Pre-Emption Fight Entangles Battery-Backup Policy

The Vermont board is mulling a petition to investigate E-911 reliability by Charles Larkin and Stephen Whitaker, telecom and IT professionals who designed, engineered and implemented the state’s E-911 system (docket 8842). Larkin and Whitaker asked the PSB to investigate whether to require backup power for wireless companies and cable and fiber operators offering VoIP service. Other states are also looking at battery backup and network resiliency issues. ISPs raised alarm about a proposed rule at the District of Columbia Public Service Commission requiring backup power for fiber facilities (see 1604200046). The California Public Utilities Commission has battery backup rules and is considering other resiliency measures in a proceeding on rural call completion (see 1702080065).

In Vermont, some said state battery-backup rules for wireline VoIP providers are unneeded due to federal actions. The Department of Public Service highlighted FCC rules from 2015 requiring all wireline providers -- including interconnected VoIP -- to give customers the option of buying battery backup lasting eight hours. The Voice on the Net (VON) Coalition also pointed to the FCC requirements, saying additional requirements could be burdensome to providers and increase consumer costs with relatively little public safety benefit.

States and local governments know their areas better than the FCC does, former CPUC member Catherine Sandoval told us. Historic flooding last week in San Jose put resiliency issues top of mind for Sandoval, a law professor at Santa Clara University, she said. “States should be able to decide for themselves what rules make sense based on their local conditions.”

“The FCC will never have to launch a boat or send a deputy through the fire to knock on somebody’s door because the telephone is out,” Sandoval said. “It should be up to the state to decide, ‘We’ve already been there, and we know that it’s important that there’s battery backup.’” Communications and power outages frequently occur together, she said. “Being able to reach people who have VoIP or who have wireless and making sure there’s power backup is absolutely critical.” The FCC didn't comment.

Legal Barriers

In Vermont, wireless and VoIP providers said federal communications law precludes state backup-power mandates.

“Imposing requirements such as minimum backup power standards would be a clear violation of 47 U.S.C §332(c)(3)(A)’s prohibition against state regulation of the terms of wireless market entry (or the ongoing provision of such services),” CTIA commented. The board couldn’t do it under state law, either, because Vermont specifies that the E911 Board has authority over E-911, CTIA said. Federal law also pre-empts state regulation of VoIP, said the VON Coalition, citing the 2004 Vonage decision. It’s impossible to separate the intrastate and interstate components of VoIP, so only the FCC can issue requirements, and the federal agency never granted states authority to require backup power, the coalition said.

NARUC General Counsel Brad Ramsay disagreed that federal law stops the PSB from requiring backup power of either wireless or interconnected VoIP. Commercial wireless is a telecom service, so states can make backup requirements as part of their authority to regulate telecom services to protect public safety, he said. Requiring backup power isn’t entry or rate regulation, as CTIA suggested when it cited Section 332, he said. That statutory section allows for state regulation of “other terms and conditions of commercial mobile services,” including public safety regulations required for all telecom services, he said.

To bolster authority, the board could say commercial wireless services act as a substitute for landlines for a substantial portion of communications in the state, Ramsay said. “The proportion of cord cutters goes up every year as does the Minutes of Use on cell phones (vs. landline),” he emailed. “If they make that finding, and they apply the backup requirements on ‘all providers of telecommunications services,’ then even if someone -- aka a judge or the FCC -- decides it somehow makes sense to equate ‘backup power’ with ‘entry’ regulation -- it does not matter.”

The FCC never formally classified interconnected VoIP, but the commission allowed those providers access to federal USF funds available to telecom services, Ramsay said. He disagreed with the VON Coalition that it’s “impossible” for interconnected VoIP providers to separate intrastate and interstate traffic. The companies appear to separate the traffic to provide E-911 and pay federal USF fees, he said. “Even if you assume for the sake of argument that the legal test -- the so-called impossibility exception -- could apply,” Ramsay said, “then the FCC would at least have to make an active ruling that the Vermont assertion of jurisdiction was not OK.” But the federal agency hasn’t, he said. “There is no credible legal precedent -- and zero support in the federal telecommunications law -- supporting pre-emption in this case.”

Regulation for public safety should be based on function rather than the underlying technology, Sandoval said. “This is a telephone service that people have,” she said. “In an emergency, the state or the city or the county needs to be able to communicate with these people to prevent disaster to that person or that community.”

Some industry players want the Vermont case tossed before getting to the pre-emption or public policy issues. CTIA and Comcast disputed petitioners’ legal standing and urged the PSB to dismiss. “They have not demonstrated any injury, unlawful act or neglect by parties subject to the Board's jurisdiction,” Comcast said. "Before the Board opens an investigation into the alleged unreliability of the E-911 system involving virtually the entire communications industry, considers the promulgation of rules for similar purposes or redesigns the statutory framework for planning and advocacy by the DPS, Petitioners are obligated to demonstrate standing.”

VoIP Debate

The legal fight shows how the VoIP classification debate is “completely divorced from the reality of emergency response,” said Sandoval. “I wish the FCC would come out and convene a meeting with rural sheriffs and police officers who have had to knock door to door because communications is no longer reliable.”

Vermont separately is considering a proposed order declaring that interconnected VoIP is a telecom service subject to state regulation (see 1702160038). Iowa recently declared retail VoIP an information service not subject to state regulation. The U.S. District Court in St. Paul, Minnesota, is weighing a Charter lawsuit against the state PUC for seeking to regulate its VoIP service.

State legislators are watching. The West Virginia legislature is considering a bill to prohibit the state PSC from exercising authority over IP or VoIP services, while the Idaho legislature is considering options presented in a PUC report on VoIP regulation. However, Idaho State Senate President Pro Tempore Brent Hill told us the Senate State Affairs Committee may ask the PUC to formally present the report and answer questions, but he doesn’t expect his state to do any legislation on the subject this session.