FCC Does Right (First) Thing On Verizon Request To Make Voice Link On Fire Island Permanent

For those following the summer sitcom That Darned Voice Link, it looks like the FCC has now decided to order new episodes for the fall season.


Short version: the Federal Communications Commission (FCC) Wireline Competition Bureau issued a public notice taking Verizon’s Section 214(a) request to discontinue copper-based TDM service on Fire Island, NY and Mantaloking, NJ off the “fast track” streamlined process on the grounds that it needed more information before it could properly consider the request. Had the FCC not acted before August 27, the request would have been automatically granted.


The Bureau made it clear that this was not in any way a determination on the merits of the request. But in light of several substantive filings raising questions about whether substituting Voice Link for copper would (in the words of the statute) “reduce, or impair service to a community” (including requests from both the NY Public Service Corporation (PSC) and the NJ Board of Public Utilities (BPU) to hold off until they complete their state level inquiries), the Bureau wanted more information to properly consider the request.Consistent with this, the Bureau also sent Verizon a request for additional data that covers the areas you would hope the FCC would want to know about before deciding whether substituting Voice Link for copper lines “impairs” service to the local community.


As decisions go, the decision to take Verizon’s 214(a) off fast track and thoroughly consider all aspects and implications of this first ever complete replacement of traditional copper service with fixed wireless seems like a fairly obvious no brainer. To the contrary, simply allowing such a radical change in service to happen by default should be unthinkable. Of course, it helps that the right thing to do here (taking this off fast track) also pushes the controversial decision down the road until Tom Wheeler can get confirmed as FCC Chair. Nevertheless, in this lamentable age of dysfunction in D.C. (and given some initial stumbles on this at the beginning), it’s nice to see routine things happen without any needless drama or last minute hiccups.


I unpack and give some analysis of what probably comes next below . . . .


For those just tuning in: Superstorm Sandy destroyed a lot of copper phone lines in Verizon territory. In two barrier island communities — Fire Island, NY and Mantaloking, NJ — Verizon decided it would not rebuild the copper lines or replace copper with fiber. Instead, Verizon offered residents a new service called “Voice Link.”  Because copper-line voice service provided by Verizon is still a public utility/Title II telecommunications service, Verizon needs permission from state regulators and the Federal Communications Commission (FCC).


After a modest delay while Verizon and the FCC worked out how to handle the details of filing in this unprecedented situation, Verizon filed its request to to the FCC to discontinue copper-based TDM service (aka traditional copper phone service). We in the trade call a request to discontinue a Title II telecom service a “214(a)” because the requirement comes from Section 214(a) of the Communications Act (47 U.S.C. 214(a)). As the FCC explained when it put Verizon’s request out for public notice and comment,  the default on these requests is that they are automatically granted 60 days after the public notice unless the FCC affirmatively says it will take the request off the “fast track” and dump it in regular processing.


Needless to say, granting this by default would have been not merely ridiculous, it would have seriously compromised the whole “shutting down the traditional phone system and replacing it with IP-based systems and wireless” thing. The only reason why AT&T even filed its Petition last November and why it keeps pushing the FCC for permission to do “pilot programs” is because it needs permission under Section 214(a). If the FCC had set a precedent that you can turn off copper in a community and get “fast track” approval, then AT&T would have stopped wasting time playing by the rules and just started converting its systems over to whatever the heck it wanted.


Happily, this did not happen. The FCC sensibly said something this big needs more than the usual application.



Reading the Tea Leaves: What The FCC Did and Didn’t Say.


The FCC is in a funny place on this right now. On the one hand, the 214(a) process is really not set up for this sort of thing. Services usually get discontinued when nobody is using them anymore, or if they involve a competitor to the incumbent local exchange carrier (ILEC). Until now, no one imagined that a disaster might destroy a portion of the network and the ILEC serving the area would not (eventually) rebuild the network and resume its previous service offering.


The FCC public notice carefully avoided mention of any major issue relating to the so called “Technological Transition of the Phone System” (aka “the End of the PSTN,” the “IP Transition,” or “that thing that Harold Feld and Bruce Kushnick are always going on about”). Instead, it simply recited that lots of folks had raised questions about whether Voice Link adequately substitutes for the pre-Sandy copper line service and therefore the FCC needed more information before making a determination. (For what people on Fire Island think of Voice Link, see this recent article from Stop the Cap. Spoiler Alert: the title of the article is “Everyone Who Has It, Hates It.”)


