Although the March agenda is relatively light, the STIR/SHAKEN and access charge items could significantly impact provider costs, tariffing practices, and billing procedures. As a result, providers should closely examine the FCC’s proposals and get their input in early in light of the agency’s recent decision to restrict in-person meetings and expand telework in response to the coronavirus pandemic. You will find more information on the key March meeting items after the break:

Mandating STIR/SHAKEN Framework: The TRACED Act mandates a number of measures designed to combat unlawful robocalls. One of the key measures in the Act is a requirement that all voice providers implement SHAKEN/STIR in IP networks and an alternative call authentication framework in non-IP networks. The draft Report and Order and Further Notice of Proposed Rulemaking responds to these mandates in the Commission’s existing call authentication docket. The draft order would mandate that originating and terminating voice service providers implement the STIR/SHAKEN framework in the IP portions of their networks by June 30, 2021. A carrier’s obligations under the proposal would vary depending on where it is in the call chain. First, a voice service provider that originates a call that exclusively transits its own network would be required to authenticate and verify the caller ID information in accordance with the STIR/SHAKEN framework. Second, a voice service provider originating a call that it will exchange with another provider would be required to authenticate the caller ID information in accordance with the STIR/SHAKEN framework and (unless technically impossible) transmit that information to the next provider in the call path. Finally, a voice service provider terminating a call with caller ID information it receives from another provider would be required to verify that information in accordance with the STIR/SHAKEN framework before delivering the call to an end user. The FCC would estimate carrier STIR/SHAKEN implementation costs to range from $15,000 to $300,000.

In the FNPRM portion of the order, the FCC plans to seek comment on whether it should extend the STIR/SHAKEN implementation deadline for smaller voice service providers (i.e., those with 100,000 or fewer subscriber lines), as well as those operating in rural areas, so long as they adopt a robocall mitigation program. The FCC also plans to ask whether it should expand the STIR/SHAKEN mandate to cover intermediate voice service providers that neither originate nor terminate calls, and require them to pass along any verified caller ID information they receive. In addition, the FCC would request input on requiring voice service providers using legacy time-division multiplexing and other non-IP technologies to either (1) upgrade their networks to IP to enable the implementation of the STIR/SHAKEN framework or (2) develop a non-IP caller ID authentication technology and adopt a robocall mitigation program in the interim. The FCC anticipates adopting procedures to exempt providers from the full STIR/SHAKEN implementation process in exchange for meeting aggressive call authentication deployment milestones. The Commission also would seek comment on implementing the TRACED Act’s prohibition on voice carriers imposing additional line item charges on consumers and small businesses for the costs of implementing caller ID authentication services.

The FNPRM also would address a topic identified in the TRACED Act for further Commission inquiry. The Act requires the Commission to examine measures to bar access to numbering resources by service providers allegedly assisting unlawful spoofing or robocalling operations. The Commission would examine a number of options for doing so, including imposing “know your customer” obligations on RespOrgs and carriers receiving numbering resources and/or imposing U.S. residency requirements for telephone numbers.

The draft order would include an expedited comment period for these questions. Comments on the proposed STIR/SHAKEN reforms would be due by May 15, 2020, with reply comments due by May 29, 2020.

Deregulating End-User Access Charges: The draft Notice of Proposed Rulemaking would eliminate FCC pricing regulation for five access charges currently included in some carrier tariffs: the Subscriber Line Charge, the Access Recovery Charge, the Presubscribed Interexchange Carrier Charge, the Line Port Charge, and the Special Access Surcharge. These charges represent the last handful of interstate end-user charges subject to ex ante price regulation by the agency. The FCC would find that increased competition in the voice service market, including by interconnected VoIP, wireless, and over-the-top providers, ameliorates the need for strict pricing controls for these charges. The Commission would seek comment on completely prohibiting carriers from tariffing the charges or whether alternative approaches are necessary to address areas where competition may be lacking. The FCC also would request input on barring carriers from assessing the charges through separate line items on customer bills. The FCC would find that the current descriptions of the charges vary significantly among carriers and unnecessary complicate customer bills. As many of the charges currently are used in the calculation of high-cost support and universal service contributions, the FCC would ask how it can ease the deregulation transition for carriers to ensure they receive sufficient support without increasing the contribution burden.

