying that the FCC treats Wi-Fi calling as personal wireless service? If so, then we can claim there is also commingled personal wireless service over Starry’s physical layer. Starry is using unlicensed wireless services, right?
Title 47 Section 332 (C) Definitions. —
For purposes of this paragraph —
(i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
wsm: Many people do not understand the important differences between private carrier and common carrier and the regulatory treatment of each. Really different.
pmg: Well, the rule also did not distinguish between private carrier and common carrier. So why is that relevant?
wsm: And “private 5G” is being touted as a really big thing.
pmg: And why is that relevant?
wsm: OTARD can be used to support private 5G because it is not common carrier and thus not covered by 332(c)(7).
pmg: I do not follow the logic of that last statement, partly because there is no legal definition of 5G, just a bunch of licensed and unlicensed frequencies that receives marketing labels that change over time. AT&T at one time used 1850 MHz for 3G, but today uses it for 5G . . . so what? A Wi-Fi call is definitely commingled telecommunications and possibly commingled personal wireless service so the OTARD rule, as written, contains at least this one fatal law.
Do you agree? If not, why not?
4th
From: W. Scott M
Date: December 15, 2021 at 2:53 PM To: Paul G
cc: Dafna T
Many think W-Fi calling can be fit into the definition of telecom, at least at first glance. But even if it does that does not mean it is a telecom service, or personal wireless service.
It better fits in the definition of information service in §153(24) because as a technical matter Wi-Fi calling uses SIP and session initiation protocol does not just do raw transmission of content “without change in the form of content of the information as sent and received” (c.f., §153(50) definition of telecommunications). SIP – along with many other Internet protocols – directly generat[es], acquir[es], stor[es], transform[s], process[es], retriev[es], utilize[es], and mak[es] available information. SIP based voice service does things much differently than does traditional circuit switched service. There is definitely a change in both form and content.
LTE and the basic 5G standards-based air interface and the network core for these technologies also change form and content. But everyone has an interest in ignoring that and assuming that voice and text is still telecommunications service, CMRS and personal wireless service. All sides. For now.
Some day I may decide to litigate that case and contend that LTE and 5G is not protected by §332(c). But today is not that day.
I don’t think this will ever be crystal clear to you since although you may grasp some of the technical issues you have not been dealing with these confounding statutory and rule definitions or the insane way they have been interpreted and applied over the last 30 years.
So ultimately you will just have to accept (or not) my position that Wi-Fi calling does not provide a useful hook to oppose OTARD based on the argument it is “commingled”.
Besides, as I just said, Wi-Fi AND LTE/5G are probably is not properly covered by §332(c) since if you look at what the technology actually does they are actually an information service. Stated another way there is no telecom service in wireless any more other than what remains of 2G and 3G (which are telecom and telecom service since there is no change in form or content and are offered on a common carrier basis).
Think about the implications of that.
5th
From: Paul G
Sent: Wednesday, December 15, 2021 3:21 PM
To: W. Scott M
Subject: The Shrinking World of Telecommunications . . .
Hi, Scott.
Please understand, I am just trying to be accurate and not mislead anyone. I have no position to push; I just don’t want to waste anyone’s time or send them down a blind alley. I support everything you are doing. I am filling a bit of a “sales job” out here — attempting to get people off the misinformation train and onto an accurate understanding train.
I am also not trying to waste your time, but I am seeking any citations that can help me to understand what defeats the simple logic below. What you gave me was the definition of SIP: Session Initiation Protocol and I found RFC 3261 Copyright (C) The Internet Society (2002) → https://datatracker.ietf.org/doc/html/rfc3261
Are you saying the FCC adopted this RFC somewhere?
wsm: Many think W-Fi calling can be fit into the definition of telecom, at least at first glance.
pmg: Let’s see . . . W-Fi calling does fit the definition of telecommunications, so are you saying it doesn’t fit the definition of telecommunications service? . . . but I am paying $15 a month to Mint Mobile (a MVNO on T-Mobile’s network) and that allows me to place phone calls either
- Using T-Mobile’s WTF antennas or
- Using someone’s Wi-Fi.
Either way, I am making a call using a Mint Mobile feature for which I pay a monthly fee so, by definition, that is “the offering of telecommunications for a fee directly to the public” or telecommunications service. The only difference is the physical connection layer I am using
- Regular phone call via T-Mobile WTF antennas and fiber optic backhaul . . . or
- Wi-Fi call using one’s home internet service (Comcast, Starry or some other service) and connecting eventually to some wired or wireless phone on the other end.
wsm: But even if it does
pmg: I think anyone can plainly see that Wi-Fi calling, in this example, fits the definitions, above, from the 1996-TCA.
wsm: that does not mean it is a telecom service,
pmg: Really? Because of the interpretation insanity playbook, referenced below?
wsm: or a personal wireless service.
pmg: OK, the term “personal wireless service” is also defined in the 1996-TCA (it looks like three things):
Title 47 Section 332 (C) Definitions. —
For purposes of this paragraph —
(i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
So, how could a Wi-Fi call placed over an unlicensed wireless service (2450 MHz Wi-Fi router) to a Starry OTARD antenna using another unlicensed wireless service (60,000 MHz), not be considered a personal wireless service? It looks to me that the definitions fit . . .
wsm: Wi-Fi calling better fits in the definition of information service in §153(24) because as a technical matter Wi-Fi calling uses session initiation protocol (SIP) and SIP does not just do raw transmission of content “without change in the form of content of the information as sent and received” (c.f., §153(50) definition of telecommunications). SIP – along with many other Internet protocols – directly generat[es], acquir[es], stor[es], transform[s], process[es], retriev[es], utilize[es], and mak[es] available information. SIP based voice service does things much differently than does traditional circuit switched service. There is definitely a change in both form and content.
pmg: So what calls do raw transmission of content “without change in the form of content of the information as sent and received”? Only landline to landline phone calls? Are you then saying that VOIP calls are also an information service by the same logic?
