Telecom Law Monitor : Washington D.C. Telecom Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

Despite issues over the FCC's jurisdiction in light of the Comcast decision, the FCC's Public Safety Bureau took a step toward possible extension of the FCC's outage reporting requirements to broadband service providers and providers of interconnected VoIP services.  In a July 2 Public Notice, the Bureau seeks comment "in advance of" a possible Commission rulemaking proceeding.  The comment request in many ways presumes that the outage reporting rules should apply, and asks a number of questions about how they could apply and what changes might be necessary in light of the different technologies involved.  Clearly, the Bureau is seeking to do its homework before the Commission initiates a rulemaking proceeding.

• Email This
• Print
• Trackbacks
• Share Link

A diverse group of telecom companies and trade groups have jointly submitted a supporting brief to the U.S. Court of Appeals in the Paetec v. CommPartners appeal.  The Joint Brief includes ILECS like AT&T and Verizon, CLECs like Neutral Tandem, and normally contrary trade associations like USTA and the VON Coalition. Although these parties have wildly divergent views on how the VoIP access charge dispute should be resolved, they all agree that the Court of Appeals should decide the issue now.  The Joint Brief states that the parties submitting  "have differing views about the merits" of the district court ruling, "but all agree that a decision from" the Court of Appeals is desirable to clarify the situation for all concerned.  

No one knows for sure, but the many pending cases and disputes on VoIP access charges collectively probably have hundreds of millions of dollars at stake.   The FCC has exerted much effort to avoid making a decision on the court referrals and various petitions that it has received on the subject since 2005. 

• Email This
• Print
• Trackbacks
• Share Link

The VoIP jurisdictional saga continues.  Last month, we discussed a decision by the Pennsylvania PUC asserting jurisdiction over intrastate Voice over IP calls and a decision by a US District Court reaching the opposite conclusion.  Tomorrow, parties are asked to comment on a petition seeking, among other things, to preempt the Pennsylvania decision.  We will be watching the comments and will post on anything of interest in the comments.

4/6/10 QUICK UPDATE:  19 entities filed comments in response to the Global NAPs petition.  Most were ILECs or state commissions opposing the specific rulings proposed.

This latest VoIP proceeding has its origins in the Pennsylvania PUC decision. After the decision was issued, the carrier ordered to pay intrastate access charges, Global NAPs, filed a Petition for Declaratory Ruling with the FCC. The Petition seeks four rulings from the FCC:

1. The Vonage Order prohibits state commissions from subjecting VoIP traffic to intrastate tariffs;

2. Once a carrier’s service has been determined to be “primarily nomadic” VoIP, the remainder of its traffic also is interstate, absent “clear proof of purely intrastate calls”;

3. The Local Exchange Routing Guide (“LERG”) is not a reliable proxy for the geographic point of origination of VoIP calls; and

4. Connecting carriers that forward VoIP traffic are immune from interstate and intrastate switched access charges.

In the alternative, Global NAPs seeks preemption of the Pennsylvania PUC decision and “recent and/or impending” rulings in Maryland and New Hampshire.

The FCC released a Public Notice seeking comment on the Global NAPs Petition.  Comments are due April 2; replies April 12. 

• Email This
• Print
• Trackbacks
• Share Link

The Genachowski FCC is enamored with the bully pulpit as an enforcement tool.  In the year since the new Chairman has taken office, we've seen examples with FCC letters to Apple regarding its iPhone approval practices; letters to Google concerning the classification of Google Voice; and letters to wireless carriers concerning their early termination fees.  This time, the FCC's Public Safety and Homeland Security Bureau "reminds" telecommunications carriers of the need to provide diversity and redundancy in their 911 and E-911 services.  Although the Public Notice is not enforceable and does not cite to enforceable rules, it clearly is intended to influence carrier behavior.  Those who fail to heed this "reminder" could find themselves in an investigation questioning whether their practices are "just and reasonable."

The Public Notice stemmed from a review by the Bureau of network outage reports that carriers are required to file.  The Bureau stated that it has observed a "significant number" of 911/E911 outages caused by a lack of diversity.  Moreover, it notes that these outages "could have been avoided at little expense to the service provider"  (emphasis mine).   The clear implication is that FCC tolerance for these types of outages will diminish over time. 

Follow the link for a discussion of the diversity mistakes highlighted by the Bureau.

