Battery Backup Power Debate Reflects Gulf Over FCC IP Transition Role

AARP urged the FCC to go beyond its proposal to require at least eight hours of battery backup power and instead advocated providing at least 12 hours, while Public Knowledge went further and urged that the requirement be at least a week of power. Indicative of the gulf over the role the agency should play in the IP transition -- over a range of items in the tech transition rulemaking, including tougher discontinuation hurdles and greater assurances of last-mile special access by competitive carriers (see 1411210037) -- AT&T and Verizon opposed any new backup power requirements. Reply comments were due Monday night in docket 13-5 and posted Tuesday.

The consumer groups argued that the longer backup power requirement is necessary to better ensure customers will be able to reach help if they are caught in a long power outage, as occurred in the aftermath of Superstorm Sandy (see 1303010058). Calling the proposed requirement an “unnecessary” rule “that customers don’t want,” Verizon said some customers choose not to purchase backup power, but rely on wireless phones. Under a deregulated environment, customers have been responsible for making sure customer premises equipment like phones keep working during power outages, AT&T said. Should the agency create a requirement, providers should be allowed to pass on the cost to customers, AT&T said. The American Cable Association and NCTA also opposed battery backup power rules.

“Ultimately, a technological transition that eliminates consumers’ option to have a reliable, self-powered phone is a step backward,” Public Knowledge said. Requiring consumers to be responsible for backup power in case of outages “is a vast cultural shift,” Public Knowledge said. “This would be the first time that we ask consumers to take on the responsibility of ensuring their communications line to safety, 911, and loved ones has appropriate power during the most difficult times.” Recent deregulation measures approved by Kentucky and other states (see 1503060073) “only highlights the important role the FCC must play in protecting consumers during the technology transitions,” Public Knowledge said. The National Association of State Utility Consumer Advocates backed a backup power requirement.

On the array of other issues queued up in the wide-ranging rulemaking, AT&T and Verizon argued that more regulations are unnecessary and would deter broadband investment. If anything, providers should be given more certainty that they’ll be able to discontinue legacy technology, Verizon said. As in February’s initial comments (see 1502060032), those pushing for additional requirements argued that the technology transition doesn't negate traditional ideas of consumer protection and competition. Chairman Tom Wheeler and the Democratic majority on the commission made had made that point in issuing the NPRM. Those on both sides of the Communications Act Section 214 debate expect the agency to make some changes in discontinuation rules (see 1503060061). That the rulemaking raised the idea of a backup power requirement was indication the agency may approve some requirement, Public Knowledge Senior Staff Attorney Jodie Griffin told us Tuesday.

A number of groups, including the American Civil Liberties Union, the Benton Foundation, the Center Democracy & Technology and the New America Foundation’s Open Technology Institute, in their joint reply, urged the agency to adopt stronger privacy requirements for E-911 (see 1412160046).

Competitors and incumbents also clashed in a separate but related proceeding over Windstream’s petition for a declaratory ruling that incumbent LECs are still required to provide DS1 and DS3 loops on an unbundled basis even when copper is being replaced by fiber or copper with fiber or if the means of transmission is being changed from TDM to IP. Replies were also due Monday night.

Verizon opposed a proposal by Public Knowledge and other groups in the IP transition rulemaking to require that certain criteria, including call reliability, be met before granting discontinuation applications. In areas where it has deployed an all-fiber network, the requirement to maintain copper facilities -- “even if there are no customers using those facilities” -- costs Verizon $200 million in maintenance, local property taxes and other costs, said the telco. It said decisions to deploy fiber were made under the assumption the company could retire costly legacy networks. New policies that reduce the likelihood of being able to retire the networks will create more risk in deploying all-fiber networks and reduce incentives to invest in fiber, Verizon said. That would run counter to the National Broadband plan, the company said. Switching from copper to fiber should also trigger the network change process, not Section 214 discontinuation, Verizon said. Creating the “checklist” of criteria would turn Section 214 into "an impassable obstacle on the path to replacing outdated legacy services with next-generation technology,” AT&T said.

On the rulemaking’s tentative conclusion to require equivalent wholesale services, Windstream's reply noted that when large incumbents sought forbearance from tariffing and price regulation for IP special access services, including ethernet, they noted that competitors could continue to use tariffed TDM DS1 and DS3 special access services and unbundled network elements for last-mile access. Competitors rely on DS1 and DS3 special access services and loop facilities to reach their customers, but incumbents now want to stop offering DS1 and DS3 inputs while retaining the forbearance, said the telco. “This bait and switch would leave the ILECs in the position of deregulated monopolists for service to the vast majority of business locations. In the post-transition marketplace that the large ILECs envision, they would have an unfettered ability to raise the prices of both wholesale and retail last-mile connections far beyond what is paid today." XO also backed changing wholesale rules. CenturyLink opposed them.

Incumbents and competitors argued over the impact of competition. No further regulations are needed, said Verizon, which argued that the market will take care of any issues. The DS1 and DS3 and ethernet special access markets are highly competitive, the company said, noting the Level 3 passed Verizon as the second largest ethernet provider. The rulemaking offers a choice between a policy that tries to “accelerate innovation and a policy that saddles consumers with the costs of sheltering companies that seek to delay the technology transition unless they are permitted to free-ride on incumbents’ investment,” AT&T said. Comptel argued competition exists only because of strong regulation, and will dissipate without the proposed policies.