BEFORE THE
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Investigation into Voice over Internet : Protocol as a Jurisdictional Service :
: Docket No. M-00031707 :
___________________________ OFFICE OF CONSUMER ADVOCATE’S
COMMENTS
___________________________
Philip F. McClelland
Senior Assistant Consumer Advocate Shaun A. Sparks
Assistant Consumer Advocate Counsel for:
Irwin A. Popowsky Consumer Advocate Office of Consumer Advocate
555 Walnut Street, Forum Place, 5th Floor Harrisburg, PA 17101-1923
(717) 783-5048 Dated: July 1, 2003
I. Introduction
The question in this investigation is this: should the Commission exercise its jurisdiction over telephone service and recognize that Voice over Internet Protocol service providers offer public utility service in Pennsylvania? The OCA would answer in the affirmative because ensuring adequate and reasonable telephone service is the primary purpose of the
Commission’s jurisdiction over telephone service.1 The technology through which wireline providers deliver telephone service is a secondary concern.
It is essential that the Commission evaluate all methods of delivering telephone service in a forward-looking manner. To do otherwise risks allowing technology to cause the Commission to forsake its legal responsibilities. This particular investigation concerns VoIP, and it appears that the Commission employs the term “VoIP” in a general sense, as a short- hand for telephone service delivered via digital packet technology. It is important to note that there are multiple methods with which to provide telephone service via packet technology. While many of these methods are similar in terms of packet technology, they may be functionally different, and therefore, could be subject to random categorization for regulatory purposes. That outcome would not be desirable; the Commission should not seek to regulate the various
technologies though which telephone service is delivered, but instead should regulate the ultimate telephone service regardless of how it is delivered to consumers.
For example, it would appear that the Commission would group SIP, H.323, and packetcable all under the same umbrella heading of VoIP. Regarding the delivery of telephone service, this grouping is workable. All these different methods are capable of delivering
telephone service to end-users. That is true even though technically speaking; Session Initiation
1
Protocol (“SIP”) is different from H.323, which is different from packetcable. However, all these methods may be used to provide telephone services via a packet technology. VoIP is the delivery of telephone service, and not the delivery of technology. The Commission must focus on telephone service, and not the technology that providers use to deliver that service. This approach is essential because the General Assembly has not charged the Commission with regulating telephone service based upon the technology used. Such an approach is all the more important where VoIP providers will originate calls that terminate on the Public Switched Telephone Network (“PSTN”) and receive calls that originate on the PSTN.
The Commission regulates telephone service because it is affected with the public interest; the Commonwealth depends on telephone service that is functional and affordable. Technology is merely the method used to arrive at the goal of adequate and reasonable telephone service. Over the 100 plus years of telephone service in Pennsylvania, various technologies have developed, subsequently become obsolete, and replaced by other technologies. By remaining focused on the ultimate service, and not on the electronic protocols that provide that service, the Commission can ensure that the Commonwealth will have adequate telephone service well into the future.
Likewise, a new method of delivering the telephone service does not alter the fact that the Commission’s focus must remain upon assuring universal access to reliable and
affordable telephone service. It is inevitable that technology will change, and that the pace of change will accelerate. In this rega rd, a technology-based regulatory approach will ultimately fail because regulation will constantly lag technology. Instead, the Commission should focus its attention on the core requirements, the essentials, of adequate and reasonable telephone service, regardless of the technology used to provide that service.
The following responses to the Commission’s questions in this investigation suggest that the Commission should regulate those services used to convey or transmit messages or communications to the public for compensation, regardless of which technology that a
provider chooses to deploy those services.
II. COMMENTS
Defining VoIP Service
1. How do you define VoIP service?
Voice over Internet Protocol is a generic name for the real-time transmission and reception of voice messages using Internet Protocol logic over either a private Internet network, the public Internet network, or the public switched telephone network, either singly or in combination, whereby discrete packets of digital information are routed in a transmission path that may not be fixed over a dedicated circuit for the entire transmission path.
When the OCA uses the acronym VoIP in these Comments, it intends the above definition. The Commission should note that there are various protocols that may be used to provide VoIP services. Therefore, a protocol-based definition is not desirable. For example, VoIP services may be provided through protocols such as Session Initiation Protocol (“SIP”) or H.323 (and its related protocols of H.248, IPDC, SGCP, or Megaco), or via packetcable.2 For example, even though Vonage is commonly referred to as a VoIP provider, Vonage employs SIP to deliver its services as opposed to H.323, one of the original VoIP protocols.3
2
Jonathan D. Rosenberg and Richard Shockey, The Session Initiation Protocol (SIP): A Key Component for Internet Telephony, 8 Computer Telephony 6, 132 (June 14, 2000), at
The OCA cautions against using any regulatory definition that focuses on the method used to achieve IP telephony that may arbitrarily place some providers outside the definition, and others inside, even though those providers offer the exact same services to end user customers. In addition, a protocol-based definition will quickly become outdated as technology advances. A protocol-based definition may also create regulatory uncertainty as a mere upgrade in facilities and change of protocols may cause entities to become public utilities, or potentially exempt utilities from the jurisdiction of the Commission. Rather than look to any particular protocol or transmission method for defining a public utility, the OCA suggests that the Commission instead focus on the ultimate nature of VoIP service, i.e., what consumers are actually doing with VoIP.
As an example, it has come to the attention of the OCA that Sprint has announced that it will begin using packet technology to transmit calls between central offices.4 If the Commission were to decide that VoIP communications were outside of its jurisdiction, would that then remove Sprint from the Commission’s jurisdiction? Would it be subject to the Commission’s assessments? Would Sprint continue to be able to receive Pennsylvania USF revenues?
