NARUC Says FCC VoIP Numbering Order Requires Title II Classification

The FCC's classification analysis is relevant to NARUC's case against the agency's direct numbering order, NARUC said, though it isn't "purporting" to address the VoIP classification issue directly. It noted classification is also at issue in litigation over the FCC's net neutrality and Title II broadband order. The association said the order giving interconnected VoIP providers direct numbering access requires telecom carriers to port numbers to I-VoIP providers that aren't telecom carriers, lack the same duties and rights as those carriers, and aren't state-regulated. In not expressly classifying I-VoIP providers as telecom carriers offering telecom services, the commission is avoiding limits on its authority and undermining state duties under federal law to regulate telcos, the brief said.

"Although pulling at just one thread, the Order may well unravel the fabric of the Act and eviscerate the role assigned States to protect competition and consumers," NARUC said. "Carrier rights to e.g. nondiscriminatory interconnection and intercarrier compensation under Sections 251 and 252 rely upon the fact that such arrangements take place between regulated telecommunications carriers. If non-carriers obtain direct access to numbers, the FCC will cripple the Sections 251-252 framework, a framework in which State Commissions play an integral role as the arbiter of carrier-to-carrier disputes and the sounding board for consumer complaints."

NARUC said the FCC can't bring itself to classify I-VoIP service -- even though the service "on its face" meets the telecom service definition, competes directly against telecom carriers and, according to the agency, is perceived by consumers to offer the same functionalities as traditional phone service. "Yet the FCC has no difficulty in the current Order, and on at least four prior occasions, extending piecemeal 'certain Title II obligations to interconnected VoIP providers' based on those same characteristics," the brief said. It cited agency orders on 911, USF contributions, customer proprietary network information protections and deaf relay services: "All four are Title II duties Congress imposes on telecommunications carriers." The refusal to classify I-VoIP forces states to litigate the application of service quality standards to I-VoIP providers and also complicates their ability to arbitrate VoIP interconnection agreements under Sections 251 and 252, it said.

Section 151 requires the FCC to "execute and enforce [its] provisions," NARUC said. "It has a fully developed record dating back to 2002. The law is clear." The group said the FCC "displays a purposeful disregard of the Congressional scheme and lack of reasoned decision making." It also said the agency's "recalcitrance assures that competition/competitive entry has less protection if I-VoIP services are involved." The FCC and several telecom observers we queried had no comment Tuesday.

The FCC order disagreed with NARUC and Bandwidth.com that classifying I-VoIP providers as telecom carriers offering Title II telecom services was necessary to provide direct numbering rights. It said nothing in Section 251(e) restricts the agency's jurisdiction to telecom carriers, and it noted sections 251(a)-(c) expressly pertain to telecom carriers, LECs and ILECs. "It is a well-understood rule of statutory construction that, when Congress includes a term in one portion of the statute but not another, it did so intentionally," the order said. The limitation in Section 251 (a) through (c) showed that lawmakers knew how to limit certain rights and obligations to telecom carriers or services, it said. "The absence of any such express limitation in section 251(e) supports our finding that Congress did not intend to limit the Commission's flexibility to extend direct access to numbers to non-carrier interconnected VoIP providers." It also said VoIP direct numbering authority doesn't conflict with other provisions the way the critics contend.