Comments on the proposed access charge reforms would be due 30 days after Federal Register publication of the item, with reply comments due 15 days later.

You will find more information on the most significant proposed December meeting items after the break:

998 Crisis Hotline: The draft Notice of Proposed Rulemaking would seek comment on designating 988 as the dialing code for a national suicide and mental health crisis hotline. The proposed rules would require telecommunications carriers and interconnected VoIP service providers (including one-way interconnected VoIP service providers) to transmit all 988 calls to the hotline. If adopted, the proposed rules would give service providers 18 months to complete any necessary equipment upgrades/replacements to enable 988 hotline dialing. The FCC would note that 988 currently is not assigned as an area code and presents fewer hotline implementation issues when compared to other potential three-digit codes. However, the FCC would request input on whether other hotline codes should be considered as well as the costs, timeframe, and technical challenges presented by its proposal.

Unlicensed Use of Mid-Band Spectrum: The draft Notice of Proposed Rulemaking would request input on repurposing the lower 45 megahertz of the 5.850-5.925 GHz band, which currently is reserved for short-range vehicle-related communications, for unlicensed operations like Wi-Fi. The FCC would argue that much of this band has gone unused since it adopted service rules over 20 years ago and that other vehicle-related communications technologies have been deployed in other frequencies in the interim. The FCC also would observe that unlicensed operations already are permitted in adjacent frequency bands and throughout the 5 GHz band, creating potential spectrum harmonization benefits. The proposed rulemaking would reserve the upper 30 megahertz of the band for vehicle-related communications and would ask whether a portion of this band segment should be allocated to newer Cellular Vehicle to Everything (“C-V2X”) operations, which enable a broad range of vehicle safety services over drivers’ mobile broadband networks such as automated driving applications. The item also would ask for comment on transition and protection mechanisms for incumbent operations should the FCC designate certain spectrum for unlicensed and/or C-V2X uses.

Shared Use of Mid-Band Spectrum: The draft Notice of Proposed Rulemaking would propose to remove existing non-federal radiolocation and amateur allocations in the 3.30-3.55 GHz band and relocate such operations to the 3.1-3.3 GHz band or other frequencies. Current non-federal uses in the 3.30-3.55 GHz band include commercial weather tracking operations and numerous temporary authorizations to provide supplemental wireless capacity during sporting events. The band also is used for federal defense radar systems and aeronautical radionavigation services on a primary basis. The proposal implements provisions of the MOBILE NOW Act, which required the FCC to identify spectrum bands for commercial wireless operations to share with federal users. The item would seek comment on the appropriate transition process for non-federal users, transition costs, and protection mechanisms for federal incumbents.

VoIP Symmetry Rule: The draft Order on Remand and Declaratory Ruling would significantly narrow the application of the so-called VoIP Symmetry Rule, which allows carriers that partner with VoIP providers to recover intercarrier switched access charges under certain circumstances. The proposed action comes in response to a 2016 D.C. Circuit remand.

You will find more details on some of the most significant October meeting items after the break:

Measuring CAF Recipients’ Broadband Performance: The draft Order on Reconsideration would modify the uniform testing methodologies for all carriers receiving Connect America Fund (“CAF”) support to use for speed and latency testing established by the Wireline Competition Bureau, Wireless Telecommunications Bureau and Office of Engineering and Technology last year, and provide flexibility based on carrier sizes, networks and technical abilities. The modifications would, for example, align testing dates more closely with build-out obligations and establish a pre-testing period so that carriers can address any issues without penalty before formal testing and reporting begins.

