It seems logical to think that leasing dark fiber is not a telecommunications service. Dark fiber is only a component of a service, not a service unto itself. It may therefore come as a surprise to know that the FCC (and the courts) has a different opinion.

The FCC has found that leasing dark fiber is “wire communications” subject to its jurisdiction under Title II of the Communications Act because it “permits the transmission of information” and because “the provider of dark fiber still owns, maintains, and repairs the fiber and merely leases it to the customer for a term of months or years.” In other words, the FCC has determined that not only is the transmission of communications subject to its jurisdiction, but also “instrumentalities, facilities, apparatus, and services incidental to such transmission,” such as dark fiber and the ownership, maintenance and repair of dark fiber.

It is an odd finding, to say the least, which, unfortunately has been relied upon not only by the FCC but the courts as well. Although the definition of “wire communications” in the Communications Act refers to incidental instrumentalities, facilities, apparatus, and services, the definition is clearly focused on “transmission” and not the means of transmission. The definition refers to transmission “by” those incidentals, not the incidentals themselves and certainly not their ownership, maintenance and repair. Moreover, the definition of “telecommunication services” in the Communications Act does not refer to any such incidentals but instead refers solely to “telecommunications” which, in turn, is defined as the “transmission” of information between points of the user’s choosing without changing the form or content of the information and not the means of transmission. Dark fiber, by definition, does not transmit. (Interestingly, Title II of the Communications Act, which is the source of the FCC’s finding, uses the term “communications service,” which is not defined in the Communications Act.)

Even if dark fiber is included in the FCC’s regulatory authority under Title II of the Communications Act, it can only be regulated if it is offered as common carriage. If the provider is legally compelled to provide a service as common carriage or if a service is offered to the public or a class of the public indiscriminately, then it is most likely common carriage. If, on the other hand, the lessor of dark fiber determines with whom to lease the fiber, when and on what basis, it is private carriage, which is not subject to the jurisdiction of the FCC or, in most instances, the states. Whether a service is common carriage or private carriage is a question of fact; meaning, it depends on the facts of the offering. For instance, any one or a combination of the following indicia could result in common carriage: if the lessor advertises the lease of dark fiber to the general public, doesn’t retain any for itself, enters into short term lease agreements, has a high rate of customer churn or enters into leases which are not specific to each lessee. To coin a phrase, “I know it when I see it.”