• Email This
• Print
• Trackbacks
• Share Link

In a February 11, 2010 ruling in Palmerton Telephone Company v. Global NAPs South, Docket No. C-2009-2093336, the Pennsylvania PUC concluded that Global NAPs is required to pay intrastate access charges for terminating VoIP calls.  The opinion is 30 pages long and highly detailed, but overall it appears to be contrary to the recent decision by the U.S. District Court in Paetec v. CommPartners, where the court ruled that VoIP services are not subject to access charges.  And although the PA PUC attempted to distinguish another May 1, 2009 ruling of the U.S. Court of Appeals in Vonage v. Nebraska PSC preempting a state regulation of VoIP, the new PA PUC decision appears to contradict that Vonage ruling as well.  The May 2009 Vonage opinion upheld a lower court finding that the FCC had "concluded nomadic interconnected VoIP services were only subject to regulation by the FCC."  The PA PUC rejects that reading of Vonage on the basis that Global NAPs' wholesale services are different from Vonage's retail services (even while recognizing that over 50% of Global NAPs traffic may be VoIP).  The PUC thus claims jurisdiction and orders Global NAPs to pay intrastate access charges to Palmerton. 

These conflicting court and PUC rulings are providing increased need for the FCC to finally stop avoiding the issue and address directly the application of access charges to VoIP services.

• Email This
• Print
• Trackbacks
• Share Link

UPDATED -- FORM 499 RELEASED

The FCC's Wireline Competition Bureau announced the new FCC Form 499A today.  This form, which must be used to file the April 1 annual revenue report, includes several potentially significant changes.  Audio bridging providers (conference service providers) and those close to the de minimis threshold are most affected.

As of COB yesterday, only the announcement was available.  The 499A itself will be released today and I will update this post when it is available.   UPDATE:  The new Form 499A is available here.

Follow the jump for a discussion of the changes.

• Email This
• Print
• Trackbacks
• Share Link

The U.S. District Court in D.C. ruled today that IP-originated calls are "information services" that are subject to the local reciprocal compensation scheme - and not access charges - for intercarrier compensation.  The ruling came in Paetec Communications v. CommPartners, LLC, U.S. Dist Ct for DC, Civ. Action No. 08-0397.   Paetec filed the case against CommPartners seeking to collect access charges for all calls, both TDM and VoIP originated.  CommPartners conceded that it owed access fees on the TDM calls, but argued that VoIP calls are information services exempt from access under the FCC's longstanding access charge exemption for such calls.  The Court agreed.  In reaching its opinion...

• Email This
• Print
• Trackbacks
• Share Link

The enforcement date for the FTC "Red Flag Rule" to prevent identity theft  has been extended until November 1, 2009 in order to give businesses more time to understand the rule and take steps to comply.  The rule applies to any entity under FTC jurisdiction that is a "creditor" or "financial institution" and which maintains customer accounts which extend credit through post-paid arrangement.  This would include a VoIP provider that bills monthly after the fact, for example.  For those subject to the rule, they must take steps outlined by the FTC to allow them to look for "red flags" which might indicate identity theft from their customer information.  Click here for more information.  The rule should be taken seriously, both because FTC enforcement action can be taken against companies who fail to comply, and because failure to comply might create follow-on civil liability in class action or consumer lawsuits.  Additional information about the Red Flag Rule is also available on Kelley Drye's Advertising Law blog.

• Email This
• Print
• Trackbacks
• Share Link

The Consumer and Governmental Affairs Bureau of the FCC has reversed a November decision by its Consumer Policy Division relating to alleged slamming by a VoIP provider. The Bureau's May 19 ruling granted a request to reconsider the Consumer Policy Division's November 6, 2008 decision that Mediacom, a VoIP provider, had violated the "slamming" rules by switching a customer from Verizon to Mediacom without following the FCC's prescribed procedures for authorizing carrier changes. The November Order of the Division stated that it had sought to contact Mediacom but gotten no response, and thus it applied a presumption of liability to Mediacom and held it liable for slamming. The new Bureau Order indicates that Mediacom had actually responded to the Division, but had misfiled it and thus the Division was unaware of the response at the time it ruled. Then, stating that "the Commission's carrier change rules have not been extended to VoIP", the Bureau rescinded the November Order and denied the slamming complaint against Mediacom. The Bureau noted that the FCC requested public comment on the application of the slamming rules to VoIP in 2004, but has never acted on that proposal.