911 Fee Parity: The draft Declaratory Ruling responds to a primary jurisdiction referral from a dispute between 911 districts in Alabama and BellSouth and other telecommunications carriers. The federal NET 911 Act prohibits states from discriminating against interconnected VoIP services by assessing a higher 911 fee than is assessed on traditional telecommunications services. Under Alabama law, local telephone services were assessed per “line” to the network while VoIP services were assessed per telephone number (not per line). The Declaratory Ruling is intended to ensure parity between VoIP services and traditional telecommunications services by clarifying that the NET 911 Act provision applies to the total amount of 911 fees that a subscriber pays for the same 911 outbound calling capability. Thus, even if the per-unit assessment is the same, the state may not impose a larger total fee on VoIP providers.

Tariff Rules Modernization: The draft Report and Order would adopt two uncontroversial changes to the FCC's tariff filing requirements that were the subject of a 2018 Notice of Proposed Rulemaking and Interim Waiver Order released nearly a year ago. Specifically, the Order would allow carriers to cross-reference their tariffs and those of their affiliates, and would remove the requirement that certain carriers file short form tariff review plans 90 days before their annual interstate access charge tariff filings are effective. The requirements have become outdated now that tariffs are submitted and reviewed electronically, and annual access charge filings have diminished in complexity.

With these new requirements, the FCC continues its trend of expanding the availability of emergency services calling to newer technologies. As these new forms of communication become more mainstream – and as they grow as replacements for, rather than complements to, traditional telecommunications services – the FCC has been inclined to make emergency services a “must have” feature of the service. Providers of new communications technologies should carefully review their service offerings to determine how to handle customer attempts to reach emergency services.

Direct 911 Dialing

Kari’s Law is a requirement that multi-line telephone systems provide direct access to 911 dialing, without requiring the dialing of a prefix (such as 9). The law takes its name from an assault and murder of a woman by her estranged husband in 2013. While the woman was being assaulted, her 9-year-old daughter repeatedly tried to dial 911 on the motel room phone, but was unable to reach emergency services because the girl did not know that the motel’s phone system first required the dialing of a “9” to reach an outside line. Kari’s Law attempts to solve this situation by requiring all multi-line telephone systems to allow dialing of 911 without dialing of a prefix before dialing the number.

In the Order, the FCC adopted a rule that restates the Kari’s Law requirement for MLTS system manufacturers and installers to ensure that direct 911 dialing capability is available for systems installed on or after February 16, 2020. Equipment manufacturers, importers or lessors must ensure that their systems are pre-configured so that when properly installed, the systems will be able to dial 911 directly, without dialing an additional digit, code, prefix, etc. Similarly, a person in the business of installing, managing, or operating an MLTS system must configure that system to allow the user to dial 911 without dialing an additional digit, code, prefix, etc.

In addition, Kari’s Law and the Order also requires an installed MLTS system to be configured to provide notification of a 911 call to a central location (or person) at the facility where it the MLTS device is housed, if that configuration is possible without software or hardware change. “MLTS Notification” is defined as a feature “that can send notice to a central location at the facility where the system is installed or to another person or organization regardless of location.” Examples of such a notification can include screen pops with an alarm noise on security desk computers using a client application, text messages, and an email for an administrator. The notification should include (1) the fact that a 911 call has been made, (2) a valid callback number (does not have to be a direct inward dial to the caller’s phone), and (3) the same location information that is conveyed with the call to 911, to the extent technically feasible. The initiation of the notification must be contemporaneous with the call to 911.

Dispatchable Location

In response to Section 506 of the RAY BAUM’S Act, the Order expands the requirement to transmit “dispatchable location” on 911 calls to multi-line systems. Dispatchable location generally means enhanced information about the location of a caller within a building, such as a room number, floor number, or similar information necessary to adequately identify the location of the calling party. The Order adopts requirements to transmit dispatchable location for both MLTS services and interconnected VoIP services.