Indeed, this definitional reasoning is employed at the federal level. In its 1998 report to Congress, the Federal-State Joint Board wrote that “[w]e are mindful that, in order to promote equity and efficiency, we should avoid creating regulatory distinctions based purely on technology. Congress did not limit "telecommunications" to circuit-switched wireline
3
Vonage, Vonage Becomes First Broadband Telephony Provider to Activate 30,000 Lines (June 16, 2003), available at http://www.vonage.com/corporate/releases/pr_06_16_03.php.
4
Mark Berniker, Sprint Migrating to Packet-Switched Network, InternetNews.com (May 27, 2003) available at http://www.internetnews.com/wireless/article.php/2212321.
transmission, but instead defined that term on the basis of the essential functionality provided to users.”5
2. Are there different types of VoIP service?
Yes. There are many different types of VoIP service. The distinguishing factor is the method of transmission – i.e., SIP or H.323 or packetcable.6 While it is important that the Commission recognize that there are different methods of transmitting VoIP telephone calls, the Commission should not establish a regulatory architecture based upon protocol distinctions. Again, the Commission should regulate the reasonableness and adequacy of telephone service in the ultimate sense, and refrain from regulating the various technological configurations that providers may use to provide telephone services.
3. With the different types of VoIP service, is it the technology, i.e., the type of network used for transport that distinguishes them? Do you agree with the differences in CommWeb's definitions of ''VoIP'' and ''IP telephony'' used in footnote two below? Please explain.
First, it is important to note that this question assumes that there are different types of VoIP service. For regulatory purposes, that may not be the case. Next, Internet Protocol, or “IP” Telephony, is a synonym for VoIP. CommWeb’s attempt to delineate a private/public distinction within those terms is unnecessary and confusing. The two terms have the same meaning.
It is important to note that the type of network used to transmit VoIP does not alter the fundamental character of VoIP service, which is voice communication between and
5 In the Matter of Federal-State Joint Board on Universal Service, FCC 98-67, ¶1 (April 10, 1998). 6
Jonathan D. Rosenberg and Richard Shockey, The Session Initiation Protocol (SIP): A Key Component for Internet Telephony, 8 Computer Telephony 6, 132 (June 14, 2000), at
http://www.computertelephony.com/article/CTM2000060850019.html. (While some of these protocols are similar, they are not identical. This raises questions of using any of them to define VoIP service.)
among calling parties utilizing a packet-based logical transport mechanism for some portion of the transport path.
Provider and End User Experience with VoIP Service
4. As a provider, do you offer VoIP service to the public in Pennsylvania or in other
jurisdictions? If so, what type of VoIP service do you provide and where? If not, do you intend to offer VoIP service to the public in Pennsylvania or in any other jurisdiction? If so, what type of VoIP service do you intend to offer and where?
N/A
5. As a provider, have you conducted or do you intend to conduct any VoIP service trials in Pennsylvania or elsewhere? Please provide the details of any trials (when the trial occurred, who participated, the results, et al.) that have been conducted in Pennsylvania or in any other jurisdiction or that you pl an on conducting in Pennsylvania.
N/A
6. As a user, have you participated in or been solicited to participate in a VoIP service trial? If so, what was your experience? Did you retain your wireline and/or wireless service while using VoIP service?
N/A
7. From the end user's perspective, what are the advantages, if any, of VoIP service as compared to traditional wireline and/or wireless communication voice services? What, if any, are the disadvantages?
It is clear that lower prices are the chief advantage of VoIP service. On its website, Vonage offers unlimited local and regional toll calling plus 500 long distance minutes for $25.99 per month, inclusive.7 Vonage stresses that it is a low-cost telephone service provider by offering customer testimonials that state that Vonage has “no long distance charges” and is a “good way to save money.”8 An additional testimonial states “I was looking to try a new phone service as my Verizon bill was too high. Then I cut off Verizon entirely after I started using
7
Vonage available at http://www.vonage.com (last visited June 27, 2003).
8
Vonage.”9 In addition, Vonage offers a plethora of vertical services to its customers for that same flat-rate price. For example, it offers voicemail, call waiting, and call forwarding as part of its standard package.10 Vonage is clearly offered as a substitute for POTS telephone service.
However, VoIP providers are different in other respects. VoIP carriers do not make contributions to the 911 emergency dialing systems, nor do they collect universal service support fees. In addition, it would appear that they tend to collect few taxes. Vonage collects only federal excise taxes and in some instances, state tax.11
VoIP providers also offer virtual area codes. That is, a customer in Harrisburg may obtain a Manhattan telephone number, and all calls from Manhattan will be local for that number. While this feature offers great benefit to consumers, it also may present problems in regard to 911 emergency dialing, and may pose problems with proper cost allocations under the current access charge and jurisdictional separations regime.
Another advantage is the portability of VoIP equipment. In the case of Vonage, for example, a Vonage customer may carry their Vonage analog to digital converter (a Cisco 186 ATA, which is about the size of a portable CD player) with them to another state or even to a foreign country. All that is necessary for that customer to place and receive calls is to find a broadband Internet connection. Thus, using our Harrisburg example, once plugged in, that customer could place and receive phone calls from her Harrisburg telephone number while she is physically located in a hotel in Hong Kong. Calls that originate in Harrisburg, but terminate in
9 Id. 10 Id. 11 Id.
Hong Kong would be treated as local to those Harrisburg callers. Thus, while not “mobile” in the same sense as CMRS, VoIP appears to be portable.
