Before the Federal Communications Commission Washington, D.C REPLY COMMENTS OF RCN TELECOM SERVICES, LLC

Transcription

1 Before the Federal Communications Commission Washington, D.C In the Matter of ) ) Rural Call Completion ) WC Docket No REPLY COMMENTS OF RCN TELECOM SERVICES, LLC Joseph Kahl Sr. Director, Regulatory and External Affairs RCN Telecom Services, LLC 650 College Road East, Suite 3100 Princeton, NJ, Ph: (609) joseph.kahl@rcn.net James C. Falvey, Esq. Justin L. Faulb, Esq. Eckert Seamans Cherin & Mellott, LLC 1717 Pennsylvania Ave., N.W. 12 th Floor Washington, D.C Ph: (202) jfalvey@eckertseamans.com Counsel for RCN Telecom Services, LLC June 11, 2013

2 Before the Federal Communications Commission Washington, D.C In the Matter of ) ) Rural Call Completion ) WC Docket No REPLY COMMENTS OF RCN TELECOM SERVICES, LLC RCN Telecom Services, LLC ( RCN ) 1 respectfully submits these Reply Comments in reply to the various comments filed on May 13, 2013 responding to the Commission s request for comment in the Notice of Proposed Rulemaking released by the Commission on February 7, 2013 ( Rural Call Completion NPRM ) to address industry problems with rural call completion. 2 RCN applauds the Commission for its continuing efforts to address problems relating to rural call completion. RCN agrees with those commenters that have urged the Commission to adopt only the most targeted measures proposed in the Rural Call Completion NPRM and to defer more burdensome measures, such as facilities-based originating long-distance services provider reporting requirements, until it determines: 1) whether its other ongoing efforts to improve rural call completion performance will be successful; and 2) whether such broad reporting requirements would prove to be an effective tool to improve rural call completion performance. 1 RCN provides competitive video, broadband, and telephone services in Massachusetts, New York, Pennsylvania, Illinois, Washington, DC, Maryland, and Virginia. RCN provides consumers with an alternative to the dominant cable and phone companies for video, broadband Internet, and telephone service. 2 In the Matter of Rural Call Completion, Notice of Proposed Rulemaking, WC Docket No (Feb. 7, 2013). The Commission extended the date for Reply Comments, initially due on May 28, 2013, to June 11, In the Matter of Rural Call Completion, Order, WC Docket No (May 22, 2013).

3 I. THE COMMISSION SHOULD ADOPT TARGETED MEASURES TO ADDRESS RURAL CALL COMPLETION A. The Commission Has Identified the Cause of Many Rural Call Completion Problems As many commenters have highlighted, the Commission has consistently identified the source of rural call completion problems as emanating from intermediate providers: Some of these intermediate providers offering wholesale call delivery services may be failing to deliver a significant number of calls to rural telephone company customers The Commission has also recognized that trade associations representing rural carriers, among the most concerned about the problem, also attribute it to issues with intermediate providers: Rural associations suggest that... many of these call routing and termination problems can be attributed to intermediate providers. 4 Several commenters agreed with the Commission and rural carriers that intermediate carriers represent a significant part of the rural call completion problem. The National Association of Regulatory Utility Commissioners ( NARUC ) likewise attributed the problems to intermediate carriers: One cause of call failure in the NPRM is the industry s widespread process of using an intermediate provider... to somehow bypass higher rates to complete calls Common sense dictates that if the Commission has identified the source of many rural call completion problems to be services provided by intermediate providers, 6 then the 3 Rural Call Completion NPRM, at 1. 4 Id., at 6. 5 Comments of the National Association of Regulatory Utility Commissioners ( NARUC Comments ), at 5. 6 The Rural Call Completion NPRM correctly notes that rural call completion issues are caused by [s]ome of these intermediate providers. Rural Call Completion NPRM, at 1. The Commission is 2

