NTCA Seeks Changes to FCC Intermediate Carrier Draft, Eyes Record-Keeping Duties

The draft's measures "lack the specificity necessary to ensure that all providers in a call path understand and comply with their obligations," filed NTCA on meetings with aides to Chairman Ajit Pai and Commissioner Jessica Rosenworcel, posted Tuesday in docket 13-39. The group is particularly concerned the draft "would relieve providers of their obligation to retain the records necessary to ensure that they comply with their general obligations to complete calls under the law before it is confirmed that alternative 'flexible' measures will not lead to backsliding in call completion performance."

It wasn't until the FCC adopted reporting and record-keeping requirements on covered providers originating calls that call completion performance improved, bolstered by certain providers’ "safe harbor" compliance with industry "best practices" that limited the number of intermediate providers in a call path, NTCA suggested. Yet a previous FCC order relieved covered providers of reporting duties and the current draft would eliminate call data recording and retention rules a year after new intermediate provider standards, the group said. That "would gut the 'safe harbor' as to covered [originating] providers while also extending a weakened 'safe harbor' to covered intermediate providers."

NTCA questioned why any provider "would abide by the safe harbor and its methods proven to complete calls by (1) restricting the number of intermediate providers in the call path, (2) limiting non-disclosure agreements with intermediate providers so that it may reveal the identity upon request, and (3) having a process in place to monitor its intermediate providers." If the draft is adopted as is, "the 'safe harbor' -- the best mechanism to date in ensuring call completion performance -- is likely to become meaningless as covered and intermediate providers opt instead merely to 'monitor' the performance of downstream operators," the group said.

The FCC should make changes that enable "movement toward" flexible methods for managing call routing "while helping still to ensure that calls will complete to rural consumers," NTCA said. It urged the agency to require intermediate providers to keep records on compliance with the draft's flexible service-quality standards, condition elimination of existing covered provider record-keeping duties on rules being effective, and make clear "it will impose penalties for both single infractions and patterns of non-compliance or misconduct."

WTA shares NTCA concerns and supports its proposals, emailed Senior Vice President Derrick Owens. The FCC and some providers didn't comment.

The draft generally "does what’s intended" under a rural call quality act, said Kevin Rupy, USTelecom vice president-law and policy. He said it establishes "a compliance framework with increased transparency without necessarily being too prescriptive or overly burdensome." USTelecom supports actions to ensure calls to rural areas are completed, he said. "This order, I think, takes appropriate steps to ensure that’s the case, particularly with the previously adopted registration requirement for intermediate providers."

West Telecom Services backs the draft's flexible standards, said Robert McCausland, vice president-regulatory and government affairs. West is both an intermediate and originating covered provider. He said a proposed safe harbor for intermediate providers that demonstrate adherence to ATIS best practices is an incentive to improve rural call completion. He said the FCC can address any backsliding through continued enforcement. West doesn't believe data retention rules are needed but doesn't necessarily object to NTCA's proposal to condition elimination.

The FCC shifted from a "somewhat more prescriptive approach, based on ATIS best practices, to a more flexible approach that uses ATIS best practices as a safe harbor," said counsel for another intermediate provider. "A lot of the reputable intermediate providers already follow the best practices, so it shouldn’t be a problem."

Rural call completion is a "vexing" issue, emailed Jones Day attorney Mike Hazzard. "The Commission is doing its best with these rules, but like some many areas today, the FCC can only 'catch the catchable.' In many areas, including here, the worst offenders are groups that are difficult to find and bring into the fold. But that’s a price of the 'light regulatory touch.' It ends up being pretty easy for fly-by-night companies to operate, and pretty hard for the FCC to enforce their rules against them." The draft puts "the onus for any remaining" issues "squarely on intermediate carriers," blogged CCMI consultant Andrew Regitsky.