TSTCI Annual Membership Meeting October 14-16, 2015 The IP Transition Copper Retirement - Service Discontinuance Residential Backup Power FCC Privacy Authority Tony Veach Bennet&Bennet, PLLC
LEGAL DISCLAIMER This presentation is not intended to create an attorney-client relationship. The information in this presentation is intended for educational purposes only and is not offered as legal advice.
THE IP TRANSITION Presentation Outline August 2015 Copper Retirement Order August 2015 Residential Backup Power Order IP Transition Background Information Copper Retirement Notification Process Definition of Retirement Notice Requirements Section 214 Service Discontinuance Application Process When? Reasonably Comparable Wholesale Access Rule Is There a Rural Exemption? Residential Backup Power 8 and 24 Hour Rule Disclosure Requirements Future FCC Privacy Rules
BACKGROUND What is The IP Transition The historic technology transitions that are transforming our nation s communications services from networks based on time-division multiplexed (TDM) circuit-switched services running on copper loops to all-internet Protocol (IP) networks using copper, co-axial cable, wireless, and fiber as physical infrastructure. Convergence of voice, data, and video services over an all-ip platform.
BACKGROUND As of December 2013, there were 444 million total retail local telephone service connections in the U.S. End-User Switched Access Lines: 85 million Interconnected VoIP Subscriptions: 48 million Mobile Subscriptions: 311 million Over the three-year period 2010-2013, interconnected VoIP subscriptions increased at a compound annual growth rate of 15%, mobile telephony subscriptions increased at a compound annual growth rate of 3%, and retail switched access lines declined at 10% a year. (Dec 2010: 31 million VoIP and 117 million SALs) SOURCE: Local Telephone Competition: Status as of December 31, 2013 Industry Analysis and Technology Division, Wireline Competition Bureau, October 2014.
BACKGROUND A Few Key Events That Prompted New Rules October 2012: Super Storm Sandy / Verizon Fire Island November 2012: AT&T and NTCA Petitions January 2014: Tech Transitions Order and AT&T Wire Center IP Trials November 2014: NPRM on Copper Retirement and Backup Power August 7, 2015: FCC Report and Order on Copper Retirement, Section 214 Discontinuances, and Residential Backup Power
Copper Retirement + Copper Retirement Notice Requirement When a carrier retires its copper network it must provide notice because it involves a change in communications facilities.
COPPER RETIREMENT In light of marketplace developments, the Commission updated (expanded) its network change disclosure rules to require incumbent LECs to provide more robust notice of planned copper retirements. Copper Retirement Notice Requirement When a carrier retires its copper network it must provide notice because it involves a change in communications facilities. Notice must be provided to customers, interconnecting carriers, and government agences. In contrast, a service discontinuance is subject to an approval process because it involves a change in services.
COPPER RETIREMENT What is Copper Retirement? The FCC defines copper retirement to mean removal or disabling of copper loops, subloops, or the feeder portion of such loops or subloops, or the replacement of such loops with fiber-to-the home loops or fiber-to-the-curb loops. -New Rule Section 51.332(a) Retirement = the removal or disabling of copper facilities Disabling = rendering the copper facilities inoperable (through acts of commission or omission) Removal = physical removal
COPPER RETIREMENT Disabling = rendering the copper facilities inoperable (through acts of commission or omission) Disabling = inoperable for long term or permanent periods of time A sufficiently long disabling of facilities (or the functional equivalent thereof) with no end in sight, even if ostensibly temporary, may constitute retirement for which a carrier must undergo our network change notification process. The term disabling does not, however, mean only affirmative acts by incumbent LECs acts of omission, such as the failure to repair or maintain copper facilities, can also render those facilities inoperable. A sufficient and long-term level of neglect can therefore constitute retirement. If copper remains physically present but is no longer capable of providing telecommunications services (i.e., it is inoperable), it has been disabled and is retired within the meaning of the FCC s rules.
COPPER RETIREMENT Disabling = rendering the copper facilities inoperable (through acts of commission or omission) Not Disabling * Instances where facilities are temporarily inoperable due to a catastrophe or repair should not constitute disabling under the new rule. * The FCC does not intend for the retirement definition to encompass the downtime associated with scheduled upgrades and repairs. Lengthy Period of Inoperability May Equal a Retirement Has copper been retired (has there been a disabling) due to a lengthy period of time where facilities are inoperable? The FCC will use a case-bycase analysis to make this determination. Each circumstance will require careful analysis of the particular facts at issue. The FCC will look at a number of factors, including but not limited to: -The length of time in which the facilities have been unavailable; -The announced plans of the incumbent LEC with respect to the facilities; and -The extent of unavailability.