4 Commission s solutions should be focused on intermediate providers, and targeted towards eliminating the worst practices of bad actor intermediate providers. As Sprint commented, the Commission should take targeted actions to remedy identified unreasonable practices by any identified bad actors rather than imposing onerous data retention and reporting obligations on originating carriers as a whole. 7 RCN supports those Commission remedies that target such practices and keep the focus on those providers that are causing the problems. RCN files these reply comments to register its opposition to the Commission s proposed reporting requirements, imposed upon what is essentially a new category of providers, facilities-based originating longdistance voice service providers. 8 These reporting requirements cast a broad net and lose the necessary focus, which should be on worst practices and bad actor intermediate providers that are causing the problem in the first instance. Applying burdensome reporting requirements on a class of providers that are not the primary cause of the problems at issue is not only unfair to those providers, but is also unlikely to solve the problem at hand. B. RCN Supports Targeted Solutions, Including the Commission s Proposed Ring Signaling Integrity Requirements RCN, like most other commenters, fully supports the immediate implementation of the Commission s ring signaling requirements, which are precisely the kind of targeted solution the Commission needs to implement to eliminate worst practices across the industry. The Commission has proposed a new rule that would prohibit both originating providers and intermediate providers from causing audible ringing to be sent to the caller before the careful to recognize the value of high quality intermediate providers, and RCN agrees that many intermediate providers provide valuable and high quality call completion services. 7 Comments of Sprint Nextel Corporation ( Sprint Nextel Comments ), at Rural Call Completion NPRM, at 13. 3

5 terminating provider has signaled that the called party is being alerted. 9 The Commission s proposal is consistent with past industry practice and, most importantly, will improve the ability to identify the provider responsible for service failures, without imposing unduly burdensome costs. 10 The Commission s ring signaling requirements received support from a wide variety of commenters, ranging from HyperCube to NARUC. 11 Because the ring signaling requirements represent a proposal targeted at a particular bad practice, RCN agrees with those commenters that have recommended its immediate adoption by the Commission. C. The Commission Should Continue to Implement Its Current Policies and Encourage Industry Solutions Before Instituting Undue Regulation Companies from across the industry recommended that the Commission has already charted a course to improving rural call completion, and that the Commission should let ongoing Commission and industry efforts run their course before implementing significant new reporting requirements on providers that are not even the source of the problem. RCN agrees with these commenters and urges the Commission to review progress on rural call completion on an annual basis. If ongoing measures prove to be ineffective, only then should the Commission consider additional measures to improve rural call completion performance. Even then, the Commission should be focused on worst practices and bad actors, and not on broad reporting requirements of questionable utility. Many commenters emphasized the series of ongoing corrective measures taken by the Id., at 41. Id. (emphasis added). Comments of HyperCube Telecom, LLC ( HyperCube Comments ), at 5; NARUC Comments, at 4

6 Commission to rectify rural call completion and related problems. RCN will not provide a detailed description of the full list of the Commission s actions here, but they include: 1) the direct and deterrent effect of recent high-profile enforcement actions; 2) the Wireline Competition Bureau s February 2012 declaratory ruling declaring that routing practices that impair service to rural areas may constitute unjust and unreasonable practices; 3) new rules in the Connect America Fund Order addressing phantom traffic; 4) the Connect America Fund Order transition to reduce access rates; 5) the Connect America Fund Order prohibition on interconnected VoIP provider call blocking; 6) streamlined complaint processes for both consumers and carriers; and 7) Commission coordination with state commissions to improve rural call completion performance. 12 In addition, the industry, in part at the Commission s request, has undertaken a further series of actions to attempt to improve rural call completion performance. Many carriers have pointed to the handbook published by ATIS, 13 addressing the issue of rural call completion in detail, as a prime example of effective industry self-regulation. 14 RCN submits, consistent with the comments of many carriers, that the Commission should let this wide-ranging series of actions take full effect before implementing expansive and expensive new reporting requirements, particularly where these requirements will fall most heavily on many carriers that are not the cause of rural call completion problems. Several Commission solutions were only recently implemented, such as the Commission s most highprofile enforcement efforts. Several commenters noted that we have yet to see intrastate access 12 See, e.g., Comments of Time Warner Cable Inc. ( Time Warner Comments ), at 5-7; Sprint Nextel Comments, at 22-23; Comments of Frontier Communications Corp. ( Frontier Comments ), at Alliance for Telecommunications Industry Solutions, Intercarrier Call Completion/Call Termination Handbook, ATIS (2012). 14 See, e.g., Comments of Cbeyond, Earthlink, Integra and tw telecom ( Comments of Cbeyond et al. ), at 4; Time Warner Comments, at 6. 5

