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Summary of FCC Order Calling for IP Technology Transition Trial Proposals

Feb. 3, 2014

On Friday January 31, the FCC released an Order, a Notice of Proposed Rulemaking, and Notice of Inquiry regarding Technology Transition Trials. These trials are not designed to test technology but to test how the FCC’s core “values underlying operation of today’s networks can be preserved and enhanced throughout technological change.” Specifically, the FCC is anticipating the eventual elimination of traditional wireline voice telephone service, and the trials are intended to explore potential consequences of that technological development.

The Order establishes a) service based experiments, b) discrete experiments, and c) research targeted to network values: including i) rural broadband; ii) Disability Access research; and iii) Next Generation Numbering. Lastly, the Order covers improvements in data collection. This memorandum addresses the Order’s discussion of service-based experiments. If you would like analysis of the other aspects of the FCC’s Order please contact one of the attorneys listed below.

I. Invitation to Providers to Test IP-based alternatives to existing services

The Order sets forth the FCC’s invitation to all providers (including CLECs, ILECs, cable operators, wireless providers) to submit proposals for testing and analyzing the impact of the technology transitions (including TDM to IP and wireline to wireless) on the Commission’s core values that have traditionally informed communications law: The Order identifies these core values as i) Public safety; ii) universal service; iii) competition and iv) Consumer protection.

The Order explains that the experiments are not designed to resolve policy questions and that any regulatory issues that arise will not bias the eventual outcome of a policy debate. For instance, the Order notes that a providers’ agreement inside an experiment to exchange IP traffic (without first converting it to TDM) will not operate as a concession that IP traffic is subject to mandatory interconnection obligations.

For each value - i) Public safety; ii) universal service; iii) competition and iv) Consumer protection - the FCC has imposed a series of conditions applicable to all service-based experiments. Some conditions are required; others are required but may be rebutted where the applicant makes a strong showing that compliance with the condition during the experiment will not serve the public interest. The summary below highlights the most significant of the conditions - both the

A. Solicitation of Proposals

The FCC welcomes proposals from all types of providers of network services, including groups of providers, and encourages diversity in the experiments and the geographic areas covered. All proposals will be subject to public comment.

B. Design Features

  • Experiments must be voluntary for customers (but waivers available for good cause)
  • Conditional section 214 approvals will be needed in order for provider conducting experiment to cease offering legacy services to new customers
  • FCC evaluation of final section 214 approvals to discontinue legacy services permanently will include an assessment of the discontinuance’s impact on the core values described above
  • Applicants must identify all of the regulatory relief needed in order to proceed with experiment
  • Applicants must identify state and local authorities with jurisdiction over the services and geography covered in the experiment; the FCC presumes that applicants will comply with state/local law and an application may be contingent on receiving necessary state or local approvals
  • Proposals must detail the purposes of the experiment; how the experiment will allow for public comment and FCC evaluation; and the proposed metrics used to evaluate the success of trial
  • Proposals must allow FCC to identify geography, product service offering, user or other arena in which the experiment is to occur

C. Technical Information

Each application must explain the network changes the provider intends to make; the impact on offered services; impact on customers and whether they will need to purchase new CPE (i.e., credit card readers, fax machines, medical monitoring devices, etc.).

D. Impact on Enduring Values

1. Public Safety

a. Required:

  • Proposed experiments must: preserve existing 911/e911 and next generation 911 capabilities including provision of accurate location information
  • No diminution of service provided to PSAPs
  • Applicants must explain how they will restore services in case of a public safety failure (i.e., failure to comply with conditions of experiment applicable to public safety) (either by fixing new service or restoring “legacy’ service”
  • Protect essential government communications that rely on TDM (responding to concerns from federal agencies, FAA, and the DOD.
  • Ensure network security - FCC encourages applicants to consult NIST’s cybersecurity framework as well as CSRIC best practices
  • Ensure adequate backup power through compliance with the FCC’s backup power rules for 911
  • Report network outages as required under the FCC’s rules
  • CALEA compliance

b. Required but rebuttable:

  • Provide public alerts - such as Wireless Emergency Alerts; maintain legacy EAS alerting capability
  • Maintain current levels of network reliability
  • Comply with Public Safety Priority requirements: WPS; TPS, GETS

