11
that B & C services are "communication services." The FCC
explained the change as follows:
We recognize that in the Billing and Collection
Detariffing Order, the Commission found that LEC
billing and collection for an unaffiliated IXC is "not
a communication service for purposes of Title II of the
Communications Act," but rather, "is a financial and
administrative service." * * * Nevertheless, in
recognizing its Title I ancillary jurisdiction over
billing and collection services, the Commission found
that such services were "incidental" to the
transmission of wire communications and thus fell
within the meaning of "wire communication" as defined
in Section 3(a) of the Act. * * * These two findings
appear inconsistent. Upon further analysis, we believe
that the latter conclusion, that billing and collection
is incidental to the transmission of wire communication
and thus is properly considered a communications
service under Section 3(a) of the Act, is the correct
one. Billing and collection, of course, remains
outside the scope of Title II because it is not a
common carrier service. * * * [Emphasis supplied.]
7 FCC Rcd at 3533 n. 50.
The Tenth Circuit, which includes Kansas, has acknowledged
the 1992 FCC Decision. In Mical Communications, Inc. v. Spring
Telemedia, Inc., 1 F.3d 1031, 1039 (10th Cir. 1993), the court
stated that the FCC "appeared in that order, however, to retreat
from its characterization of billing and collection by LECs as
merely a 'financial and administrative' service."
2. Analysis
In 1934, Congress created the Federal Communications
Commission
For the purpose of regulating interstate and foreign
commerce in communication by wire and radio so as to
make available, so far as possible, to all the people
of the United States a rapid, efficient, Nation-wide,
and world-wide wire and radio communication service
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