7 rates reach the level of interstate access rates, and it remains to be seen how that will impact rural call completion. 15 The Commission should let these solutions percolate through the industry, continue its current campaign against the worst offenders, implement the ring signaling rules, and look for additional targeted tools to address this issue. If the problem persists a year from now, the Commission can then consider whether reporting requirements will assist in resolving these issues. II. THE COMMISSION SHOULD NOT ADOPT BROAD REPORTING REQUIREMENTS AT THIS TIME The Commission, by targeting the wrong class of carriers and considering extensive reporting requirements, is attempting to kill a gnat with a blunderbuss. The Commission has much more targeted tools at its disposal and should not resort to exhaustive reporting that, in some cases, could require reporting by competitive local exchange carriers, such as RCN. Again, a diverse variety of carriers filed comments urging the Commission not to adopt new reporting requirements at this time. Incumbents (e.g., Frontier), cable providers (e.g., Time Warner Cable), long distance and wireless providers (e.g., Sprint Nextel), and CLECs (e.g., Bandwidth.com, HyperCube, CBeyond, Earthlink, Integra, and tw telecom) have all spoken with one voice that the reporting requirements proposed by the Commission are not the best way to address rural call completion problems. 16 RCN has already noted that it would not be advisable 15 See Frontier Comments, at 3 ( Frontier believes that the Commission should avoid adopting any new regulations until the Commission analyzes the effect that harmonizing interstate and intrastate terminating access rates has on rural call completion issues. ); see also Time Warner Comments, at 7 ( much of the evidence of rural call completion problems cited in the NPRM which, again, pertains primarily to intermediate and long-distance carriers rather than originating providers predates the phasedown of intercarrier charges that began in July ). 16 Frontier Comments, at 4; Time Warner Comments, at 5; Sprint Nextel Comments, at 13-22; Comments of Bandwidth.com, Inc. ( Bandwidth Comments ), at 5-9; HyperCube Comments, at 16; 6

8 to adopt the requirements because other measures should be given more time to bear fruit and because they target providers that are not responsible for causing the problems. Notably, almost all smaller carriers with more limited resources are opposed to the requirements. There is a consensus among most carriers, and particularly small to mid-sized carriers, that the proposed rules would require them to implement expensive new systems, license new software and hire new personnel. Investment in new measurement and storage capabilities is particularly wasteful because, as the Commission has itself recognized, these rules may only be needed on a temporary basis. 17 In light of the temporary nature of the problem, the Commission should continue to take measures that do not require investment in expensive new systems, software, and personnel. Several commenters have raised the fact that they will need to invest in expensive new systems in order to meet the Commission s proposed requirements. Again, all different types of carriers from HypberCube to Frontier to Sprint 18 notified the Commission that they would be required to invest significant amounts in new platforms, software, and systems to be able to meet the Commission s reporting requirements. All impacted carriers would incur significant new expenses on software and outside consultants just to implement the measurement and storage systems to meet the Commission s reporting requirements. In addition, carriers would incur ongoing expenses to maintain the systems and internal costs to continue the reporting. As others have noted, the Commission has not clarified how it will utilize the reports to Comments of Cbeyond et al., at Rural Call Completion NPRM, at HyperCube Comments, at 14; Frontier Comments, at 4 (requirements will require substantial investments to achieve ); Sprint Nextel Comments, at 18 ($550,000 per month to deploy and maintain necessary systems). 7