However, the PUC should be aware that VoIP providers may not offer true 911 emergency services. Telephone consumers, and for that matter, the public in general, have come to expect 911 services to operate from any telephone, and it is not clear that these services will function at all over a VoIP service.
It also appears that VoIP service may lack privacy protection for customer communications, although the OCA does understand that intercepting VoIP voice
communications would be somewhat difficult. As an example, VoIP provider Vonage requires that consumers waive privacy expectations as a condition of receiving service from Vonage.12 In addition to other privacy protections contained in Pennsylvania law, the regulations of the
Commission found at § 63.131 et seq. safeguard consumer privacy in regard to customer communications.
There also appears to be a total lack of consumer disconnect and termination protections provided by some VoIP providers. If VoIP providers need not adhere to the
guidelines of the Public Utility Code, customers may not have regulatory protections otherwise available. For example, in its customer service agreement, VoIP provider Vonage reserves the right to terminate service at will, without explanation or cause. In addition, Vonage provides that if the customer chooses to terminate Vonage service, the customer is required to pay a $39.00 disconnect fee.13 Vonage also states in its customer service agreement that, if the customer’s
12
Vonage: Terms of Service, §1(c), available at http://www.vonage.com/feature_terms_service.php (last visited June 27, 2003).
13
Vonage: Terms of Service, §1(c), available at http://www.vonage.com/feature_terms_service.php (last visited June 27, 2003).
account is not paid in full, then Vonage will not port a customer’s number to a new provider.14 The Commission should note that the regulations found in Chapter 64 generally prohibit
certificated carriers terminating residential service at will.
VoIP providers cannot provide service in the event of power outage. Thus, unlike traditional telephone service, VoIP will not operate whenever electric service is interrupted. 8. Does VoIP service require access to the Network Interface Device (NID) or other demarcation device that is typically installed at the customer's premises? If not, what type of equipment is installed at the customer interface to provide VoIP service and how is such equipment powered?
In regard to VoIP providers, it does not appear that VoIP service requires access
to the NID. See the OCA’s answer to question 9, infra, for equipment and power configurations.
9. What type of equipment does a VoIP end-user need to make calls? Is such equipment commercially available through only the VoIP provider or is it available elsewhere as well?
The underlying requirement for VoIP service is a broadband Internet connection and a modem. The type of broadband connection is immaterial. VoIP will function over DSL and cable modem service. The OCA understands that VoIP will also function over a Broadband Wireless Fidelity (“Wi-Fi”) link.
Next, a router is required if the consumer intends to use a computer on the same broadband connection as VoIP service.15 The use of a router allows packets or data to flow to the appropriate device. VoIP provider Vonage sells routers to its customers over its website, www.Vonage.com.
14
Id. at §1(i).
15
Vonage: Learning Center, available at http://www.vonage.com/learn_howitworks.php (last visited June 27, 2003).
Next, an analog to digital telephone converter is necessary. This device serves as the link between analog CPE and the digital signal required for VoIP. This is situated between the router and the telephone handset.16 The OCA understands that any telephone handset will interface with the analog to digital converter provided by Vonage. Household current powers all these devices, and unlike the PSTN, in the event of a power outage, VoIP service will fail.
While these devices may be available elsewhere, customers are likely to obtain them from the customer’s VoIP provider. In the case of Vonage, the Vonage website indicates that Vonage programs the converters it provides to its customers such that the converters are essentially plug and play.17
Commission Jurisdiction to Regulate VoIP Service
10. Are VoIP services the ''conveying or transmitting messages or communications by telephone or telegraph or domestic public land mobile radio service for the public for compensation'' pursuant to 66 Pa.C.S. § 102? Please explain.
Yes. VoIP services convey or transmit messages or communications by telephone service for the public for compensation pursuant to 66 Pa. C.S. § 102. Also, in regard to being a public utility, VoIP providers fall under the definition of public utility as established in section 2901 of the Code.18
First, VoIP service providers like Vonage are actively marketing VoIP telephone service to the public for a fee. VoIP service is not “free” or otherwise without cost to consumers. Therefore, it is being sold to “the public for compensation” within the purview of section 102.
16 Vonage provides the customer with a programmed Cisco 186 ATA (Analog Telephone Adapter). This
device changes the electrical voice signal delivered from the handset from analog to digital thus enabling the customer to use the web to transmit calls. The ATA device is different from a router which provides the ability to link or share devices among computers or networks.
17
Vonage: Learning Center, available at http://www.vonage.com/learn_need.php (last visited June 27, 2003).
18
Next, VoIP is the real-time transmission and reception of voice messages. In terms of its core function, it is no different from POTS. There can be no debate that the real- time communication of voice by VoIP providers is the ''conveying or transmitting messages or
communications.”
Next, VoIP service is clearly delivered “by telephone.” In fact, Vonage suggests that its VoIP service may be purchased as a substitute for traditional POTS. On its website, Vonage writes that “Vonage DigitalVoice is an all- inclusive home phone service that replaces your current phone company. This is like the home phone service you have today - only better!”19 Vonage describes itself to investors are being telephone service.20
Consumers that choose VoIP service will continue to use their telephones in a manner that is identical to their traditional telephone service. When picking up a VoIP handset, a consumer hears a dial tone, and dials in the traditional manner. A person without knowledge that a particular telephone was a VoIP telephone would have no outward indication that her call was being transmitted via packets instead of through a POTS based dedicated circuit.21
11. What is the relationship, if any, between VoIP services and mobile domestic radio telecommunications service'' exempted from PUC regulation at 66 Pa.C.S. § 102? Please explain.
