VoIP 911 Fees, Effective Competition, CAF Broadband Performance Test Drafts Issued

The VoIP draft declaratory ruling says states are free to assess VoIP 911 fees on a per-telephone-number basis. But "if the billing framework results in a VoIP subscriber paying a higher total 911 fee than a traditional telecommunications service subscriber for the same outbound 911 calling capability, that framework would violate the VoIP Fee Parity Provision."

The ruling responds to litigation between AT&T's BellSouth and Alabama 911 districts (see 1909110027). The draft notes the parties "have not yet completed discovery." The record suggests subscribers to both types of phone services use "the same 23 channel outbound capability to simultaneously call 911," the FCC says. "If so, then the total 911 fee or charge collected from a business subscriber to that service should be no higher if it is determined by the District Court to be a VoIP service than if it is determined to be a traditional telecommunications service." It says VoIP calls don't make them more burdensome to the 911 system.

AT&T's TV Now -- formerly DirecTV Now -- passes the "LEC Test" by being offered by an LEC affiliate over broadband facilities in parts of Massachusetts and Hawaii and is comparable to Charter Communications' cable TV service, so it's effective competition in those communities to Charter, says the proposed order. The agency dismisses arguments it didn't meet requirements, saying the video service doesn't need to be a LEC itself, just affiliated with one (like AT&T). Most previous test decisions involved a LEC providing video programming services over its own facilities, but TV Now doesn't need to use that to satisfy the test, it says: Just because broadband is a separate cost for consumers doesn't mean AT&T TV Now is outside the test parameters. It rejects Massachusetts requests for discovery or referral to an administrative law judge.

The draft "recognizes the tremendous change across the video marketplace," Charter said: "With cable, satellite, over the-air, platforms like YouTube, streaming apps from AT&T, Netflix, Hulu, Disney, Apple and many others, consumers more than ever have choices for where, when and how they watch video. If adopted, with this finding of effective competition, the FCC will allow competition and market forces, unburdened by decades-old regulations, to drive innovation so that Charter’s customers continue to receive the information and entertainment they want and need to succeed in today’s hyper-connected world."

America's Communications Association said the draft "reaches a legal conclusion that catches up with what consumers already understand -- online streaming services like AT&T NOW are a source of ‘effective competition’ for cable operators’ traditional video offerings.” The Massachusetts Department of Telecommunications and Cable didn't comment. Hawaii counsel Bruce Olcott of Jones Day said the draft was being reviewed and a decision hadn't been made whether to lobby for changes.

Rebanding, ATSC 3.0

The 800 MHz rebanding order is aimed at cutting red tape, a major Pai theme. Another item has implications for TV stations moving to ATSC 3.0.

The draft would streamline the process by which relocated licensees certify rebanding of their systems is complete. The order would “accelerate the dispute resolution process invoked in cases where Sprint and the relocated licensee are unable to agree on closing terms and conditions.” A Further NPRM explores other changes, including getting rid of a requirement the 800 MHz transition administrator conduct an annual audit of rebanding expenditures. Commissioners approved a plan to reconfigure the 800 MHz band in 2004, which separated public safety radio systems primarily from what was then Nextel’s iDEN network. Nextel later combined with Sprint. Now, T-Mobile is buying Sprint.

“The rebanding process has taken substantially longer than originally contemplated. Nevertheless, rebanding has substantially alleviated the interference risk to public safety, and the process is now nearing completion,” the draft says: “The 800 MHz Transition Administrator reports that 2,088 licensees have successfully completed physical reconfiguration of their systems, and that only 19 licensees, all in the Mexican border region, have yet to complete physical reconfiguration.”

The antenna siting draft NPRM is October's media modernization item. The draft and accompanying fact sheet say the rules in question prohibit granting an FM or TV license if the applicant controls a uniquely situated antenna site. “We are aware of no instance where a license application or license renewal application was denied on the basis of a violation of these rules,” says the NPRM. It appears no one seeking to use the rules -- created in 1945 -- in a dispute over tower access has successfully established a violation of the rules, the draft says.

