It may come as a surprise to know that the FCC (and the courts) have determined that dark fiber can be a regulated service. 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 dark fiber is subject to its jurisdiction because it involves “instrumentalities, facilities, apparatus, and services incidental to” the transmission of communications, such as dark fiber and the ownership, maintenance and repair of dark fiber. The FCC’s finding, which has been affirmed by federal courts, is based on the definition of “wire communications” in the Communications Act, which refers to incidental “instrumentalities, facilities, apparatus, and services.”
Even though dark fiber has been determined by the FCC to fall within its 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 provider of dark fiber determines with whom to deal, 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 provider advertises the availability of dark fiber to the general public, doesn’t retain any for itself, enters into short term agreements for the use of the fiber, has a high rate of customer churn or enters into agreements which are not specific to each user. To coin a phrase, the difference between common and private carriage is, like most questions of fact, a matter of “I know it when I see it.”