There is no relationship between the two. Although these two services share some similarities in that either may serve, to some degree, as a substitute for POTS, there is no relationship per se between ''mobile domestic cellular radio telecommunications service” and
19 Vonage, available at http://www.vonage.com/product_tour.php (last visited June 27, 2003). 20
Vonage: Press Release. VoIP Conference Call with Matthew Bartlett of Banc of America Securities and Jeffrey Citron CEO of Vonage (May 20, 2003) (available at http://www.vonage.com).
21
The OCA also understands that various types of VoIP may also be used to deliver two -way voice service through equipment other than telephones. Through these comments the OCA only addresses VoIP service through telephone equipment.
VoIP service. This does not mean, of course, that a call originating on a cellular telephone cannot terminate on a VoIP telephone, or vice- versa.
Vonage equipment, while not mobile, is portable. That is a Vonage customer could carry their Cisco 186 ATA with them to another state or even to a foreign country. All that is necessary for that customer to place and receive calls is to find a broadband Internet
connection. Thus, while not “mobile” in the same sense as a CMRS, VoIP appears to be only portable.
Mobile domestic radio telecommunications service allows consumers to place calls from special mobile radio equipment, e.g. cellular handsets, anywhere within a served territory provided there are adequate serving towers. VoIP does not use radio technology and requires broadband Internet access to function.
In regard to how those similarities might exempt VoIP from the jurisdiction of the Commission, while mobile domestic cellular radio telecommunications services are now
specifically exempted by statute, VoIP is not. The General Assembly has specifically exempted “mobile domestic cellular radio telecommunications service” at 66 Pa. C.S. §102 “Pub lic Utility” (2) (iv). If the General Assembly wishes to create specific exemptions, it is clearly able to do so. The OCA cautions that the Commission may not apply public utility exemptions that have not been created by the General Assembly.
12. Or, is VoIP service an ''information service'' pursuant to 47 U.S.C. 153? If so, what are the regulatory implications of such a classification and how do you reconcile it with the fact that VoIP service originates as voice and terminates as voice?
VoIP service is not an “information service” as that term is defined at 47 U.S.C. 153. That section of the ’96 Act provides that:
[t]he term ‘information service’ means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any such use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
VoIP service does none of the things addressed by that portion of the statute describing the characteristics of an information service. In fact, to the extent that VoIP would exhibit any of the characteristics of an information service, it would appear that VoIP service is expressly
exempted from the definition of an “information service” because any transforming, processing, retrieving, or utilizing of information that a VoIP service may do is done expressly to manage, control, or operate its telecommunications system or to manage its telecommunications service. That is true because the analog to digital conversions, the routing of packets, and the databases used for IP address-to-NANP number conversions (and vice- versa) are all designed to deliver voice communications in a manner that is transparent to the dialing or dialed party. In fact, vendors of VoIP service equipment devote substantial resources to ensure that VoIP service is wholly invisible to those persons engaged in a conversation over VoIP service.
The fact that a telephone call completed over a VoIP service is transparent to the retail end user (VoIP provider Vonage makes much of this fact in its marketing materials) argues for VoIP service to be a “telecommunications service” under the ’96 Act. First, the ’96 Act defines a telecommunications service as “…the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” 47 C.F.R. §3 (51). The Act defines telecommunications as “…the transmission, between or among points specified by the user, of information of the user’s
choosing, without change in the form or content of the information as sent and received.” 47 C.F.R. § 3 (48).
In its Cable Modem Order, the FCC wrote that the statutory definitions and distinctions between “information services” and “telecommunications services” rest on function, not on facilities.22 The FCC developed that reasoning from the Universal Service Report where it noted that Congress provided specific direction that the classification of a provider should not rely on what type of facilities a provider used, but instead on the nature of the service that the provider offers to consumers.23 To distinguish cable modem service as an “information service,” the FCC wrote that “[w]e are not aware of any cable modem service provider that has made a stand-alone offering of transmission for a fee directly to the public…”24 VoIP services may thus be neatly distinguished from information services precisely because VoIP services are a stand-alone offering of transmission for a fee directly to the public. In addition, VoIP services cannot be both a “telecommunications service” and an “information service” because those two
categories are mutually exclusive.25 VoIP service is not an “information service” because it does not fit that definition as discussed by the foregoing. Therefore, VoIP services must be
“telecommunications services.”
The Federal-State Joint board on Universal Service has also addressed the distinction between “information services” and “telecommunications services” in regard to IP Telephony. That report stated “…that certain forms of ‘phone-to-phone’ IP telephony services
22 Internet Over Cable Declaratory Ruling, FCC 02-77, ¶35 (March 15, 2002). 23 Id. at ¶35, n. 140. 24 Id. at ¶40. 25 Id. at ¶41.
lack the characteristics that would render then ‘information services’ within the meaning of the statute, and instead bear the characteristics of ‘telecommunications services.’”26
VoIP service neatly and easily fits the definition of a telecommunications service because it is the transmission of voice communications, without alteration, and in real time, between the dialing party and the dialed party, for a fee. The fact that VoIP providers
accomplish this by placing call management CPE at one end of the transmission is irrelevant to the determination that VoIP is a telecommunications service.
In addition, VoIP service providers are not the equivalent of Internet Service Providers (“ISP.”) The most obvious reason that this is true is because VoIP providers depend on the customer having broadband access through an ISP to function at all.27 Next, in regard to the transmission of voice messages, VoIP providers do none of the things that ISPs do in regard to digital information. They provide no content processing, information storage, etcetera, in regard to the transmission of voice messages. In point of fact, the VoIP providers go to great lengths to make certain that their services are totally transparent to the end user, as discussed above. Thus, VoIP providers cannot be placed within the same category as ISPs.