COPPER RETIREMENT De Facto Retirement: We also define copper retirement to include de facto retirement, i.e., failure to maintain copper loops, subloops, or the feeder portion of such loops or subloops that is the functional equivalent of removal or disabling. A de facto retirement is defined as the failure to maintain copper that is the functional equivalent of removal or disabling. De facto retirement = intentional neglect
COPPER RETIREMENT 180-Day Notice to Interconnecting Carriers Incumbent LECs must provide direct notice to interconnecting entities at least 180 days prior to the planned implementation date of a copper retirement, except when the facilities to be retired are no longer being used to serve customers in the affected service area. Description of Changes: The notice must include the information currently required by Section 51.327(a) of the FCC s rules, as well as a description of any changes in prices, terms, or conditions that will accompany the planned changes. Also Good Faith: incumbent LECs must work in good faith with interconnecting entities to provide information necessary to assist them in accommodating planned copper retirement without disruption of service to their customers. (*Further Notice seeks comment on what indicates good faith.)
COPPER RETIREMENT Notice to Customers (90 and 180 Days) Incumbent LECs must provide direct notice to retail customers of planned copper retirements. Retail customers include residential customers, as well as businesses and anchor institutions. Only where the retirement will result in the involuntary retirement of copper loops to the customer s premises. For example, incumbent LECs must provide direct notice to customers where it replaces copper-to-the-premises with fiberto-the-premises. Notice to customers will not be required in those instances where operational copper remains in place.
COPPER RETIREMENT Notice To Customers Requirements Copper retirement notices to retail customers must include a neutral statement of the various service options that they make available to retail customers affected by the planned copper retirement. No upselling in notice (can upsell in separate communications). Form of Notice: Email and Written Letter Residential Retail Customers: 90-Day Notice Non-Residential Retail Customers (Businesses/Anchors): 180- Day Notice Toll Free Number and Website: So customers may call to raise any questions about the planned retirement, and get relevant information
COPPER RETIREMENT Notice To Government Agencies Incumbent LECs must provide direct notice of a planned copper retirement directly to state authorities (the governor and the state PUC), the Department of Defense, and federally recognized Tribal Nations where the copper retirement will occur within their Tribal lands. When This notice should occur contemporaneously with notice to interconnecting entities. Specifically, this notice must be provided no later than the same time as the incumbent LEC notifies the Commission (i.e., no later than the same time that it submits the notice that will trigger the Commission to issue a public notice that establishes a period of at least 180 days before retirement) unless there are no customers, in which case the notice must be provided at least 90 days before retirement.
COPPER RETIREMENT Certificate of Service Incumbent LECs must file with the FCC at least ninety (90) days before retirement is permissible a certificate of service, signed by an officer of the company that includes, among other things, the following: A statement that identifies the proposed changes (copper retirement) A statement that notice has been given to interconnecting carriers, customers, and government agencies See New Rule Section 51.332(d)
Is There a Rural Exemption + for Copper Retirement Notices?
Section 251(f)(1) Rural Exemption? FCC Legal Authority The FCC concluded that it has the authority pursuant to sections 201(b) and 251(c)(5) of the Communications Act to adopt the proposed revisions to the network change disclosure rules regarding the types of information that must be contained in copper retirement notices. Section 251(c)(5) of the Act places the following duty on incumbent local exchange carriers: The duty to provide reasonable public notice of changes in the information necessary for the transmission and routing of services using that local exchange carrier s facilities or networks, as well as of any other changes that would affect the interoperability of those facilities and networks.
Section 251(f)(1) Rural Exemption? Section 251(f)(1)(A) Rural Exemption Does the Section 251 rural exemption apply here? 47 U.S.C. Section 251(f)(1)(A) (f) Exemptions, suspensions, and modifications (1) Exemption for certain rural telephone companies (A) Exemption Subsection (c) of this section shall not apply to a rural telephone company until (i) such company has received a bona fide request for interconnection, services, or network elements, and (ii) the State commission determines (under subparagraph (B)) that such request is not unduly economically burdensome, is technically feasible, and is consistent with section 254 of this title (other than subsections (b)(7) and (c)(1)(d) thereof).