From our previous conversations, I understood that all phone calls (wired or wireless by any means) and even video calls (think FaceTime) are telecommunications. Everything else (internet, podcast/music/video streaming, texting and more) is information services for the reasons you state – directly generat[es], acquir[es], stor[es], transform[s], process[es], retriev[es], utilize[es], and mak[es] available information.
Who would know what are the “accepted definitions” unless it is codified somewhere.
wsm: LTE and the basic 5G standards-based air interface and the network core for these technologies also change form and content. But everyone has an interest in ignoring that and assuming that voice and text is still telecommunications service, CMRS and personal wireless service. All sides. For now.
pmg: So, I agree texting is not a telecommunications service, but which voice calls are a telecommunications service?
wsm: Someday I may decide to litigate that case and contend that LTE and 5G is not protected by §332(c). But today is not that day.
pmg: Please make it that day 😎
wsm: I don’t think this will ever be crystal clear to you since although you may grasp some of the technical issues you have not been dealing with these confounding statutory and rule definitions or the insane way they have been interpreted and applied over the last 30 years.
pmg: . . . and we have to continue to play by the interpretation insanity playbook? No plain reading of rules counts? Can we not undo the harms from past insane rulings?
wsm: So, ultimately, one will just have to accept (or not) my position that Wi-Fi calling does not provide a useful hook to oppose OTARD based on the argument it is “commingled” and therefore covered by §332(c).
pmg: . . . because the interpretation insanity playbook says otherwise and that playbook can only be accessed by attorneys and judges and, therefore, is hidden from the public?
wsm: Besides, as I just said, Wi-Fi AND LTE/5G are probably is not properly covered by §332(c) since if you look at what the technology actually does they are actually an information service.
pmg: Agreed.
wsm: Stated another way there is no telecom service in wireless any more other than what remains of 2G and 3G (which are telecom and telecom service since there is no change in form or content and are offered on a common carrier basis).
pmg: Do I have this straight?
The only remaining telecommunications services are
- Telephone calls among POTS landline phones and any phones using 2G or 3G wireless service
. . . meaning that if any 4G VoLTE service, any VOIP service or any Wi-Fi calling or Skype/Zoom/GoToMeeting calling (wired or wireless) is involved then all of it is now information services and therefore unregulated by the FCC by their own admission in Mozilla et al v. the FCC?
Doesn’t that meant that there is no Section 332(c) preemption for these information services?
wsm: Think about the implications of that.
pmg: I just did. Can we claim this today?
6th
From: W. Scott M
Date: December 15, 2021 at 4:55 PM
To: Paul G
Subject: The Shrinking World of Telecommunications . . .
Yes, basically only traditional wired circuit-switched service is a telecommunications service. If you apply the literal terms of the definitions to the technology. “VoIP” is indeed an information service. LTE, 5G and Wi-Fi calling all rely on SIP in one way or another. There is a change in content, and often form. There is significant computer processing. So no they are literally not telecommunications (although they are provided “via telecommunications). They therefore cannot be a telecom service or CMRS. Or personal wireless service. For FCC regulatory purposes they are private mobile or private fixed.
And yes, that means the preemption in 332(c) does not apply, which in turn means local zoning authorities retain full traditional police power.
But that is not the current prevailing wisdom, even at the FCC. They have essentially “deemed” LTE and 5G to be telecom service, CMRS, personal wireless insofar as it still supports voice. They don’t want to talk about the actual technical aspects that render them information service and thus private service because that would inhibit their control over 911 (which IS important) and eliminate a lot of their preemption notions. It’s very similar to the angels on a pin semantics we have gone through with net neutrality and whether internet access is telecom/common carrier. Twist words to get result you want.
If I’m right then OTARD is even more important. Because it too is by definition not personal wireless service, yet FCC purports to preempt despite the lack of express preemption power like there is in 332(c) for anything other than video receive. They invoke implied authority over zoning AND ENVIRONMENTAL EFFECTS. And that is a completely different ball game.
Look. I’ve got a game plan. Right now, frankly, I want to give the new administration a chance to admit there is a health problem and commit to dealing with it. They have lots of reasons to not do so, but need to give them a chance to do the right thing. When they refuse, back to the playbook.
But have to make my plays one at a time, and in proper order. But I do not intend to reveal how it all works because Duh. I will say that IF we win OTARD (and that is not certain by any means, but even if we lose there are fall-backs) then I can come back around and make the next play. Yes, that is contending LTE and 5G (and 6G) are not within 332(c). Local authorities not bound by all the silly restrictions and FCC rules; they have full traditional zoning powers.
That may or may not ultimately end up also eliminating the preemption on state and local “regulation” of environmental effects that has been extended beyond zoning and into tort. That is a different preemption question than zoning in general. Also implied, but resolved through other parts of Title III and most specifically §303. And this is the end-game.
One card at a time.
7th
From: Paul G
Sent: Wednesday, December 15, 2021 5:05 PM
To: W. Scott M
Subject: The Shrinking World of Telecommunications . . .
Scott,
You are a master poker player. Keep playing your cards.
Thanks for the clarifications. I will tighten up my presentations, accordingly.
Thanks again and Happy Holidays to you and your family.