Regarding protocol processing, the fact that such processing takes place incident to placing a VoIP telephone call does not render VoIP telephone service an information service. The Report to Congress stated that “[t]he protocol processing that takes place incident to phone-to-phone IP telephony does not affect the classification of the service, under the Commission's current approach, because it results in no net protocol conversion to the end user.”28
26 In the Matter of Federal-State Joint Board on Universal Service, FCC 98-67, ¶14 (April 10, 1998). 27
See Vonage: Learning Center, available at http://www.vonage.com/learn_need.php (last visited June 27, 2003).
28
Finally, the Report to Congress reasoned that:
We have singled out IP telephony services for discussion in this Report. As discussed above, users of certain forms of phone-to-phone IP telephony appear to pay fees for the sole purpose of obtaining transmission of information without change in form or content. Indeed, from the end- user perspective, these types of phone-to-phone IP telephony service providers seem virtually identical to traditional circuit-switched carriers. The record currently before us suggests that these services lack the characteristics that would render them information services within the meaning of the statute, and instead bear the characteristics of telecommunications services.29
Thus, it is clear that VoIP phone-to-phone communications are not “information services,” but instead are “telecommunications services” that are properly regulated by the Pennsylvania Commission.
13. Have any other states addressed state jurisdiction over VoIP service? Please cite and discuss any proceedings that have concluded and/or are currently pending in other states that address or relate to state jurisdiction to regulate VoIP service.
Yes, other states have addressed this issue.
In regard to other states, the Public Utilities Commission of the State of Colorado has initiated a proceeding to investigate the nature of VoIP service similar to the instant
proceeding.30 That proceeding is in its initial stages and has yet to produce any decisions or reports.
The Florida Public Service Commission conducted an undocketed workshop on VoIP issues in January of 2003.31 It appears that the Florida Commission has not issued any decisions regarding the regulatory classification of VoIP services.
29
Id. at ¶101.
30
In The Matter of the Investigation into Voice over Internet Protocol (VoIP) Services , Docket No. 03M-220T (May 21, 2003).
31
Florida Public Service Commission, Voice Over Internet Protocol Staff Workshop, January 27, 2003 available at http://www.floridapsc.com/industry/telecomm/voip.
The Nebraska Public Service Commission has conducted workshops on VoIP and related issues in the recent past, but it too has not produced any definitive materials
regarding its classification of VoIP services.32
The New York Public Service Commission has reasoned that VoIP services are telecommunications services by virtue of the fact that that the FCC concluded that VoIP telephone services have a simple, transparent transmission path and do not offer enhanced functionality, and thus, were telecommunications.33 The NY PSC also noted the FCC’s comments that the some types of telecommunications that involve protocol processing provide no net protocol conversion to the end user, and thus, those services are not information services, but are telecommunications services.34
14. Assuming arguendo that the Commission possesses jurisdiction over VoIP service, should it exercise such jurisdiction? Please explain why or why not.
The answer is yes. As an initial matter, The Commission cannot decide to waive its statutory role. If the Commission has jurisdiction over VoIP services, or over some VoIP service providers, it must regulate those entities in some manner.35 The Commission cannot regulate some of the entities under its jurisdiction and ignore others. Section 501 of the Code clearly establishes that it is the duty of the Commission to regulate those entities that fall within the statutory definition of a public utility.36 In regard to telephone utilities, Title 66 section 102
32
Communications Technologies and Convergence Issues , Application No. C-2067/PI-29 (NE P.S.C. June 22, 1999).
33 Frontier Telephone of Rochester v. US DataNet Corp, No. 01-C-119, 2002 WL 31630846, at 6 (NY P.S.C.
May 31, 2002). 34 Id. 35 66 Pa.C.S. §510. 36 Id.
clearly defines which providers of telepho ne services are public utilities, and that definition is echoed in section 2901 of Title 66. In addition, section 3009(b) further defines the role of the Commission in regard regulated telephone utilities. The Commission cannot simply refrain from regulating those entities that it is under a statutory obligation to regulate in the public interest. Thus, the answer to this question cannot be anything other than an unequivocal yes.
Aside from the above, the Commission should exercise jurisdiction over VoIP service because it is in the public interest to do so. The Commission must protect the public interest in regard to essential services. The Commission cannot shy away from exercising its jurisdiction over telephone services like VoIP just because those services are offered in
conjunction with the Internet or some other technology. Although there is a general reluctance on the part of regulators to subject the Internet to regulations, there is no justification to refrain from regulating local telephone service because it may use some IP functionality. Where VoIP service providers seek to function like traditional telephone service providers, the VoIP providers must also bear the same public obligations of traditional telephone service providers.
VoIP service, which is held out to consumers as a substitute for traditional telephone service is not a “new” service. In fact, it is a new way to deliver Plain O ld Telephone Service (“POTS”). While it is true that VoIP service may come equipped with a host of vertical services, no customer could or would purchase those services without the underlying basic telephone service component. VoIP service is a telephone service of the type that the
Commission is obligated to regulate and has regulated for years. VoIP service is no less affected with the public interest than any other regulated telephone service.
VoIP service is simply another means of offering local, regional toll, and long distance service to Pennsylvania’s telecommunications consumers. VoIP service offers an
alternative to ILEC telephone service to those consumers with access to a broadband connection. The numbers of consumers with access to broadband connections, or something like what we now call broadband, will grow over time. That growth favors VoIP-type services becoming substitutes for traditional telephone service.
The Extent of Commission Jurisdiction Over VoIP Service
15. Would a VoIP service provider be subject to the same certification and tariff
requirements that exist for traditional wireline carriers? Would a VoIP provider be required to file with the Commission for entrance into the market as a CLEC or other authority?