• MLTS calls. The FCC acknowledged some parties’ concern that the feasibility of providing location information varied within MLTS depending on the type of device and functionality. As a result, the Order imposes different obligations depending upon the type of MLTS call involved.
  • Fixed MLTS – Providing dispatchable location information for 911 calls is readily achievable and thus, fixed providers should provide automatically provide at least a street address (must be validated). This requirement will be effective one year after the effective date of the Order.
  • Non-Fixed MLTS Devices Used On-Premise – These MLTS devices should be able to provide the automated dispatchable location when technically feasible but otherwise providers, may rely on the user to provide or confirm the information manually. Non-fixed, on premise providers also have the option to provide alternative location information (may include coordinate-based information), which should be sufficient to identify a caller’s civic address and approximate in-building location. This requirement will become effective two years after the effective date of the Order.
  • Non-Fixed MLTS Device Used Off-Premise – When a user is off premises during a 911 call, the MLTS operator or manager must provide (1) dispatchable location, if technically feasible, or, otherwise, either (2) manually-updated dispatchable location, or (3) enhanced location information, which may be coordinate-based, consisting of the best available location that can be obtained from any available technology or combination of technologies at reasonable cost. This requirement will become effective two years after the effective date of the Order.

• Interconnected VoIP – Similar to MLTS, the FCC recognized in the Order that there might be differences in the feasibility of providing dispatchable location information for fixed vs. non-fixed iVoIP services.
  • Fixed iVoIP – Fixed iVoIP providers will be required to automatically transmit to the PSAP a dispatchable location with a 911 call, but the Commission clarified that the location may be determined by the means of the registered location that customers supply to their provider. This requirement will be effective one year after the effective date of the Order.
  • Nomadic/Non-Fixed iVoIP – Non-fixed providers must automatically provide dispatchable location when technically feasible, but may also rely on the registered location and require the customer to update manually if the calling location is changed or different than the registered location. Non-fixed providers also have the option to rely on alternative location information and as a last resort, the provider may route a 911 call to a national emergency call center for the operator to ask the caller about his or her location. This requirement will become effective two years after the effective date of the Order.
  • Outbound-only VoIP – For the first time, the FCC imposed a 911 dialing requirement on services that only interconnect with the PSTN for outbound calls. (Prior to the Order, only two-way VoIP services had 911 obligations). The FCC also amends the definition of interconnected VoiP in the rules (as it relates to 911 purposes) to include outbound iVoIP. Outbound iVoIP providers must notify subscribers of e911 service limitations and comply with the same location requirements as nomadic/non-fixed providers. This requirement will become effective two years after the effective date of the Order.

• TRS – Fixed internet-based TRS providers are required to provide automated, validated dispatchable location for each call. This requirement will be effective one year after the effective date of the Order. Non-fixed internet-based TRS providers, however, will only have to comply with the same (more flexible) requirements as a non-fixed iVoIP provider and have the same two-year implementation period.

• Mobile Text – Text providers already subject to the 911 rules are required to provide (1) dispatchable location, if technically feasible, or, otherwise, either (2) end-user manual provision of dispatchable location, or (3) enhanced location information. This requirement becomes effective within two years after the effective date of the Order.

Once these rules take effect, the FCC closes a significant gap in its prior rules – calls which originate outside the United States – at the same time that it acts preemptively to prohibit deceptive spoofing in a growing area – text messaging. In the process, the FCC will enhance one of its most commonly used tools in its effort to combat unlawful robocalls – fines for unlawful spoofing. Generally, the FCC has attacked parties that originate unlawful robocalls by fining them for the subsidiary violation of spoofing the unlawful calls. In telecommunications enforcement, spoofing violations are the tax evasion charges to Al Capone’s criminal enterprise.

Expansion of the Spoofing Prohibition

The first change adopted in the August 1 Report and Order was to expand the rules to cover communications originating outside the United States directed at recipients within the United States. The existing rules only applied to persons and entities within the U.S. The new rule states:

“No person in the United States, nor any person outside the United States if the recipient is in the United States, shall, with the intent to defraud, cause harm, or wrongfully obtain anything of value, knowingly cause, directly, or indirectly, any caller identification service to transmit or display misleading or inaccurate caller identification information in connection with any voice service or text messaging service.”

The second change, also incorporated in the rule above, applies the rule’s prohibition beyond voice communications to include text messages. The definition of text messages includes text, images, sounds, or other information transmitted to or from a device, specifically covering short message service ("SMS") and multimedia message service ("MMS") messages. Also covered by the rules are messages sent to or from Common Short Codes (Short Codes), which are the 5- or 6-digit codes commonly used by enterprises to communicate with consumers at high volume.

