Intellectual Property Law

The Supreme Court of Guam Held that Internet Access Service is Neither a Telephone Service

By Martha L. Arias

Guam is an island located in the Western Pacific Ocean; it was controlled by Spain from 1668 until 1898 when it was surrendered to the United States as part of the Treaty of Paris, the treaty that ended the Spanish-American War. Thus, Guam is currently an unincorporated territory of the United States.  Guam is governed by the President of the United States, an elected governor, and a unicameral 15-member legislature. As any unincorporated territory of the United States, Guam has its own judicial system, including a Supreme Court.  In 2009, the Guam Supreme Court held that Internet service access is neither a telephone service nor a supplement to telephone service. This decision is consistent with decisions rendered by United States courts on whether Internet service access is a telecommunication service.

In Carlson v. Guam Tel. Auth., 2002 Guam 15, (2002), The Supreme Court of Guam was to decide whether internet access service was a telephone service within 12 Guam Code Ann. § 7104(a)(1993).  12 Guam Code Ann. § 7104(a) (1993) is the statutory provision that regulates the Guam Telephone Authority (GTA).  According to this provision, GTA has the power to ?install, maintain, sell and supply to individuals, firms, corporations and governments, including the government of Guam, telephone services.? Thus, GTA could only provide Internet access services if that service is considered a telephone service or a supplement to telephone service.

The controversy arose when GTA started offering Internet access service, through an Internet service provider (ISP) called GuamTel.net, on December 02, 2000. Plaintiffs, a group of private parties, sought declaratory relief and a permanent injunction against GTA.  The trial court granted relief for the plaintiffs and a permanent injunction against GTA.  GTA appealed before the Supreme Court of Guam.

The Supreme Court of Guam commenced its analysis by stating that there was not case on point to decide this issue, and that Ada v. GTA, 1999 Guam 10 was ?arguably useful? to decide this controversy. The parties to Carlson had different interpretations of the Ada case.  In Ada, GTA submitted a bid to acquire a Federal Communications Commission license to provide and operate personal communication services (PCS) in Guam.  The case went to court and the trial court ruled for GTA, and the Supreme Court of Guam affirmed.  PCS is a wireless telecommunication service that combines cellular telephone features with other advance technologies.  Thus, in Carlson, the Supreme Court of Guam refused to apply Ada. Additionally, the court held that it was unnecessary to rely on the Federal Communications Commission?s interpretation of the terms ?telecommunication services? and ?information services? arising out of the Federal Telecommunications Act of 1996. Rather, the court provided its own interpretation of 12 Guam Code Ann. § 7104(a)(1993), outside federal law.

The court held that telephonic communication is the transmission of speech over distances, and telephone service is the service that facilitates a two-way communication.  Then, according to these definitions, the court was to decide whether Internet access service was a telephone service or a supplement to it. The Supreme Court of Guam concluded that Internet access service is a data-transmission service. It supported this conclusion by providing examples of the other services provided by ISP such as e-mail, chatting, and other Internet-based features. So, the real issue in Carlson was to determine whether Internet access service was a supplement to telephone service.  The court concluded that ?Internet access service allows for a type of transmission of data and information that is by-and-large unrelated to ordinary telephone service, and therefore does not supplement such service.? Thus, Internet access was considered an animal on its own rather than a supplement to telephone service.   

The court in Carlson, therefore, held that ?GTA does not have the statutory authority to provide internet access services and GTA therefore exceeded its statutory authority in attempting to do so through its operation of GuamTel.Net.?

Full post as published by IBLS Internet Law Blog on February 08, 2010 (boomark / email).