The legislature has already determined that it is unlawful for a public utility to offer, render, furnish or supply service without first obtaining a certificate of public convenience from the Commission. 66 Pa. C.S. §1101. In addition, the legislature requires all public utilities to file tariffs with the Commission stating the rates they intend to collect for their services. 66 Pa. C.S. §1302. This matter is settled law in Pennsylvania.
VoIP providers should be subject to the same certification and tariff requirements that exist for CLECs and resellers. First, VoIP providers should be certificated because those providers fit the definition of a regulated utility within sections 102 and 2901, 66 Pa. C.S. §§ 102, 2901. Next, on a practical level, VoIP providers most closely resemble CLECs or resellers. Finally, VoIP providers should be certificated because the Commission cannot engage in
effective market monitoring if it has no idea what competitors exist, what those competitors are doing, and what charges they apply for their services.
VoIP providers, like Vonage, for example, are functionally the equivalent of a CLEC. As far as the type of regulation that should be applied, OCA suggests that VoIP providers can be regulated similarly to how CLECs are regulated. The OCA will discuss this issue further below.
More important, however, is that the Pennsylvania Commission has and does exercise state jurisdiction over VoIP providers. Thus, there is no question of whether the Commission should now begin exercising that jurisdiction because it already has done so. The question now is should the Commission exercise that jurisdiction in a uniform fashion to all providers of regulated services, and the answer cannot be anything but yes.
An example of this Commission’s exercise of state jurisdiction over an IP Telephony provider is the Application of BlueStar Networks. Through reference to “other new entrants” in the Bluestar Order, the Commission has, to some degree, already determined that VoIP providers must register with the Commission as CLECs.37
In 2000, BlueStar applied for certification as a CLEC to provide only data services via IP technology over DSL broadband connections.38 BlueStar had no embedded hardware for providing traditional voice services, and did not intend to offer voice services. Therefore, in its application, Bluestar requested that the Commission exempt it from various regulatory requirements that apply to voice grade service, like universal service funding for example.39 The Commission denied BlueStar’s application, but did provide provisional authority to Bluestar cond itioned on Bluestar’s revision of its tariff consistent with the Commission’s Order.40
The Commission found that “waiver is not appropriate.”41 The Commission wrote that “…a CLEC certificate offering data services only should not be interpreted as
37
Bluestar Networks, Inc., 94 Pa. P.U.C. 407, 409 (August 17, 2000).
38 Letter-Petition of BlueStar Networks, Inc. for Waiver of Certain Tariff Requirements Pertaining to
Voice-Grade Service, 2000 WL 33962806 at 3 (April 3, 2000).
39
Id.
40
Bluestar Networks, Inc., 94 Pa. P.U.C. at 408.
41
eliminating the universal obligations that a carrier providing 'telecommunications services' is obligated to pay. ”42 The Commission ordered “[t]hat Bluestar seek Commission approval at such time that it proposes to offer voice grade services via any technical means.”43 The
Commission directed Bluestar to file a tariff as a competitive local exchange carrier, and directed that Bluestar comply with all provisions of the Public Utility Code and Commission regulations and orders.44 Specifically, the Commission ordered Bluestar to comply with the Commission’s termination of service procedures, and in addition, ordered Bluestar to remove language from its disclaimer that Bluestar “offers the use of its facilities when available.”45
It is, therefore, difficult to understand how providers of local exchange voice services, also using some form of IP technology over a data network, can escape the minimal regulation the Commission applied to a data CLEC like BlueStar. If Commission jurisdiction extends to Bluestar, then it extends to all providers of local exchange voice services. The fact that a CLEC employs IP technology to offer voice services is of no consequence under the Commission’s determination in Bluestar.
Another example is Zephion Network Communications (“ZNC”). In 2001, that company applied to operate within the Commonwealth as a facilities-based voice services provider whose network was based on VoIP technology and employed Sonus Networks packet switches.46 First, it is clear that the mere fact that ZNC employed VoIP technology did not deter
42 Id. 43 Id. at 410. 44 Id. at 409. 45 Id. at 410. 46
Application of Zephion Networks Communications for Approval to Offer, Render, Furnish or Supply Telecommunications Services as a Competitive Local Exchange Carrier to the Public in the Commonwealth of Pennsylvania, Docket No. A-311054F0002 at 4 (May 24, 2001).
the Commission in its exercise of its state jurisdiction. Second, ZNC requested certification as an IXC, a CLEC and as a CAP, i.e. a provider and carrier of voice services. As part of its approval of ZNC’s CAP application, the Commission reminded ZNC that CAP authority may not be used to provide local or IXC calling services to customers, and that the provision of such services to its customers required Commission authorization.47 Thus, the Pennsylvania
Commission exercised its state jurisdiction over a VoIP services provider and expressly informed that provider that it would have to obtain permission from the Commission to provide local exchange service or to function as an IXC. It is clear that a provider of local and IXC services such as Vonage is similarly situated to ZNC. Clearly, the Commission cannot exercise
jurisdiction over some CLECs and not others within the bounds of the Public Utility Code or the Federal Communications Act. Thus, the Commission should regulate VoIP-based providers of local and IXC services as CLECs.
16. Would the inter-carrier compensation regimes that apply to traditional wireline carriers using the Public Switched Telephone Network (PSTN) apply to VoIP providers? Would a Local Exchange Carrier be compensated (reciprocal compensation or access charges) for transporting/terminating a VoIP call? How would inter-carrier compensation work for a VoIP provider that transports/terminates calls from other carriers?