Section 251(f)(1) Rural Exemption? Does the Section 251 rural exemption apply here? Do you still have your rural exemption? Wait for WTA / Rural Associations Request for Clarification. Wait for the OMB information!
Section 214 Discontinuance + Service Discontinuance Approval Process When a carrier discontinues its network it must seek and obtain Commission approval because it involves a change in services.
SERVICE DISCONTINUANCE A carrier must seek and obtain Commission approval before discontinuing, reducing, or impairing a service used as a wholesale input when the carrier s actions will discontinue, reduce, or impair service to end users, including a carrier-customer s retail end users. Section 214(a) of the Communications At directs the FCC to ensure that the public is not adversely affected when carriers discontinue, reduce, or impair services on which communities rely. Therefore, a carrier may discontinue a service used as a wholesale input so long as it either (a) obtains Commission approval via the section 214 process, or (b) determines that there will be no discontinuance, reduction, or impairment of service to end users, including carrier-customers end users.
SERVICE DISCONTINUANCE Discontinuing Carrier Must Evaluate Impact Carriers must assess the impact of their actions on end user customers. Carriers must undertake a meaningful evaluation of the impact of actions that will discontinue, reduce, or impair services used as wholesale inputs and assess the impact of these actions on end user customers. This meaningful evaluation must include consultation directly with affected carrier-customers to evaluate the impact on those carrier-customers end users. If their actions will discontinue service to any such end users, Commission approval is required.
SERVICE DISCONTINUANCE Replacement Wholesale Inputs Should Be Considered When assessing whether a carrier s actions will result in discontinuance, reduction, or impairment of service to a carriercustomer s retail end users, consideration of whether replacement wholesale services are available to the carrier-customer from other sources is warranted. If replacement services are available from other carriers, there may be no discontinuance.
SERVICE DISCONTINUANCE When is Commission Approval Not Required? Commission approval is not required, however, for a planned discontinuance, reduction, or impairment of service: (i) when the action will not discontinue, reduce, or impair service to a community or part of a community; or (ii) (ii) for any installation, replacement, or other changes in plant, operation, or equipment other than new construction, which will not impair the adequacy or quality of service provided. A carrier should not discontinue a service used as wholesale inputs until it is able to determine that there will be no discontinuance, reduction, or impairment of service to a community or part of a community of end users, including carriercustomers end users. What about going from TDM voice to IP voice service?
Residential Backup Power +
Residential Backup Power Providers are increasingly utilizing fiber, which has more capabilities than a copper line, but falls short in terms of reliability because services based on IP and provided over a fiber network rely on a residential power source.
Residential Backup Power The 8 Hour Rule Providers of non-line-powered facilities-based, fixed, voice residential service, including fixed wireless service intended as POTS replacement must offer, at the subscriber s option and expense, a backup power solution that provides 911 access for 8 hours in the event of commercial power loss. (*8 Hours of Standby Time) Covered Services facilities-based, fixed voice service that is not line-powered by the providers, and is offered as a residential service. A wireless voice service is fixed if it is marketed as a replacement for line-powered telephone service and is intended primarily for use at a fixed location.
Residential Backup Power The 8 Hour Rule At Least One Technical Solution: Providers of covered services must offer at least one technical solution capable of supporting at least 8 hours of uninterrupted 911 service and install such equipment, at the subscriber s option and expense, as part of its installation of service. Customers must purchase commonly available equipment. If, however, the solution accepts commonly available equipment such as D- Cell batteries, providers need not supply such equipment themselves, as long as they notify subscribers at the point of sale that it is not included and must be supplied by the subscriber for the solution to function properly. Proprietary? If the solution requires a proprietary battery or other equipment that is not widely available in retail stores, the equipment should be provided as part of the installation of service.
Residential Backup Power 24 Hour Solution Within three years, providers of covered services also must offer new subscribers at the point of sale and install, at the subscriber s option and expense, a 24-hour backup power solution if a subscriber desires additional protection. Providers are not required to offer technologically distinct 8-hour and 24-hour solutions, so a 24-hour solution could consist simply of three 8-hour batteries.
