FCC PUTS VoIP PROCEEDING ON AGENDA FOR FEB. 12 OPEN MEETING

The FCC late Thurs. announced its VoIP proceeding would be on the agenda for its Feb. 12 open meeting, along with a petition by Pulver.com for a ruling that its VoIP offering wasn’t a telecom service. The Pulver item was surprising because the FBI had expressed concern about the FCC’s acting on VoIP classification issues before handling a related CALEA issue (CD Feb 5 p4). The more general VoIP notice of proposed rulemaking is expected to ask for comment on several questions about how VoIP should be treated, but probably won’t make any conclusions.

Telecom companies and others made ex parte Commission visits and filings this week in a last-min. effort to press their views before the ban on lobbying kicked in, on release of the agenda. At least one phone company reportedly was racing late Thurs. to file what was described as a document proposing how the Commission could protect not only current VoIP services but future ones. There also was speculation the VoIP item might be pulled from the agenda and handled by circulation before the meeting.

In light of FBI’s CALEA concerns, pulver.com in an ex parte filing with the FCC Tues. clarified that it was “aware of its obligations under federal law with respect to law enforcement” and was “willing to meet those obligations.” It promised that “if presented with a lawful instrument, pulver.com will provide such call identifying information as it has access to, and will facilitate access to call content, to the extent that it is available.” Jeff Pulver, pres. and CEO of pulver.com Inc., said he was “very pleased” that the FCC included his petition on the agenda: “It is our hope that the FCC will grant this petition, providing key and necessary clarification that the [Free World Dialup] computer-to-computer VoIP service is not a telecommunications service. By doing this, the FCC will send a strong signal to consumers and capital markets that the FCC is not interested in subjecting end-to-end IP Communications services to traditional voice telecom regulation under the Communications Act.”

Meanwhile, SBC had urged the FCC not to delay ruling on another petition -- AT&T’s request seeking exemption of phone-to-phone IP telephony services from access charges pending completion of the rulemaking on VoIP. In an ex parte meeting with FCC Comr. Martin and aide Daniel Gonzalez this week, SBC argued that “the plain language of the Commission’s access charge rules requires AT&T to pay access charges on its ‘IP-in-the-middle’ long distance telephone service.”

Commenting on whether the AT&T petition should be decided at the same time as it issued a decision on whether Vonage-type service should be subject to access charges, SBC said: (1) While the AT&T access charge petition had been pending for 15 months, Vonage’s petition didn’t even raise access charge issues: “AT&T has not even argued, much less shown, that its petition should be decided contemporaneously with Vonage’s petition.” (2) A decision on the application of access charges in a Vonage-type situation was “nowhere near as urgent” as one on the AT&T petition: “Without a decision on the AT&T petition, AT&T can literally dismantle the access charge regime in virtually no time at all, simply by migrating its long distance traffic onto its IP backbone while the Commission stands idly by.” By contrast, it said Vonage and other VoIP providers were selling a service to end users and were “in no position to have any dramatic near-term effect on the access charge regime.” (3) Unlike a decision on AT&T’s petition, which “requires only a straightforward application of the law,” a decision on a Vonage-type service would have to address not only whether terminating access charges were due, but also whether the Commission’s current rules for determining the jurisdiction of such traffic should apply, “an issue the Commission may well want to address in an NPRM.”

In a separate ex parte filing, Qwest argued the “only fair, legal and just” way for the FCC to resolve AT&T’s petition was to rule that “until the Commission holds otherwise on a prospective basis, ‘phone-to-phone IP telephony service’ is and has been subject to access charges.” It urged the FCC to rule clearly that AT&T must retroactively pay such charges: “Once the Commission reiterates the law that access charges apply to such traffic, then AT&T’s obligation to pay such charges on traffic it handled in the past is a matter of law to be addressed in collection actions against AT&T. The Commission cannot in this proceeding exempt AT&T from its legal obligation to pay such charges.” Qwest urged the Commission not to tie the AT&T petition to action on the NPRM: “The FCC has obligations to tell us today what the rules are. The NPRM is about the future.” It said it wasn’t asking the Commission to decide on the new rules at this time, but stressed it was critical that it rule on the AT&T petition now because “it’s about what the rules are today.”

Verizon also urged the agency to act quickly and deny AT&T’s petition. In an ex parte meeting Mon. with FCC Comr. Adelstein’s aide Lisa Zaina, Verizon urged the Commission to decide that its existing rules required the payment of access charges when local exchange switching facilities were used to originate or terminate long distance calls, regardless of intermediate technology used. On another petition filed by pulver.com and Vonage, Verizon said: “The Commission need not decide at this time whether these services are information services or telecommunications services in order to establish its exclusive jurisdiction.” -- Edie Herman, Susan Polyakova

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The agenda for the FCC meeting also includes a proposal on broadband over powerline (BPL) systems, which advocates have touted as offering a “3rd wire” into the home for broadband competition. In advance of FCC consideration, the Federal Emergency Management Agency recently departed from an earlier position that BPL posed an interference problem for its emergency communications. The FCC opened an inquiry last year on whether BPL could cause interference and how best to measure emissions. The Commission also will consider a proposal on possible changes in its service disruption reporting requirements. That proposal has been expected to examine network outage reporting requirements across the board for wireline, wireless and cable providers (CD Jan 15 p4). Now only wireline providers face mandatory reporting. One key issue watched by industry observers has been how the proposal would handle the measurement of outages across different kinds of networks. It will address wireless reporting requirements for the first time. The FCC also is expected to consider a new order making changes in the Multi- Association Group (MAG) plan, which several years ago reformed access charges and universal service for small, rural companies.