I read this as the Bureau striving for minimum drama (with the hopes of keeping political backlash to whatever decision they make at a minimum) and preserving its options. No one wanted this situation or is particularly happy about it. Verizon found itself in a hard spot needing to chose between spending a boatload of money to replace the copper line service it regards as obsolete or deploying Voice Link to the community whether subscribers liked it or not and whether it actually did the things traditional copper service does. I think VZ made the wrong choice, and have been highly critical of their decision to force Fire Island residents to take Voice Link or do without a landline. Worse for Verizon, this is turning into a total public relations disaster, jeopardizing their entire copper replacement plan.


From my perspective, this is a lousy way to make what is likely to be a major precedent on what does or doesn’t constitute an acceptable replacement for traditional copper service. So PK filed a motion to have the 214(a) moved off fast track for that reason alone. Verizon responded to the PK motion that the request to end copper service on Fire Island and Mantolocking has NOTHING TO DO with the broader policy questions around the whole PSTN transition thing. Hurricane Sandy was a one-off never-to-be-repeated tragedy that sets no precedent for anything and Public Knowledge ought to be ashamed of itself for thinking that this sets any kind of “precedent thingy” for any other discontinuance of telephone service anywhere else or ever — so there!


The Bureau Notice moving Verizon’s 214(a) does not even mention the PK Motion or Verizon’s reply. Clearly, the Bureau does not want to deal with the question of what kind of precedent this does or doesn’t set and its relationship to the broader IP Transition at this stage. Again, this is consistent with a “minimize the drama, gather information, and let incoming Chairman Wheeler make the call with a full Commission rather than have an acting Chairwoman with a rump Commission make the call.”  Which, I hasten to add, is a very sensible approach. While I am often quite critical of the FCC’s reluctance to tackle the hard questions, there are times when you want to chew things over carefully and make sure you have political cover to handle whatever backlash comes from a decision either way.



Bureau Questions Also Focus On Specifics Raised In Comments.


Likewise, the request for further information focuses on questions raised in the record and does not wander into broader policy issues. Also, in asking the questions, the Bureau made it clear it is not pre-judging what standards it will apply. For example, there are a lot of features that copper supported that Voice Link doesn’t support. (Bruce Kushnick has a chart here.) Public Knowledge (and a number of others) argue that the inability to do these things goes into the question of whether discontinuing copper service impairs service to the community. Verizon argues it doesn’t need to provide services like DSL or support things like fax machines because they are not covered by Verzon’s official tariff with the FCC.


The FCC gave no indication on where it likely will or won’t go on this issue. The FCC asked instead for a detailed list from Verizon on differences between the services. Similarly, competing phone companies raised the issue of whether Verizon will continue to provide interconnection and terminate calls under Sections 251 and 252 of the Communications Act — although Verizon has been cagey about whether it regards Voice Link as a Title II telecommunications service and therefore subject to these requirements by law (Verizon has said it will “voluntarily comply” with the obligations it had under traditional copper line service). Again, the FCC gave no indication how it would decide on the issue, but asked Verizon to provide specific information on how it intended to comply with these obligations — voluntarily or otherwise.


Finally, and perhaps most basically, the FCC asked for information on Verizon’s wireless capacity and its reliability measures for voice quality and 9-1-1 completion. One of the biggest complaints from Fire Island residents is that when tourists come on the weekend and the population of the Island goes from 500 to 50,000, the cell system gets overloaded and call quality goes to Hell. This is one of the reasons residents kept their landlines in the first place. Verizon has been quite indignant about accusations that call quality and reliability for Voice Link (and its wireless network generally) are anything less than sterling. (Although, as I noted before, their calls to radio shows defending their reliability have an embarrassing tendency to drop. You can listen to a more extended clip of Verizon’s Tom Maguire speaking on Voice Link in this NPR story and judge for yourself.)


Even disregarding any other questions, the question of whether the dial tone provided works consistently and at what voice quality clearly goes to the question of whether substituting Voice Link for copper “impairs” service to the community. The Bureau asked for detailed information for how Verizon backs up its determination that it has sufficient network capacity to meet the need  and how it measures quality and reliability. But the Bureau gave no indication on what standard it will ultimately apply.



No Short Term Impact.


Finally, it’s important to note that the Bureau action has no immediate impact for Verizon’s Voice Link deployment, or on the ongoing state-level processes. By keeping its request for data focused on facts, without indicating how it will resolve any of the outstanding legal or policy questions, the FCC has avoided any accusation that it is pre-judging things or influencing the state processes.


In short, the only thing we know for sure at this point is that we will keep debating Verizon’s Voice Link deployment on Fire Island into the fall. But that’s good enough for now. “Sufficient unto the day is the trouble thereof.” The FCC did what it needed to do, with a minimum of fuss and drama. It did so in a way that keeps all options open and leaves the big decision to the incoming Chair and the full Commission.


Stay tuned . . .