Communications Act Updates May Provide Path for Clarity, State Commissioners Say

NARUC Telecom Committee Chairman John Burke sent a letter Thursday to the Republican and Democratic leadership of the committee and subcommittee pressing these virtues. During the update process, NARUC “urges the Committee to retain the strong historic role States play protecting your consumer and business constituents, maintaining emergency services, managing post-disaster service restoration, promoting broadband deployment and competitive interconnection policy, as well as assuring disabled access and universal service,” Burke, also a Vermont Public Service Board commissioner, told Congress. Market forces can’t fix everything, and Congress should not prevent consumers from “State remedies or penalties for federally defined inappropriate or abusive conduct,” he said.

House Commerce appreciates the input of all stakeholders, NARUC included, and looks forward to continued engagement, said a committee aide.

State commissioners like the timing. “It’s clear there is an appetite for an update,” Burke told us. He testified before the House Communications Subcommittee this fall on the IP transition and said he sensed then the members wanted to revisit the law. Paul Kjellander, president of the Idaho Public Utilities Commission and co-vice chairman of the NARUC telecom committee, agreed. “It’s time, clearly,” Kjellander told us, describing all the technological changes since 1996: “Who would have thought VoIP would exist?” Kjellander cited what may be “perfect timing,” given FCC Chairman Tom Wheeler’s recent confirmation. A Communications Act rewrite would be important for clarifying many questions that leave state commissioners lost in ambiguity, he said, such as regarding USF contributions and how different services contribute. “Give us some guidance."

NARUC General Counsel Brad Ramsay sees the House Republicans’ emphasis on a Communications Act “update” rather than “rewrite” as significant, he told us. “'Rewrite’ means everything’s up for grabs.” Walden has occasionally used the word “rewrite,” but his staff has tried to distance themselves from that word and not officially used it. Ramsay said he traveled to Capitol Hill every week in the time leading up to the 1996 Telecom Act, but now he doesn’t expect that will happen in the same way. The 1996 law is “not perfect,” he said. Although Ramsay called it a long shot, he wonders whether Republicans might take the Senate in the 2014 midterm elections and suspects legislation might pass surprisingly quickly after, if so.

Burke said technology changes don’t affect consumer values. “As consumers increasingly come to rely on wireless, VoIP and other technologies to replace traditional phone service, their expectations for responsive consumer protection are unlikely to change,” he wrote in the letter. Burke pointed to the federalism white paper a NARUC telecom task force developed over the last year, a document adopted at the regulators’ November meeting in Orlando.

"There still should be a state role,” Ramsay said, pointing to issues like public safety and service quality. State regulators hear about problems first and are better able to deal with situations on that geographic level, where there is “more accountability and less waste,” he added. “If you live in Hawaii, you don’t want to wait on the FCC to get a problem solved.” Going to state attorneys general can take too long, he said, though pointed to how state legislatures can change state laws if people make “enough noise."

Burke told us two factors dictated his timing in sending the letter. He wanted to remind Congress of elements that “worked well” in the 1996 act and also couldn’t wait, since his time as chairman of the telecom committee is about to come to an end, he said.

Comptel “applauds NARUC’s continued efforts to protect consumers, and its recognition of the important role interconnection rights and competition play in ensuring consumers have a choice in providers and quality of service,” the association told us in a statement. “Chairman Burke’s letter highlights the need for states to continue to have a role on communications issues and be involved in any Congressional review of the Act."

Another significant factor is the position of Ray Baum, Burke said. Baum was an Oregon Public Utilities Commissioner and is now senior adviser to Walden. Baum is a Republican and Burke a Democrat, but the two could always overcome “ideological differences” as NARUC colleagues, Burke said. Both Burke and Kjellander expect questions of IP interconnection will come up as Congress revisits the Communications Act, both stressing a desire for more clarity on what the service is and how regulators should or should not treat it. “To me, it looks like a duck and quacks like a duck, it ought to be a duck,” Burke said, expressing his desire for VoIPs to be classified as a telecom Title II service, even if that’s not politically easy. Burke reflected on a lot of “Kool-Aid consumed” about how many people are connected and at what capacity, and suspects that will also need to come up in any rewrite, pointing to what he sees as a widening divide between urban and rural consumers.

"The states can help,” Kjellander said of the update process. “What I really hope would happen, let’s quit looking at the companies and instead look at the consumers.” Kjellander guesses many factors could be pulled into an update, he said. The Federal-State Joint Board on Jurisdictional Separations and the Federal-State Joint Board on Universal Service have been largely ignored in recent years, and their structure and purpose may need to change, Kjellander said. He touched on the year’s revelations of National Security Agency phone surveillance and wondered whether those questions -- of who can access metadata under what terms, where metadata are stored -- should be addressed in any update, too.

The state utility commissions have not engaged in rate-making regulation that “everyone always accuses the states of doing,” Ramsay added, saying the federalism white paper reflects that, as well as years of NARUC positions. Needs for phone-service interconnection have not changed, especially for smaller companies, he said, citing needs to intervene even as the country moves further into an era of IP-enabled services. He cautioned the rhetoric in support of shedding regulations for those services and emphasized that IP services don’t actually touch the public Internet. More than half of U.S. state legislatures have enacted laws limiting state regulators, broadly speaking, from regulating IP services. Burke credited that to industry lobbying. Competition also won’t stop “bad actors,” Ramsay said.

Even with heavy telco lobbying in favor of less regulation for IP services, Ramsay suspects no one in Congress would allow the rollback of certain emergency regulations like 911, as has been the case with VoIP. “I don’t think there’s anyone on Capitol Hill that thinks CALEA [Communications Assistance for Law Enforcement Act] should go.” (jhendel@warren-news.com)