One of the goals of the FCC is to establish clear standards to streamline the transition to an all-Internet protocol (IP) environment. That is why in the Technology Transitions Order it initiated a Further Notice of Proposed Rulemaking (FNPRM) to develop the long-term requirements ILECs need to fulfill to receive permission to discontinue a Time Division Multiplexed (TDM) service such as DS1 in favor of an IP service such as Ethernet. Commission permission for discontinuing a service is required by section 214 of the Telecommunications Act.

To move the argument along, the Commission helpfully provided its own suggested requirements, stating that:

A carrier seeking to discontinue an existing retail service in favor of a retail service based on a newer technology must demonstrate that any substitute service offered by the carrier or alternative services available from other providers in the affected service area meet the following criteria in order for the section 214 application to be eligible for an automatic grant:

1. Network capacity and reliability;
2. Service quality;
3. Device and service interoperability, including interoperability with vital third-party services (through existing or new devices);
4. Service for individuals with disabilities, including compatibility with assistive technologies;
5. PSAP and 9-1-1 service;
6. Cyber-security;
7. Service functionality; and
8. Coverage

Industry comments regarding the Commission’s proposals were recently filed on October 26^th, and, as expected, ILECs were unified in their opposition to the Commission’s proposals.  CenturyLink’s comments are illustrative of the ILEC concerns. 

CenturyLink first notes that, in large numbers, consumers are already substituting retail IP services such as interconnected VoIP in place of traditional POTS (plain old telephone service). It asserts that the Commission has come to a similar conclusion with regard to facilities-based VoIP in a series of merger and forbearance orders. More recently, in the Connect America Fund (CAF) proceeding, the Commission stated that both interconnected VoIP and fixed wireless service meet its standards for voice telephony service. Thus CenturyLink concludes that:

Given these marketplace and regulatory developments, if any one of these services (or another provider’s TDM voice service) is available in an area where a carrier seeks to discontinue wireline TDM voice service, there is no need for the fact-intensive inquiry proposed in the FNPRM. Instead, the Commission should establish a rebuttable presumption that each of these services—interconnected VoIP, 3G/4G wireless, “CAF-qualifying” fixed wireless service, and TDM voice service—is a reasonable substitute for traditional telephone service. The Commission should thus amend…its rules to specify that if an ILEC (or, for that matter, any carrier) seeking to discontinue TDM voice service in a given area certifies that all affected retail customers will have access to one or more of these services, either from the discontinuing carrier or at least one other provider, its application will be reviewed under…[the] streamlined processes. This approach would provide the certainty needed for ILECs and other providers to plan their transitions to IP services, while allowing the Commission to consider any unique issues raised by commenters in a discontinuance proceeding (Comments of CenturyLink, Docket 13-5, filed October. 26, 2015, at pp 2-3).

In its comments, Verizon adds that since the Commission is mainly worried that any service discontinuance would affect consumers ability to make and receive voice calls and especially 911 calls, it should modify the suggested requirements to account for the fact that some service discontinuances do not involve voice or because customers themselves have already abandoned the TDM service in favor of other services.

Moreover, Verizon notes that, sometimes a provider may have no control over the decision to discontinue a service:

When a service relies on the use of a particular piece of equipment or an input that a vendor is discontinuing, for example, the provider often cannot continue providing that service and must discontinue it even if there are customers still using it (Comments of Verizon, Docket 13-5, filed October 26, 2015 at p. 3).

Thus, Verizon suggests that the Commission should adopt a safe harbor test that would provide carriers a bright line to take advantage of when the proposed service discontinuance does not involve the issues that concern it.  The Commission would grant automatically discontinuances that fall within this category, following appropriate notice to customers and a notification period.

Under the proposed appropriate “safe harbor” test, the Commission should automatically grant a 214 discontinuance if both:

1. Discontinuing the service will not terminate the end user’s ability to call 9-1-1; and

2. One or more of the following conditions are met:

1. Fewer than 5% of customers in the affected geographic area subscribe to the service; 

1. The service is not used as a wholesale input by other providers;

1. There is another provider that offers substantially the same service in the same area;

1. There has been no new orders for the service during the past 6 months;

1. The service relies on vendor equipment or inputs that have been discontinued; or

1. The service is at or below 64 Kbps or functions in the analog bandwidth at or below 20000 Hz (Id. at 4)

Providers filing under this safe harbor provisions would be exempt from the detailed criteria and certification contemplated in the FNPRM.

Almost no CLECs filed their own comments about the Commission’s proposals, suggesting that they are generally supportive of the proposed fact-based intensive evaluation of all service discontinuance applications. Look for them to respond to the ILEC proposals in their reply comments.

By Andy Regitsky, CCMI