Vonage Counters NARUC, NTCA on VoIP Numbering Without Title II
Vonage offered the FCC 11th-hour legal backing for giving VoIP providers direct access to phone numbers without classifying interconnected VoIP as a Title II telecom service under the Communications Act, despite NARUC and NTCA arguments to the contrary. Meanwhile, Level 3 pushed back against, and Verizon basically endorsed, AT&T arguments that the FCC shouldn't adopt Level 3's proposals to ensure that competitive LECs can collect local switching charges when partnering with VoIP providers that gain direct access to phone numbers.
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The FCC doesn't believe VoIP classification is necessary to give VoIP providers direct access to numbers, a commission official told us Monday, noting the Vonage filing, when asked about authority. The official had no comment on the Level 3 dispute with AT&T and Verizon.
With a vote on a VoIP numbering draft order expected Thursday, Vonage responded Friday to NARUC and NTCA arguments that the agency couldn't authorize VoIP providers to have direct numbering access unless it classified interconnected VoIP as a Title II telecom service (see 1506120013). "Section 251(e) grants the Commission plenary authority over numbering rights, and the Commission has successfully relied on this provision to adopt number porting, [local number portability] contribution, and [North American Number Plan Administration] contribution obligations for interconnected VoIP providers," Vonage said in an ex parte filing in docket 13-97. "Just as the Commission had authority to take these steps, it has authority to grant interconnected VoIP providers direct access to numbering resources." Vonage said the post-sunshine filing (coming after Thursday's meeting agenda was formally released Thursday) was permitted as a reply to the NARUC and NTCA filings.
Vonage said that because the FCC had Section 251(e) authority, a 2014 Verizon v. FCC net neutrality ruling by the U.S. Court of Appeals for the D.C. Circuit cited by NARUC and NTCA doesn't apply in this case: "NARUC and NTCA’s arguments that a grant of numbering rights by the Commission amounts to reliance on 'general authority ... to impose obligations that are inconsistent with more specific statutory authority' ignore the Commission’s specific and settled authority to impose numbering obligations on interconnected VoIP providers, as well as its 'well-established power ... to interpret ambiguous provisions in the statutes it administers." Vonage also urged the FCC to reject NARUC and NTCA's "transparent effort to delay access by insisting that the Commission must answer yet more (unspecified) questions before it can act."
Responding to an inquiry from FCC staff, Level 3 explained why it believed the commission provided sufficient notice under the Administrative Procedure Act (APA) to adopt the company's proposals to uphold CLEC access charge collection under VoIP direct numbering access. In another post-sunshine ex parte filing, Level 3 said its proposals satisfied a "well-established" D.C. Circuit APA standard that permitted regulatory adoption of proposals that were a "logical outgrowth" of initial agency notices. Level 3 said the FCC had asked commenters to suggest how the commission should "address any new ambiguities in intercarrier compensation payment obligations" raised by the proposal to create VoIP direct numbering access, and Level 3 said its proposals address that question.
Level 3 also disputed AT&T's contention that Level 3 was acting as "gatekeeper" on VoIP calls. "Level 3 is no more of a gatekeeper on the VoIP user's end of the call than AT&T is on its end of the call," but Level 3 said that's not the relevant issue. "The issue is whether AT&T should be allowed to charge for a call to its end user while the LEC on the other end of that call is precluded from charging for that call to the VoIP end user solely because the number is now assigned directly to the VoIP provider rather than indirectly through its partner LEC, with no other change in the functions performed," Level 3 said.
Responding to Level 3, an AT&T spokesman told us Monday that the Level 3 proposals "appear to have been raised for the first time a couple days before sunshine." The spokesman also disputed the notion that AT&T played a similar gatekeeper function, saying most AT&T traffic is wireless "for which it cannot impose access charges."
Verizon weighed in on AT&T's side, urging the FCC not to act on Level 3's proposals. Verizon objected to Level 3’s "last-minute proposals" on procedural grounds and said it should file a petition for rulemaking. In addition, the Level 3 proposals seek a "far-reaching expansion" of a recent VoIP symmetry rule, Verizon said in a filing on a meeting it had at the FCC Wednesday. "In place of the existing language that limits application of the VoIP symmetry rule to when 'the CLEC is listed in the data base of the Number Portability Administration Center (NPAC) as providing the calling party or dialed number,' Level 3 proposes to apply the rule if either the CLEC or a VoIP provider is listed in the NPAC database as owning the calling party or dialed number," Verizon said. The telco said the proposals would increase the potential for arbitrage, discourage IP-to-IP interconnection and "encourage unnecessarily retaining TDM-based CLECs like Level 3 in the call flow in order to continue generating end-office-switching access charges."
Verizon also urged the FCC to issue a Further NPRM to look at cost-allocation rules for numbering administration, portability and pooling, suggesting the current revenue-based allocation method was outdated. Referring the issue to the North American Numbering Council for consideration "would unnecessarily delay final action," Verizon said, but if the FCC did that, it should direct NANC to present alternatives, with no recommendations, within six months.