FCC Approves NPRM to Guide IP Transition

To Democrats Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel, the agency, while recognizing the benefits of the transition, still has the responsibility to make sure the transition occurs while preserving consumer protection, public safety and competition.

While not disputing that, Republican Commissioners Mike O’Rielly and Ajit Pai expressed concerns that the agency will hinder the transition through regulation. Pai likened the concerns raised in the NPRM to Chicken Little, saying “some in Washington have had that same reaction to the IP Transition. They evidently believe that the replacement of aging twisted pairs of copper with fiber and IP-based services presages disaster.”

Pai said he worried “we are well on our way to becoming like Ducky Lucky, Goosey Loosey and the other characters who join in Chicken Little’s hysteria. All too much ink is spilled in this item discussing every conceivable harm that might come with the IP transition,” Pai said, adding he’s concerned “the end result of this proceeding will be rules that frustrate rather than further the IP transition, regulations that deter rather than promote fiber deployment, and requirements that slow rather than expedite the availability of high-speed broadband throughout our nation.” Pai and O’Rielly concurred with asking questions in the combination NPRM and declaratory ruling, but dissented with the ruling. The ruling clarifies the question of when carriers seeking to discontinue a service are required to get commission approval under the Section 214 process, Wireline Chief Julie Veach told reporters. Rather than being based not on the strict definition of the service, the test will be whether the discontinuation has a practical impact on communities, she said.

Companies and consumer groups were divided in their reaction, along the same lines as the commissioners. Bob Quinn, AT&T senior vice president-federal regulatory, cautioned in a statement that the agency should recognize customers “are demanding higher speeds and more capacity” and said the agency should preserve the industry’s ability to “continue to invest in faster and better Internet for consumers.”

The FCC should “adopt policies that encourage deployment and continued investment in advanced networks and ... not require companies to keep legacy technologies in place in a way that does not serve consumers,” said Chris Levendos, Verizon vice president-network transformation, in a blog post.

“Strong rules” will ensure people adopting new technologies will be “safe in the knowledge that new technologies will be as good or better than what customers had before,” said Jodie Griffin, Public Knowledge senior staff attorney, in a statement.

In the wake of the major “sunny day” outages to 911 this year caused not by storms but software and database errors, the commission, also in a party-line vote, issued a separate NPRM that proposes to create new certification and notification requirements for 911 providers.

The IP transition NPRM takes its strongest stance on what happens when incumbents want to retire a “last mile” service like DS1 or DS3 that competitors say they rely on to reach their customers. While the commission seeks comments in the NPRM on such issues as backup battery standards and what factors should be considered in deciding whether to allow services to be discontinued, the commission tentatively concluded that carriers seeking to discontinue the wholesale service should be required to provide competitive carriers with “equivalent” service. Competitive carriers like Windstream, plus Comptel, have been pushing for such a requirement, saying when services are discontinued competitors can be priced out of continuing to offer service and could be driven out of business (see 1411040060). Incumbents have responded that competitors can simply build their own lines. The NPRM text was not publicly available as of our deadline Friday, but it seeks comment on what would be considered “equivalent,” Veach said.

“Businesses need certainty to plan and make investments,” Clyburn said, but “lack of certainty, due in part to the FCC’s inaction, impacts the very companies that could provide more robust and desirable competitive choices for small and medium-sized businesses throughout this country.”

The NPRM reflects a “do no harm” approach to competition during the IP transition, Eric Einhorn, Windstream-senior vice president-government affairs and strategy, told us after the meeting. The rulemaking also pointed to Wheeler’s remarks at a Comptel trade show in Grapevine, Texas, last month that the ‘IP transition is not an excuse to limit competition [see 1410070028],'" said Chris Murray, EarthLink senior vice president-public policy.

The declaratory ruling on Section 214 was important, Griffin said in an interview. But rather than following strict tariff definitions, the agency asserted it has jurisdiction if a community will lose a service. A provider, for instance, could argue it doesn't need approval to replace traditional phone service with VoIP because without a dial tone, it’s not the same service, Griffin said. Under the ruling, approval would be needed because it would affect phone service in a community.

Pai, quoting from the NPRM, said the ruling will “require carriers to seek permission from the FCC before discontinuing ‘every (network) feature no matter how little-used or old-fashioned.’" Calling the ruling an “abrupt reversal of decades-old policy” that is “unnecessary and counterproductive,” Pai said, “dramatically expanding the scope of the section 214 … means that carriers will have to keep investing in legacy copper networks to support service features that may be used by few if any actual consumers. This Hotel California-style regulatory approach condemns carriers to checking out of copper any time they like, but never being able to leave.”

O’Rielly also predicted the ruling will deter progress, saying providers will “do just enough to maintain their existing copper network. What a waste. Instead of embracing new technologies we are telling providers that they are subject to the whims of a regulatory body operating behind the times. And consumers will pay higher rates in the end for protections that many do not want or need.”

Calling the new standard “nebulous” and reading from the NPRM, O’Rielly said that instead of “defining a service based on the terms of a carrier’s tariff, the commission will take into account ‘the totality of the circumstances from the perspective of the relevant community or part of a community, when analyzing whether a service is discontinued, reduced, or impaired under section 214.’ In other words, a carrier has to guess how the service is being used, what the community thinks about such uses, and whether the FCC would require a filing in such instances. Moreover, it has to figure out what a part of a community means.”

The NPRM text seeks comment on what transparency measures should be put in place to notify customers that copper-based service is being retired, according to Veach. It also asks what requirements there ought to be on backup battery power, Deputy Wireline Chief Matthew DelNero told reporters. It also seeks comment on what metrics should be used in the discontinuation. An agency news release said the approval process would ensure new services meet the needs of consumers when carriers are allowed to remove legacy services. DelNero said the question is important, with providers moving toward retiring such services as copper. Public Knowledge has suggested some factors be considered including the quality of phone service and the ability to use such other services as home health monitoring (see 1411060031).

“The ways we connect, create, educate, entertain, and govern ourselves will never be the same,” Rosenworcel said. But while that’s “exciting,” she said that “does not mean that we discard on the scrap heap what has come before.” As “we contemplate big, bold, and historic changes in our infrastructure,” public safety, universal access, competition and consumer protection “must be the guideposts for everything we do.”

Pai said it was his suggestion to ask in the NPRM about the “cost of compliance and benefits of mandates.” Also included was his suggestion to seek comment on a “simple alternative to more invasive battery backup mandates: a straightforward requirement that all telephone companies make available [in the market] at least one phone that can use commercially available batteries in case of power outages.”

The separate 911 NPRM seeks comment on requiring 911 providers to notify the public when making a major change to 911 services and would require entities seeking to offer new 911 capabilities and services to certify they have they technical and operational capabilities to provide the service, a news release said.