Not included in the definition is real-time, two-way voice or video communications and messages over IP-enabled messaging services so long as the communication is to another user of the same messaging service. Thus, the rules do not reach messages sent via common OTT applications such as iMessage, Google Hangouts, Whatsapp, and direct message features in Snapchat and Twitter. Rich Communications Services ("RCS") messages, which allow advanced messaging features, are also excluded. The Commission determined that Congress intended for RCS messages to fit under the statutory exclusion for “IP-enabled communications.”

The Commission also clarified its definition of “voice service” to ensure the rules cover the broader “telecommunications service,” as well as interconnected VoIP.

Implementing the RAY BAUM’S Act

The rule changes were required by amendments to the Communications Act, made by the RAY BAUM’S Act of 2018, which strengthened the FCC’s authority over spoofed calls established in the Truth in Caller ID Act of 2009. The 2009 legislation prohibited the use of misleading and inaccurate caller ID information for harmful purposes, but in a 2011 report, the FCC recommended that Congress update the rules to give the Commission authority to prohibit calls outside of the U.S. and make explicit that the Act covers text messages. The order also cited a May 2019 filing by 42 state attorneys general urging the Commission to adopt the rules.

While all voting commissioners supported the order, Commissioner Mike O’Rielly expressed some reservations prior to the vote. In particular, he said he thought the extraterritorial jurisdiction would be difficult to execute and would have preferred narrower statutory language, but did not believe it was his role to “challenge the wisdom” of the legislature. He also said the definitions of text and voice services were broader than he wanted, which he thought might cause future unintended consequences.

The new rules will go into effect on February 6, 2020, or 30 days after Federal Register publication, whichever is later.

This case came about because of an effort by Charter to move Spectrum Voice, its VoIP offering in Minnesota, to a separate corporate entity, Charter Advanced. The MPUC decided to regulate Charter Advanced’s VoIP service as a telecommunications service due to its interconnection with the PSTN. Charter filed suit in response and asserted that its VoIP service is an information service and thus, state regulation is preempted under the Act. The district court decided in Charter’s favor ruling that the VoIP service was an information service and MPUC regulation was preempted.

Here, the Circuit Court affirmed the lower court decision by emphasizing the way in which Charter’s service must transform analog signals into IP information to facilitate a call between a VoIP service and a traditional telephone service. The appellate court found a transformation occurs wherein information (i.e., a phone call) enters Charter’s network in one format and leaves in another via a protocol conversion and such transformation is the “touchstone of the information services inquiry.” The Eighth Circuit’s analysis also briefly assessed the exclusions to Act’s information service definition and found they were not applicable to the characteristics of Charter’s VoIP service. The court specifically noted:

• The first exception is not applicable because Spectrum Voice is a service that is “between or among users” and the network protocol technology that allows users to call traditional telephony users is critical to the service.
• Regarding the second exclusion, the service is not aimed at providing backwards compatibility for existing customer premises equipment (“CPE”) but rather provides users with a new type of equipment to use the VoIP service.
• Finally, the service does not fit the internetworking exclusion because the conversion of information happens outside the carrier’s network, at the point of the CPE.

The Charter v. Lange decision makes a definitive determination, an action the FCC has repeatedly forgone, by concluding that VoIP service like Charter’s is in fact an information service as defined by the federal statue. Notably, Commissioner Michael O’Rielly has recently pushed for the FCC to end its own, self-induced uncertainty and declare VoIP to be an information service. (Former Commissioner Clyburn had a similar plea in 2015 statements). The FCC, while submitting an Amicus Brief supporting Charter in the case, did not go that far – at least not yet.

