Broadband Law Advisor Blog : Broadband Lawyers & Attorneys : Davis Wright Tremaine Law Firm : National Broadband Plan Adoption & Infrastructure Updates

UPDATE: The FCC has released its order and notice of proposed rulemaking regarding the issues discussed below.  Note also that the Commission has also requested comment on whether to revise the definition of "interconnected VoIP" to include calls made over any "Internet connection" (thus capturing VoIP calls over dial-up) and/or calls that connect to domestic telephone numbers (US E.164 numbers) rather than just the PSTN, which would cover calls made entirely over an IP-network.  The Notice of Proposed Rulemaking, Third Report and Order and Second Further Notice of Proposed Rulemaking (FCC 11-107) is available for your reading pleasure here.

At this morning's Open Meeting, the FCC adopted a notice of proposed rulemaking seeking comment on whether to extend E911 rules for two-way interconnected VoIP providers to outbound-only interconnected VoIP services.  If adopted, many one-way VoIP services that have thus far avoided FCC "regulation" may soon be subject to federal E911 obligations.  And like all things regulatory, this could possibly open the door to additional regulatory obligations that have already eroded somewhat the concept that VoIP is an unregulated IP service, obligations such as CALEA, accessibility/disability, local number portability, and FCC discontinuance notice requirements.  Indeed, the FCC is already poised to release its final rules to extend new accessibility/disability rules, including FCC registration and TRS funding/reporting, on one-way interconnected VoIP services pursuant to the 21st Century Communications and Video Accessibility Act that was signed into law last October, which we discussed in detail here.

The rulemaking also seeks comment on how to improving automatic location information for VoIP 911 calls and other location-based technologies. The FCC also adopted a report and order revising location accuracy rules for wireless carriers.

At this time, the report and order and the proposed rulemaking have not yet been released.  For the time being,  additional information can be gleaned from the FCC's news release, available here.

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The FCC's Notice of Proposed Rulemaking to extend outage reporting requirements, currently imposed on legacy circuit-switched telephone and paging services, to interconnected VoIP providers and broadband ISPs, was published today in the Federal Register, thus setting the comment period for this proceeding, but more importantly, establishing yet another attempt to regulate Internet networks through the Commission's ancillary jurisdiction.

The FCC found that these outage reports have led to improvements in the engineering, provisioning, and deployment of telecommunications infrastructure and services. By extending the reporting obligation to interconnected VoIP providers and ISPs, the FCC hopes that such reports will similarly help to track and analyze information on outages affecting broadband networks, and help determine the extent of nationwide problems and recurring issues, among other things.

The FCC concedes that extending the outage reporting requirements would impose an additional burden on interconnected VoIP providers and ISPs, but concluded that because these providers already collect outage information for internal use, providing the same information to the FCC on a confidential basis would have a minimal burden.

Not surprisingly, the FCC seeks comment on its authority to extend the outage reporting rules to interconnected VoIP or broadband ISPs. Specifically, the FCC relies on interconnected VoIP providers' statutory duty to provide E911 service as the basis for arguing that outage information is "reasonably ancillary" to the VoIP 911 mandate. And because interconnected VoIP "by definition" depends on broadband networks, the FCC found that extending the reporting requirements to broadband ISPs was also "reasonably ancillary" to a VoIP providers' E911 obligations. It remains to be seen whether the FCC's indirect association between outage information and E911 will hold water, which may in turn depend in part on how hard VoIP providers and ISPs push back against the FCC's proposal.

Comments are due August 8, 2011, and reply comments are due October 7, 2011. For more information about the FCC's outage reporting rules and how they may impact VoIP and broadband companies, please contact Michael Sloan or Brian Hurh.
 

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