Telecom Law Monitor

Back in November, we told you that the FCC was considering an order on reconsideration in the 2008 audio bridging classification appeal brought by InterCall, Inc.  It took over two months, but the FCC last week issued an order denying in full the petitions for reconsideration of the Classification Order.

The petitions were brought by two free conferencing providers, who argued that the FCC had misinterpreted the nature of audio bridging service (or at least their audio bridging services).  In the reconsideration order, the FCC denies the petitions.  While we had hoped that the reconsideration order would provide additional explanation of the rationale for classifying audio bridging as telecommunications, except for a discussion of bundled services, the order does not provide further guidance on the classification of bridging services.  As a result, audio conferencing providers will be left with the existing uncertainty for the foreseeable future when making classification decisions.   

The FCC Reconsideration Order denies in full the recon petitions submitted by two "free" conferencing providers, Global Conferencing Partners (GCP) and A+ Conferencing.  The order affirms the conclusions in the 2008 Classification Order that audio bridging is "telecommunications" and that audio bridging providers must contribute to the USF.  With respect to the role of the conference bridge, the FCC does not classify the bridge as a switch or an intermediate point of routing.  Instead, it concludes that the bridge facilitates routing, not that it performs the routing itself. 

The Commission provides the most guidance in its discussion of additional features of the conference bridge.  In the Classification Order, the Commission had found that features such as recording and playback are separate from the audio bridging functionality.  In the Reconsideration Order, the FCC reiterated that the question is whether such functions are sufficiently integrated with the telecommunications so as to form a single service.  If so, then the entire service can be treated as an information service; if not, then the provider must treat the offering as a bundle of services and perform an allocation of the revenues between the two services. 

The Commission briefly referred to two services offered by petitioner GCP -- a "whiteboarding" feature and "other computing capabilities" made available to conference participants -- both of which, the FCC concluded, are offered "simultaneously" with the audio bridging.  This was, in the FCC's view, not sufficiently integrated to constitute a single service.  Conferencing providers should review any similar services they offer carefully in light of this additional guidance.