2. Universal Service

a. Required:

  • Compliance with disability access statutes and the FCC’s disability access rules; the application must show that it considered impact on disabled community - FCC expects applicants to focus on disability access to 911, TRS, remote closed captions and use of assistive technologies
  • Protect interest of “at-risk” populations such as elderly, low income

b. Required but rebuttable:

  • Maintain status quo regarding compliance with existing FCC universal service rules and policies, including any obligations applicant has as an ETC
  • No diminution in Internet access services: applicant should explain in detail any changes in technical performance including measurements of speed, latency, jitter, as well as pricing/usage capacities
  • Maintain level of service quality - including blocking and failure rates

3. Competition

a. Required;

(1) Wholesale Access

  • During experiment, applicant must maintain competitors’ access to applicant’s network
  • Wholesale customers’ participation in experiment is voluntary
  • FCC notes in future it may allow withdrawal of existing wholesale services and indicates it expects proposals for such changes would include a proposals to replace existing wholesale inputs with substantially similar replacement services
  • Any application and experiment must comply with the following requirements:
    • Explain provider’s plan to ensure continued wholesale access
    • Replacement services, if any must be functionally equivalent to existing service
    • Ensure against price increases
    • Neither wholesale nor retail customers can be penalized as result of experiment (FCC specifically identifies application of discounts and suggests ETFs should be waived if service subject to ETF is terminated as part of experiment)

(1) Interconnection

  • Maintain status quo in providing interconnection to both existing and new customers:
    • Continue providing access to interconnection for same types of providers that currently interconnect
    • Interconnection under experiment must be functionally equivalent to existing interconnection
    • No rate increases or additional costs for interconnection during experiment
    • Application must include an explanation of impact on interconnection
  • Proposed experiments may not impair service to competitors or their end users or end users of other competitors that are interconnected to applicant in the area of the experiment; the FCC wants the ability to evaluate whether customers in the experiment can select their own IXC and how third-party IXCs will terminate traffic to customers in area of experiment.

b. Required but rebuttable

(1) Intercarrier Compensation

  • Applications should confirm ICC status quo will apply or justify any proposed changes
  • Applications should explain impact of experiment on ICC revenues; obligation to file tariffs
  • Adjustments needed, if any, in ILEC’s eligible recovery to avoid rate increases
  • IP interconnection obligations and rights - if carrier proposes to deviate from current rules it needs to explain what different treatment should apply to which traffic

4. Consumer Protection

  • Protect consumer privacy
  • Compliance with slamming, cramming and truth in billing
  • Maintain local number portability
  • Preserve call routing reliability - compliance with USF/ICC reform rules and Rural Call Completion Order

E. Customer Notice

  • Clear, timely and sufficient notice of any service based experiment
  • Complaints: online forms are encouraged; applicants must allow emailed and toll free feedback; must notify customers regarding contacts for complaints in clear and conspicuous manner
  • Presume that current requirements such as notice of network change and discontinuance rules apply but can be rebutted

F. Data Collection

  • Experiments are “open-data”
  • Applications should identify specific data to be collected
  • FCC suggests collecting data on network capacity; call quality; device interoperability; service to persons with disabilities, system availability, 911 and PSAP service, cybersecurity, call persistence, call functionality, and service coverage
  • Applicants also should collect data on service to persons with disabilities; FCC expects experiments to include a “control group” unless the nature of the experiment would not accommodate a control group

G. Submission Process

  • Experiment proposals due Thursday, February 20, 2014
  • FCC Public Notice seeking comment on submitted proposals shortly after the proposals are filed
  • Comments due Friday, March 21, 2014
  • Replies due Monday, March 31, 2014
  • May FCC meeting to approve experiments
  • FCC decision within approximately 60 days of the reply comment deadline

The FCC also noted it will consider additional proposals outside of this timeframe, but not later than one year from the approval of the initial experiments.

 

If you have questions regarding this order or would like to further discuss these issues, please feel free to contact one of the following lawyers in our Telecommunications, Media & Technology Group:

Andrew Lipman
202.373.6033
andrew.lipman@bingham.com

Eric Branfman
202.373.6553
eric.branfman@bingham.com

Joshua Bobeck
202.373.6010
joshua.bobeck@bingham.com

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