Since tower companies rather than broadcasters own most antenna sites, and the number of antennas and stations has vastly increased since 1945, the rules may no longer be relevant, the item says. Along with seeking comment on removal, it seeks information about whether the rules could be more relevant as the transition to ATSC 3.0 proceeds. “Are there impending changes to the broadcast industry, including the transition to ATSC 3.0 and the importance of distributed transmission system (DTS) single frequency networks (SFN) to ATSC 3.0 that will increase demand for antenna sites?” Broadcast attorneys said the rules are so seldom invoked that little controversy about the draft NPRM is expected. Separately Friday, a broadcaster request on 3.0 SFN was posted (see 1910040038).

CAF Tests

The CAF broadband performance order is trying to balance accountability to taxpayers, consumers and the FCC while reviewing testing methodologies to ensure "the approach is flexible enough for carriers of any size to comply with the testing rules without unnecessary costs and burdens," the Wireline Bureau says in the draft. The bureau issued a performance measures order on broadband speed and latency in July 2018 for recipients of CAF and CAF II USF support (see 1807060031). Since then, providers and associations petitioned for reconsideration.

The draft tries to address them by increasing time carriers have to meet performance obligations and minimizing costs associated with compliance. Testing will be timed to better meet circumstances of individual providers, it says. "Pushing back testing will have the added benefit of allowing additional time for the marketplace to further develop solutions for carriers to undertake the required testing." During a new pretesting phase, carriers won't receive support reductions as they report pretest results. Pretesting for CAF-II support recipients would begin July 1.

Once it goes live, a provider's USF support can be reduced as a penalty for poor results. Some industry stakeholders asked for testing over a shorter distance than between a customer premise and an FCC-designated interexchange point (IXP). The draft disagrees. "Measuring the performance of a consumer's connection to an IXP better reflects the performance that a carrier's customers experience," it says. "Testing on only a portion of the network connecting a consumer to the Internet core will not show whether that customer is able to enjoy high-quality real-time applications because it is network performance from the customer's location to the destination that determines the quality of the service." The regulator disagrees with comments that such testing makes carriers responsible for network elements they don't control, "and we reject testing only on a carrier's own network as inadequate." It says even small carriers have some control over the quality of internet transport they buy. Carriers could seek waivers if the only transport available demonstrably degrades measured performance of their network.

The agency agrees it was overly ambiguous in designating certain metropolitan areas as qualifying IXPs. Now it defines an IXP "as any building, facility, or location housing a public Internet gateway that has an active interface to a qualifying" internet autonomous system, regardless of whether that ASN's within the provider's network. Providers may petition to add more ASNs.

The agency won't revisit requirements for testing to occur during evenings and weekends, typical peak usage times, despite concerns it could disrupt normal work hours and create hardships for smaller providers. It notes many of the testing functions are automated. If peak usage hours change over time, the bureau could revisit established testing hours. Frequency of latency tests and sample sizes wouldn't change.

The bureau would explain online the testing procedures and encourage consumers to participate. Companies would need to replace departures from the test and do temporary upgrades if no one in a speed tier participates. The order would clarify tests will be required not only in new subscriber locations.

The bureau plans to update how telecom tariffs are filed and published, per the draft. Changes would reduce burdens on carriers and the agency's review staff, it says. Both got industry support last year after the agency released an NPRM (see 1812210067). Under one rule, carriers would no longer need to seek special FCC permission to cross-reference their own tariffs in electronic filings with those of their affiliates, such as when they offer discount plans that cross different operating territories.

Separately, the regulator would recognize value of its short-form tariff review plan has declined over the years due to a decrease in complexity of interstate access tariff filings as the scope of services subject to price cap regulation narrowed. And because the FCC noticed that waiving the short form tariff review plan requirements didn't hurt those involved with tariff reviews. As a result, the FCC would eliminate the requirement that incumbent price cap LECs submit a short-form tariff review plan 90 days before annual access charge tariff filings become effective.