Residential Backup Power Power Disclosure Requirements All providers of facilities-based, fixed, voice residential service that is not line-powered must notify subscribers, at the point of sale and annually thereafter until September 1, 2025, of the availability of backup power purchasing options, use conditions and effect on power source effectiveness, power source duration and service limitations, testing and monitoring, and replacement details. Providers are also encouraged, but not required to conduct tailored outreach to state and local disaster preparedness entities to ensure that consumables associated with their backup power technical solutions are well understood so that communities may prioritize restocking and/or recharging in support of extended power outages.
Section 222 Privacy of Customer Information
The Communications Act Section 222 (a) In general Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications carrier. (b) Confidentiality of carrier information A telecommunications carrier that receives or obtains proprietary information from another carrier for purposes of providing any telecommunications service shall use such information only for such purpose, and shall not use such information for its own marketing efforts. (c) Confidentiality of customer proprietary network information (1),(2),(3)
Section 222 TerraCom/YourTel Data Breach Order On a 3 to 2 vote, the FCC issued a Notice of Apparent Liability for Forfeiture against TerraCom, Inc. and YourTel America, Inc. for apparent willful and repeated violations of Section 222 of the Communications Act and the FCC s rules for failing to protect consumers proprietary information. The FCC proposed that TerraCom and YourTel are jointly and severally liable for a forfeiture totaling $10 million. The enforcement action is the FCC s first ever data security case and the largest privacy action in its 80-year history. SOURCE: TerraCom, Inc. and YourTel America, Inc. Apparent Liability for Forfeiture, File No.: EB-TCD-13-00009175, NAL/Acct. No.: 201432170015, FRNs: 0010103745 and 0020097572, FCC 14-173 (Oct. 24, 2014) (NAL).
Section 222 TerraCom/YourTel Data Breach Order The FCC charged TerraCom and YourTel with apparently violating: (1) Section 222(a) of the Act for failing to protect the confidentiality of proprietary information that consumers provided to demonstrate eligibility for Lifeline telecommunications services; (2) Section 201(b) of the Act by failing to employ reasonable data security practices to protect consumers proprietary information; (3) Section 201(b) of the Act by representing in their privacy policies that they protected customers personal information, when in fact they did not; and (4) Section 201(b) of the Act by failing to notify all customers whose personal information could have been breached by their inadequate data security policies.
Section 222 Telecommunications carriers have a duty under Section 222(a) to protect customers proprietary information, and that duty is triggered when a carrier accepts confidential private information from a potential customer as part of the service enrollment process. Carriers have a duty under Section 201(b) to employ just and reasonable data security practices to protect and secure the proprietary information of their customers. Encryption does not constitute a safe harbor. The FCC did not hold that encrypting without more would satisfy a carrier s duty under Section 222(a) or render a carrier s data security practices just and reasonable under Section 201(b), but it did state that it believes a lack of encryption clearly shows the unjust and unreasonable nature of a company s data security practices.
Section 222 2015 Open Internet Order Section 222 applies to broadband service (no forbearance). Existing CPNI rules do not apply (47 C.F.R. 64.2000 Separate rulemaking proceeding to develop/adopt new rules for broadband As broadband Internet access service users access and distribute information online, the information is sent through their broadband provider. Broadband providers serve as a necessary conduit for information passing between an Internet user and Internet sites or other Internet users, and are in a position to obtain vast amounts of personal and proprietary information about their customers. Absent appropriate privacy protections, use or disclosure of that information could be at odds with those customers interests. (2015 Open Internet Order 463)
Section 222 2015 Lifeline Order on Recon New rules require all Lifeline providers to retain documentation demonstrating subscriber eligibility for the Lifeline. At the same time, the FCC reminded all ETCs that these documents contain Lifeline subscribers private information (aka Section 222 proprietary information), which ETCs must protect. Further, the FCC reminded ETCs that their data security practices should be just and reasonable, and it expects that, at a minimum, ETCs must employ the following practices to secure any subscriber information that is stored on a computer connected to a network: firewalls and boundary protections; protective naming conventions; user authentication requirements; and usage restrictions, to protect the confidentiality of consumers proprietary personal information retained for this or other allowable purposes.
Questions / Comments / Concerns? Tony Veach Bennet & Bennet, PLLC tveach@bennetlaw.com 202-631-9190