The issue of appropriate regulatory treatment of VoIP services continues to be a point of disagreement and confusion for telecommunications regulators as well as those possibly subject to this form of regulation in many states. While this case will only have precedential value over a segment of state regulators, it represents an unmistakably clear analysis of the issue that could be referenced in future cases considering regulatory treatment of VoIP. FCC Chairman Pai’s supportive statement in response to the decision bolsters the validity of the decision (and perhaps presages a change in the policy at the FCC) by noting that: “[F]ederal law for decades has recognized that states may not regulate information services. The Eighth Circuit’s decision is important for reaffirming that well-established principle: ‘[A]ny state regulation of an information service conflicts with the federal policy of nonregulation’ and is therefore preempted.” The Chairman has also referenced the decision more recently in supporting a DoJ lawsuit against California’s net neutrality law, calling Internet policy strictly the domain of the federal government.

The MPUC has petitioned the Eighth Circuit for en banc review of the decision in Charter v. Lange. The MPUC argues that Charter’s VoIP service should be treated in the same way as traditional wireline telephone service and be subject to state regulation because otherwise “it invites carriers to artificially alter technical aspects of their service to evade regulation and it undermines competitive neutrality.” Stay tuned for further developments in this matter.

The NPRM highlighted abuses of the third-party verification (“TPV”) process, where carrier agents call consumers to “verify” service provider switches. These agents often misrepresented their identity and the purpose of the TPV call, or prompted consumers to answer questions about unrelated matters (e.g., fake package deliveries) to fabricate consumer consents for provider switches.

The FCC proposes five major reforms in the NPRM:

1. Banning Unauthorized Charges and Misrepresentations: The FCC proposed new rules that explicitly prohibit cramming and misrepresentations by slammers and their sales agents. Although the FCC previously punished violators for such actions under its general consumer protection authority, it stated that clear prohibitions would deter violators, provide clarity to consumers, and aid enforcement. The explicit prohibitions address criticisms from Commissioner O’Reilly of past enforcement actions imposing large fines for cramming and misrepresentations in the absence of clear rules. The FCC indicated that any misrepresentation made during a sales call would invalidate any subsequent consumer consent to switch. The FCC also asked whether cramming and misrepresentations represented enough of an issue for commercial wireless and interconnected VoIP customers to justify expanding the proposed rules to cover these services.
2. Default Carrier Freezes: The FCC proposed requiring carriers to automatically “freeze” a consumer’s choice of preferred service provider until the consumer affirmatively consents to a switch. Current FCC rules place the burden on consumers to request a freeze. Current rules also require consumers to request a separate freeze for each service they receive from a provider. The proposed rules would eliminate this distinction and impose the freeze on all services received by a consumer. The FCC sought comment on how best to notify consumers of the default freeze and what steps the consumer must take to lift the freeze. The FCC also inquired whether the default freeze would frustrate legitimate provider switches.
3. Third-Party Billing Block: The FCC proposed requiring carriers to automatically block third-party fees for local and long-distance services – a frequent source of crammed charges. Consumers would need to affirmatively opt-in to be billed for third-party services. The FCC sought comment on the mechanics of the opt-in process, including whether the opt-in should last indefinitely or expire after some time period. The FCC also inquired whether current third-party billing of consumers should be grandfathered or require new subscriber consent. The FCC acknowledged that changes to subscriber billing systems can be expensive and requested information regarding the costs of updating existing systems. The FCC indicated that most cramming complaints do not involve wireless carriers or interconnected VoIP providers and asked whether the third-party billing block should be extended to these services.
4. Double-Checking Consumer Switches: The FCC proposed lifting the ban on carriers “double-checking” with their subscribers about whether they want to switch providers before processing a switch. This would give consumers another opportunity to avoid slamming. The FCC previously prevented carriers from performing this double-check, worried they would delay processing switches to try and convince subscribers to stay with their current providers. Consequently, the FCC sought comment on whether service providers should be allowed to engage in retention marketing when performing the double-check. The FCC noted that Section 222(b) of the Communications Act prohibits carriers from using “proprietary” information from another carrier for its own marketing efforts and that switch requests represent proprietary information. But Section 222(b) contains an exception permitting the use of proprietary information to combat fraud, and the FCC tentatively concluded that this exception authorized the proposed double-check.
5. TPV Reforms: The FCC proposed requiring carriers that rely on TPVs to record the entire sales call leading up to a provider switch to discourage misrepresentations. The FCC indicated that such recordings would be a major resource in enforcement actions. The FCC also asked whether it should go further and ban TPVs entirely in light of prior abuses.