Some type of inter-carrier compensation regime is required for those VoIP calls that either originate or terminate on the PSTN. Access to the PSTN is functionally equivalent for IXCs, LECs, CLECs and VoIP providers. Thus, establishing an artificial distinction for VoIP providers would not only be difficult, but would also not be desirable as it would be difficult to avoid inequity between the various types of providers.
17. Would (1) 911; (2) Telephone Relay Service; (3) Lifeline and Link-Up; and (4) universal service obligations that apply to traditional wireline carriers using the PSTN apply to VoIP providers?
47
To the extent that VoIP providers are engaged in the provision of local exchange services, those providers should generally support the obligations that apply to local exchange service providers. The OCA would point out that even wireless providers will be supporting 911 emergency services with location information in the future.48 Certainly all providers of local exchange services should be required to provide 911 emergency dialing services.
Regarding lifeline, OCA submits that all local service providers should offer lifeline assistance to consumers who so qualify. If a consumer were to qualify for lifeline assistance then he should get it from his local carrier. In any event, the Global Order resolved this issue. There, the Commission stated that all CLECs must establish a lifeline program.49 To the extent that VoIP providers are engaged in providing local exchange service they too must offer some lifeline program like any other CLEC. In addition, low income consumers should not be financially penalized if they attempt to utilize technology to save money.
18. Do the networks of VoIP providers support public services like 911?
The OCA understands that VoIP services do not fully support 911 emergency dialing services. While VoIP providers like Vonage actively promote the fact that they offer 911 emergency dialing, the OCA believes that Pennsylvania’s Public Safety Answering Points (“PSAPs”) likely will not recognize those 911 calls as emergency calls.
Each “telephone service supplier” of “local exchange telephone service” within Pennsylvania must comply with the Public Safety Emergency Telephone Act (“Act”).50 That
48 S. 432, 2003 Gen. Assem., (Pa. 2003).
49 See In re: Nextlink Pennsylvania, Inc., 196 PUR 4th 172, 244 (Pa.P.U.C. Sep. 30, 1999), affirmed
Bell-Atlantic Pennsylvania, Inc. v. Pennsylvania Public Utility Comm’n., 763 A.2d 440 (Pa. Cmwlth.Ct. 2000),
reargument denied (Jan. 5, 2001), appeal on other grounds pending 1 EAP 2002 (Pa.Supreme Ct.) (“ Global Order”).
50
See Public Safety Emergency Telephone Act of 1990, P.L. 340, No. 78 (codified as amended at 35 P.S. §§7011-7021 (2002)).
Act provides for the management of the 911 emergency systems within the Commonwealth. Under that Act, each telephone service supplier must provide certain customer information51 to each PSAP where it operates in the form of a Master Street Address Guide (“MSAG”) as developed by each county 911 system.52 In addition, telephone service suppliers must collect fees from their local telephone customers to support the 911 system, and remit those fees to the relevant county official, less uncollectible amounts and a two-percent administration fee.53
For the 911 system to function, it is essential that all telephone service suppliers comply with the Act. Also, to the extent that consumers will use VoIP service as a substitute or replacement for traditional telephone service, it is necessary that VoIP providers that offer local exchange telephone service comply with the Act so that VoIP customers may continue to enjoy 911 service.
The OCA submits that the 911 system is more than a stand-alone call center that receives telephone calls like any other call center. The OCA understands that the 911 system is comprised of PSAPs linked to the central offices of telephone service suppliers through
dedicated trunks, and that 911 emergency calls are received through special equipment. The OCA understands that the PSAP equipment is designed to take each call and match it to the MSAG database that is maintained by each political subdivision through information supplied by telephone service suppliers. The exemption of an entire class of telephone service suppliers from their MSAG obligations poses serious legal and practical issues to the continued operation of the 911 system.
51 According to the statute the information required is the: customer’s telephone numbers, names, and service
addresses. 35 P.S. §7019.
52
Joint Petition for Relief Establishing Uniformity for 9-1-1 Provisioning, Docket No. P-00971203 and M-00991217 (August 17, 2000).
53
The continued operation of the 911 emergency systems is contingent upon the maintenance and upkeep of MSAG databases. The MSAG databases contain specific address and location information for each local exchange telephone service customer, and when a 911 emergency call arrives at the PSAP, that call is referenced against the MSAG database for information regarding the identity and location of the caller in addition to other information. If an entire category of telephone service suppliers were to fail to provide MSAG data, the MSAG databases would become increasingly incomplete and inaccurate. Without a complete and accurate MSAG, a county or municipality cannot render effective emergency services through its 911 system. O nly local telephone service providers are required to furnish MSAG information.54 For 911 purposes, therefore, it is essential that all entities that provide local telephone service be recognized as telephone service suppliers, and thus, be required to transmit MSAG data to the PSAP in the areas in which they operate.
The OCA understands that the Commission does not have primary responsibility for applying or interpreting the Act. However, the reference to “local exchange telephone service” by “telephone service suppliers” is defined in the Act as: “the provision of telephonic message transmission within an exchange, as such is defined and described in tariffs filed with an approved by the Commission. ”55 The OCA is concerned that, if the Commission should find that VoIP providers do not need to file tariffs, this could essentially exempt VoIP providers from their obligations under the Public Safety Emergency Telephone Act.
In addition to the submission of MSAG data, telephone service suppliers are required to collect 911 surcharges from their customers and to remit those collections, less
54
See 35 P.S. §7019.
55
allowed deductions, to the county in which the carrier’s customer resides.56 These funds are essential to the operation of emergency 911 services.