9 address rural call completion problems. 19 Until less burdensome and more targeted solutions have been given a chance to take full effect, the Commission should defer action on its proposed reporting requirements. III. IF THE COMMISSION ADOPTS REPORTING REQUIREMENTS, THEY SHOULD BE NARROWLY TAILORED AND CAREFULLY TARGETED The Commission has recognized the need to minimize the burden of compliance on carriers who might ultimately have to file reports but who are not causing the problem in the first instance: We also seek comment on how to minimize the burden of compliance with these proposed rules, particularly for originating providers whose call-routing practices do not appear to cause significant call-completion problems. 20 If the Commission does not simplify its reporting requirements, a number of commenters have raised definitional issues. Some objected to the exclusion of wholesale providers from the new term facilities-based originating long distance voice service provider. 21 Others noted that the definition of rural versus nonrural OCNs is not sufficiently clear within the industry and further guidance would be required. 22 More than one commenter raised concerns that, where multiple intermediate providers are engaged, it may be impossible for an originating provider to track call completion. 23 And the record reflects many more such issues. These are not minor complaints around the edges but serious questions that are likely to be both difficult and timeconsuming for the Commission to answer in a manner that will produce consistent and meaningful rural call completion statistics HyperCube Comments, at 12. Rural Call Completion NPRM, at 3. Comments of Cbeyond et al., at 3. HyperCube Comments, at 14. Comments of Cbeyond et al., at 4; Bandwidth Comments, at 7. 8

10 As a carrier that falls into the Commission s classification of one not causing problems through its call-routing practices, RCN urges the Commission to address an additional definitional issue if it continues down this path. Many originating local exchange carriers aggregate traffic from several switches before initially handing it off to their primary longdistance voice services provider. In some cases, in the process of aggregating the traffic, the originating LEC will carry traffic across exchange or LATA boundaries (e.g., traffic from New York and Pennsylvania is aggregated in New York City). Technically, the LEC would be the first facilities-based originating long-distance voice services provider... in the call-delivery chain, 24 yet the LEC is not the carrier the Commission would normally expect to be reporting. The reporting carrier should be the provider to which the originating LEC first hands off its calls for long-distance carriage. This carrier would, as the Commission anticipated, have the inaugural call detail that the Commission is apparently seeking. 25 If the Commission continues to consider adopting reporting requirements, it should revise its definitions accordingly or provide an exclusion or safe harbor for LECs that initially aggregate their traffic and only incidentally carry traffic across exchange or LATA boundaries. 26 RCN submits, however, that the Commission will have its work cut out for it to adopt a series of definitions that will accommodate the complex traffic routing that is becoming 24 Rural Call Completion NPRM, at 17. The Commission s definition of long distance voice service includes interstate inter-lata, intrastate inter-lata, interstate interexchange, [and] intrastate interexchange... voice services. Id., App. A, Proposed Rule 47 C.F.R (f). As such, any originating LEC that carries a call across exchange boundaries before handing it off to its long-distance service provider would technically qualify as the first facilities-based originating long-distance voice services provider. 25 Id., at If the Commission does not adopt such an exception, it should at least provide for a waiver process to permit carriers with such exceptional circumstances to obtain a waiver from the Commission s rules. 9

11 commonplace in the industry today, and should instead eschew complex reporting requirements for more direct and targeted solutions. Respectfully Submitted, Joseph Kahl Sr. Director, Regulatory and External Affairs RCN Telecom Services, LLC 650 College Road East, Suite 3100 Princeton, NJ, Ph: (609) /s/ James C. Falvey James C. Falvey, Esq. Justin L. Faulb, Esq. Eckert Seamans Cherin & Mellott, LLC 1717 Pennsylvania Ave., N.W. 12 th Floor Washington, D.C Ph: (202) Counsel for RCN Telecom Services, LLC June 11,