While the FCC’s initial NPRM draft focused on strengthening protections for traditional landline telephone service subscribers, the final NPRM proposes expanding the protections to cover commercial wireless services (including prepaid services) and interconnected VoIP services. As a result, the FCC may significantly increase both the number and types of service providers subject to its slamming and cramming rules.

Looking Ahead

While slamming and cramming have always been illegal, the new restrictions on consumer marketing and billing proposed by the FCC and their potential expansion to new types of services warrants close attention. The Commission’s proposals could reduce the availability of third party billing as an option for information service providers. In addition, for carriers, the Commission proposes several change to telemarketing sales procedures that have been static for nearly two decades now. Finally, the FCC’s proposals could result in significant new compliance obligations and enforcement exposure for wireless carriers and interconnected VoIP providers. However, it remains to be seen how much of a problem slamming and cramming is for these services and whether the FCC will alleviate some or all of the obligations as they apply to these services.

Comments on the NPRM will be due 30 after its publication in the Federal Register and reply comments will be due 60 days after publication in the Federal Register.

The Bureau’s Public Notice follows up on the Commission’s Direct Access Report and Order released on June 22, 2015, which established a process by which the Commission will authorize interconnected VoIP providers to obtain telephone numbers directly from the Numbering Administrators, rather than through intermediaries. The Commission stated its decision to permit interconnected VoIP providers to receive numbers is expected to “facilitate innovative technologies and services that will benefit both consumers and providers, and further the Commission’s recognized pro-consumer, pro-competition, and public safety goals.”

The new applications are not required to be in any particular form or format. The requirement is simply that each application must contain the following information:

• The applicant’s contact information for personnel qualified to address issues relating to regulatory requirements, compliance with Commission rules, 911, and law enforcement;
• An acknowledgment that the numbering authority granted is subject to compliance with applicable Commission numbering rules, numbering authority delegated to the states, and, industry guidelines and practices regarding numbering as applicable to telecommunications carriers;
• An acknowledgement that the applicant must file requests for numbers with the relevant state commission(s) at least thirty (30) days before requesting numbers from the Numbering Administrators;
• Proof that applicant will be capable of providing service within sixty (60) days of the numbering resources activation date
• Certification that the applicant complies with Universal Service Fund contribution obligations, Telecommunications Relay Service contribution obligations, its North American Numbering Plan and Local Number Portability Administration contribution obligations, and obligations to pay regulatory fees
• Certification that the applicant possesses the financial, managerial, and technical expertise to provide reliable service.

Mobile Wi-Fi Calling and VoIP Service Providers Now Must Comply with FCC Hearing Aid Compatibility Rules

While the FCC's HAC rules currently apply only to CMRS services or handsets with two-way switched voice or data services, the R&O expands the scope to cover handsets used for other services like Wi-Fi calling and VoIP that are increasingly available to the public as well as those that may be developed in the future. Specifically, any service provider or manufacturer of handsets (mobile devices that contain built-in speakers and are typically held to the ear in any of their ordinary uses) used with any terrestrial mobile service that enables two-way real-time voice communications among members of the public or a substantial portion of the public must comply with the new rules. The new rules will be effective 30 days after publication in the Federal Register, which had not yet occurred as of this post.

These rules will apply to technologies such as interconnected and non-interconnected VoIP services with pre-installed software applications. This includes handsets that enable voice communications through VoIP software applications installed by either the manufacturer or service provider regardless of whether the calling functionality provides interconnection to the public switched telephone network. These rules will also apply to cordless phones as well as handsets offered by wireless resellers (MVNOs), facilities-based providers, and voice communications services over Wi-Fi that do not use an in-network switching facility enabling the reuse of frequencies and seamless handoff.

The Commission opted not to extend the requirements to public safety networks, enterprise networks, and non-terrestrial networks such as Mobile Satellite Service that are not mass-marketed to the public, yet the Commission retains the right to revisit that decision in the future if necessary.