This latest ruling remains consistent with the FCC's position that VoIP providers are only subject to carrier rules after the FCC explicitly decides to apply them; in contrast, more traditional carriers are obligated to observe all rules simply by virtue of being authorized to operate as common carriers. In light of the FCC's extension of the number porting rules to VoIP providers, however, it seems very likely that the slamming rules will be extened to VoIP sometime in the next several months.

• Email This
• Print
• Trackbacks
• Share Link

In a move that surprised almost no one, the FCC extended its discontinuance of service rules to providers of interconnected VoIP services.  When this latest action becomes effective, interconnected VoIP providers will be required to give customers advance notice of plans to discontinue service and will have to file for FCC approval of such actions.  FCC approval is automatic 30 days after the Commission issues public notice, unless it issues an order denying the discontinuance within that time.  Curiously, although the Vonage order preempts state regulation of interconnected VoIP entry or exit, the discontinuance rules require interconnected VoIP providers to notify the relevant state commissions in addition to the FCC.  

More broadly, as it has before, the FCC refused to classify interconnected VoIP service as either a telecommunications service or an information service.  So, while we still don't know what it is, exactly, interconnected VoIP has yet another of the obligations traditionally associated with POTS service.  

Kelley Drye Client Advisory - FCC Releases Order Extending Discontinuance of Service
Requirements to Providers of Interconnected VoIP Service 

• Email This
• Print
• Trackbacks
• Share Link

Late last night, the FCC announced its agenda for its May 13 Open Meeting. Highlighting the agenda are items relating to VoIP provider discontinuance obligations and LNP deadlines.

VoIP

The FCC announced that it plans to “consider a Report and Order concerning the requirements of interconnected VoIP providers when discontinuing service.”  This is sort of a stealth item on the agenda, as there has been virtually no discussion in the docket on this issue in the most recent months.

We hear that the FCC is likely to impose notice requirements similar to those that apply for traditional telecommunications carriers. This will continue a trend for interconnected VoIP where the FCC has imposed, one-by-one, obligations traditionally held by telecommunications carriers while steadfastly refusing to classify interconnected VoIP services. In today’s state of affairs, interconnected VoIP has nearly all of the burdens of regulation but few of the benefits. The most significant outstanding issue continues to be the application of access charges to interconnected VoIP. This topic has been a subject of litigation for some time.

Number Porting

The FCC will address porting intervals and related standards for the transfer of telephone numbers between carriers when a customer switches service providers. Cable providers in particular are pushing for a maximum interval of one-day for simple wireline to wireline and intermodal porting requests. The Order could also further address the information that carriers may require in order to implement a porting request, response intervals for customer service requests (CSRs) and other concerns raised regarding fair competition among providers.
 

• Email This
• Print
• Trackbacks
• Share Link

The U.S. Court of Appeals for the Eighth Circuit has ruled in favor of Vonage and rejected an attempt by the Nebraska PSC to claim regulatory authority over VoIP.  Vonage v. Nebraska PSC, 564 F. 3d 900 (8th Cir. 2009).  Specifically, Nebraska argued that the FCC's original ruling that VoIP is subject to exclusive federal jurisdiction was effectively modified by the FCC's subsequent creation of a "safe harbor" for payment of federal universal service payments by VoIP providers.  Nebraska argued that when the FCC created a presumption that VoIP calls are 64.5% interstate, and directed VoIP providers to make USF contributions on that basis, the inevitable corollary is that 35.5% of VoIP calls are intrastate.  On that basis, the Nebraska PSC sought to levy state universal service fees on 35.5% of Vonage's Nebraska calling.  The Court of Appeals rejected the Nebraska argument, finding that the FCC's preemption of all state regulation of nomadic VoIP was not modified or inconsistent with the FCC's creation of a 64.5% safe harbor for USF purposes.  It is noteworthy, however, that the court focused expressly on "nomadic" VoIP, leaving open the possibility of a different outcome for fixed VoIP services because the FCC's earlier preemption order is based on the nomadic nature of the service being considered in that instance. Nebraska has now petitioned the FCC to modify its order to allow for state assessment of USF on VoIP providers.

Click here to read the Kelley Drye Client Advisory.
 

• Email This
• Print
• Trackbacks
• Share Link