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By Lydia Beyoud
Jan. 26 — Cable broadband operators could get swept up into additional regulatory complications involving discontinuance of services if the FCC approves a notice of proposed rulemaking related to the Internet protocol (IP) transition in addition to reclassifying broadband Internet service providers as common carriers, an industry lobbyist said Jan. 26.
As part of the FCC's initiative to ensure consumer safety as carriers transition their older copper-based networks to ones that run on IP networks, the Federal Communications Commission issued an NPRM Nov. 21 that would impose new service discontinuance notice procedures if approved (GN Docket No. 13-5).
That proceeding could intersect with the agency's open Internet proceeding if the FCC decides to reclassify broadband services under Title II of the Communications Act of 1934, said Hank Hultquist, vice president of government affairs for AT&T Inc. He spoke in New York as part of a Practising Law Institute panel on wireline voice.
Service changes that once wouldn't have mandated a Section 241 discontinuance notice would now do so if the NPRM is adopted, said Hultquist. He provided the examples of a cable provider removing a speed tier, or providing all customers with the highest speed rates but charging based on usage as possible new compliance areas.
The FCC hasn't previously treated the removal of wholesale services as a discontinuance, Hultquist said. “They propose here that there would be a rebuttable presumption that if a wholesale service is removed, that that would impair service to a community or part of a community by limiting the offerings of competitors,” he said. “That's a fairly significant change in the way they've understood discontinuance in the past.”
The FCC said in a news release accompanying the NPRM that the increased transparency measures would empower and protect consumers during the transition, noting that “the expected frequency of network changes and discontinuances requires the FCC to modernize its rules regarding consumer notice and input in the event of network changes and discontinuances.”
Lawyers representing cable companies and clients shouldn't focus solely on one of the NPRM's other key components, namely backup battery requirements for phone services in the event of an emergency, but instead should consider the implications the FCC's discontinuance proposals will have on cable companies going forward if they are reclassified as common carriers, Hultquist said.
A declaratory ruling issued with the NPRM could also provide the FCC with greater discretion in determining when a service is available under a tariff, he said. With those provisions, the FCC appears to be suggesting that even if a service continues to be available under a tariff, a discontinuance notice and requirement may be triggered if something about the change in the underlying technology is such that the totality of the circumstances in the FCC's view suggests that the function of the service has changed,” said Hultquist. “That's a pretty broad expansion of the understanding of what constitutes a discontinuance.”
AT&T hasn't officially filed comments on the NPRM, Hultquist said.
A footnote in the NPRM indicates that some of the discontinuance analysis on the issue is already well developed, said fellow panelist Ronald W. Del Sesto, Jr. of Morgan Lewis & Bockius LLP. The footnote indicates that if a service provider changed a tariff-defined service, they wouldn't necessarily be subject to a Section 214 approval process, said Del Sesto, who represents competitive carriers but spoke on his own behalf.
Similarly, “if you went from some service that was tariffed to one that was detariffed,” the FCC indicated a Section 214 approval may not be required. “In functional analysis, this is something that's been around quite some time,” he said. “I think we're really far down the line on that kind of analysis.”
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