The R&O is clear that the Commission expects manufacturers to account for hearing aid compatibility during the early stages of product development, yet notes that in rare cases where a new technology cannot practicably meet the requirements, section 710 of the Communications Act expressly provides for a waiver of the rules.

Lastly, the Commission requires both manufacturers and service providers to meet defined benchmarks for deploying wireless handsets to ensure a wide selection of models for consumers with hearing loss. The Commission's existing deployment benchmarks will apply to newly covered handsets and air interfaces as of January 1, 2018 for manufacturers and Tier 1 providers, and on April 1, 2018 for handsets offered by non-Tier 1 service providers.

Other deadlines to note: The annual FCC Form 655 filing deadlines for 2015 are still in effect. Manufacturers must electronically file annual compliance reports with the Commission on July 15 of each year and service providers must file on January 15 of each year. The NPRM does ask whether to remove the annual filing requirement, should it adopt the Joint Proposal, for both providers and manufacturers, or alternatively, remove the requirement for service providers, only requiring manufacturers to file annually.

FCC Seeks Comment on Joint Proposal for Full Wireless Handset HAC Compliance in Eight Years

The Commission's NPRM solicits comment on a proposal (Joint Proposal) submitted by three consumer advocacy groups and three trade associations, which seeks to ensure that 100 percent of all new wireless handset models are accessible to consumers with hearing loss within eight years. The Competitive Carriers Association, CTIA – The Wireless Association, the Telecommunications Industry Association (TIA), the Hearing Loss Association of America, the National Association of the Deaf, and Telecommunications for the Deaf and Hard of Hearing submitted the Joint Proposal on November 12, 2015, which the FCC is considering. The proposal includes the following:

• Within two years, 66 percent of wireless handsets offered to consumers should be compliant with the requirements;
• Within five years, 85 percent of wireless handsets offered to consumers should be compliant with the requirements; and
• Within eight years, 100 percent of wireless handsets should be compliant, subject to a finding by the FCC that the goal of 100 percent is achievable using the following process:

While the Commission appears to favor the Joint Proposal, it also seeks input on alternative proposals it should consider and whether 100 percent compatibility is the appropriate benchmark. The commenters submitted the Joint Proposal in response to a Public Notice requesting updated information and comment on wireless HAC regulations last November.

FCC Seeks to Update Volume Control Requirements

Last month, the FCC released a related Notice of Proposed Rulemaking, seeking comment on the Commission's HAC rules for wireline handsets. Under this NPRM, the Commission proposes to adopt the Telecommunications Industry Association 2012 ANSI Wireline Volume Control Standard and apply the FCC's wireline telephone volume control and other HAC requirements to handsets used with VoIP services. Second, the FCC also seeks comment on a rule that would standardize volume control for wireless handsets to ensure more effective acoustic coupling between handsets and hearing aids for cochlear implants. Third, the Commission proposes to require manufacturers to exclusively use the 2011 standard developed by ANSI to certify future handsets as hearing aid compatible. Lastly, the FCC seeks comment on a process for enabling industry to use new or revised technical standards for assessing HAC compliance.

Comments on this NPRM are due 60 days after publication in the Federal Register and reply comments are due 90 days after publication in the Federal Register.

It is a busy time at the Commission with respect to HAC requirements. These new rules are extensive. Feel free to reach out to your Kelley Drye Communications Attorneys should you need assistance or having any questions about how these rules may impact your business.

As the chart shows, the FCC has imposed many telecom obligations on interconnected VoIP on an individual basis. In each instance, the FCC relied upon its ancillary authority to impose the obligation, even if it were ultimately to classify interconnected VoIP an information service. In a few instances, the FCC has not -- yet at least -- imposed a telecom obligation on interconnected VoIP. VoIP services that do not meet the FCC's definition of "interconnected VoIP" are not subject to any of the telecom service requirements today.

DISCLAIMER: This chart is for informational purposes only and is not intended to serve as legal advice or a comprehensive review of regulatory obligations. With that in mind, you may view the chart here.