Intervenors Defend FCC VoIP Symmetry Order Against AT&T Legal Challenge
Three intervenors opposed AT&T’s challenge to an FCC VoIP symmetry decision that allowed CLECs partnering with over-the-top VoIP providers to collect end-office switching charges from interexchange carriers (IXCs) for connecting long-distance calls to customers. Bandwidth.com, Broadvox-CLEC and Level 3 said…
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AT&T, which is both an IXC and an ILEC, “misconstrued” FCC actions in arguing the agency had unlawfully “amended” the 2011 VoIP symmetry rule without notice-and-comment by “radically” altering its application of a “functional equivalence” standard for determining end-office switching (see 1507310057). The agency appropriately clarified the rule to say CLECs (or other LECs) and OTT VoIP partners provide the functional equivalent of end-office switching even if they don’t provide the physical connections between subscriber lines and trunk lines, the competitors argued in their brief Monday to the U.S. Court of Appeals for the D.C. Circuit (the case is AT&T v. FCC, No. 15-1059). AT&T had argued CLECs partnering with OTT VoIP providers, unlike facilities-based VoIP providers such as cable companies, didn't provide the functional equivalent of end-office switching and therefore should collect lower charges. But the commission found CLECs in either case provided “call control” functions, the intervenors said. “In other words, local switching provides the ‘brains’ in the legacy telephone network that directs a call to the proper phone number and subsequently ends the call when the parties hang up,” they said. “A LEC partnering with a VoIP provider -- whether over-the-top or facilities based -- does the same thing.” The intervenors also disputed AT&T’s argument for prospective-only application of the agency decision. AT&T’s argument against retroactivity was based on an “incorrect assumption” that the agency had substituted “new law for old law that was reasonably clear,” they said, citing a court precedent. But the commission simply clarified its rule, and AT&T failed to even note the court’s "default" ruling that such adjudicatory actions generally are given retroactive effect, they said. The commission recently filed its brief defending the order (see 1510060033).