911 emergency services, though infrequently used by any one consumer, are now a necessary part of telephone service. When a consumer needs 911 services, it will be too late to determine that the service is either unavailable because the consumer did not activate the service, that the information in the MSAG is not available or accurate, or that 911 service is not provided in conformance with the Act. Such may interfere with the provision of reliable 911 service to all telephone consumers in Pennsylvania.
It appears that VoIP providers like Vonage, Packet8, and Net2phone do not fully support 911 emergency services in conjunction with their local service offerings.57 VoIP provider Vonage writes in its marketing materials that “Vonage Lets You Dial 911.” The customer service agreement (the service contract between Vonage and its customers) provides that Vonage “…[s]ervice does NOT support traditional 911, E911, or any other form of quick dial access to emergency services.”58 In that same agreement, Vonage states that it will route 911 calls to the “general access telephone number” of a PSAP designated by the customer. The OCA believes that the general access telephone number of a PSAP is not designated or used as an emergency line by Pennsylvania PSAPs. Thus, calls coming to that number will not receive 911 emergency treatment. VoIP service that does not fully offer 911 emergency calling will not function as a complete substitute for local service.
56
See 35 P.S. §7017.
57 Vonage: Terms of Service, available at http://www.vonage.com/feature_terms _service.php; Packet8:
Terms and Conditions of Service, available at http://www.packet8.net/about/service_terms.asp; Net2Phone: Terms of Use, available at http://www.web.net2phone.com/site/terms.asp; Deltathree: Terms and Conditions, available at http://www.connecthere.com/nonmembers/eng/terms.conditions.asp.
58
Vonage: Terms of Service, §2(a,b), available at http://www.vonage.com/feature_terms _service.php (last visited June 27, 2003).
Next, intrinsic in the function of a PSAP is the ability to route a call to the appropriate emergency services provider in a very short period of time. That is the ultimate function of the PSAP – to save life and property through the expedient dispatch of the
appropriate emergency services for any emergency. The OCA believes that the emergency calls directed to the general administrative line of a PSAP cannot provide that service because the PSAP simply cannot identify or treat those calls as requests for 911 emergency service.
19. Please explain when, if ever, the PSTN is used to provide VoIP service and how a VoIP provider would interconnect with the PSTN. Would the interconnection rules under 47 U.S.C. § 251 that apply to traditional wireline carriers using the PSTN also apply to VoIP providers?
In regard to using the PSTN to provide VoIP service, to a large degree, residential VoIP service is dependent on the PSTN. If VoIP were not able to use the universal ava ilability of access to the PSTN it would function much like AOL’s Instant Messaging service, that is, a service that allows communications to occur only with others equipped with VoIP service. VoIP service derives a substantial part of its value from its ability to function just like a telephone with access to the PSTN.
VoIP service takes advantage of the fact that the PSTN is universally available. Persons with VoIP service may call anyone connected to the PSTN and vice versa; calls originate on the PSTN and terminate on VoIP, and vice-versa. If VoIP services did not have access to the PSTN as an integral part of VoIP service, consumers would not be eager to adopt VoIP, and VoIP would be highly limited and generally undesirable form of telecommunications service.
In regard to how VoIP providers connect to the PSTN, it is the understanding of the OCA that those connections occur though “gateways.”59 The 1998 Report to Congress explains that:
‘IP telephony’ services enable real- time voice transmission using Internet protocols. The services can be provided in two basic ways: through software and hardware at customer premises, or through "gateways" that enable applications originating and/or terminating on the PSTN. Gateways are computers that transform the circuit-switched voice signal into IP packets, and vice versa, and perform associated signaling, control, and address translation functions. The voice communications can be transmitted along with other data on the "public" Internet, or can be routed through intranets or other private data networks for improved performance.60
. . .
Specifically, when an IP telephony service provider deploys a gateway within the network to enable phone-to-phone service, it creates a virtual transmission path between points on the public switched telephone network over a packet-switched IP network. These providers typically purchase dial-up or dedicated circuits from carriers and use those circuits to originate or terminate Internet-based calls. From a functional standpoint, users of these services obtain only voice transmission, rather than information services such as access to stored files. The provider does not offer a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information. Thus, the record currently before us suggests that this type of IP telephony lacks the characteristics that would render them information services within the meaning of the statute, and instead bear the characteristics of telecommunications services.61
20. Please explain how a telephone number or the equivalent would be used by a VoIP provider. If applicable, how would a VoIP provider acquire a telephone number? Would number portability exist between traditional wireline carrier and VoIP provider telephone numbers?
59 In the Matter of Federal-State Joint Board on Universal Service, FCC 98-67, ¶84 (April
10, 1998).
60
Id.
61
First, the OCA believes that VoIP providers do not acquire telephone numbers from NANPA as do LECs and CLECs. VoIP providers acquire “intermediate” telephone numbers from a CLEC or LEC that is willing to sell telephone numbers on the secondary market.62 The Commission should note that VoIP providers are not constrained in their use of those numbers to the same degree as LECs or CLECs who must track and report number usage and exhaustion.
It would appear that number portability can be achieved between a wireline carrier and a VoIP provider. VoIP provider Vonage states that it will accept a number ported from a LEC or CLEC, and that it will in turn port a number under certain conditions, for
example, if the Vonage customer’s account is fully paid. This would include the $39 disconnect fee that Vonage would apply in the event a consumer were to leave Vonage.
In addition, section 251(b) of the 96 Act requires local exchange carriers to port numbers according to the regulations of the Federal Communications Commission. The status of VoIP providers as local exchange carriers at the FCC is not yet clear. Without such a federal classification, VoIP providers would have no duty to port a number. If that were the case, then consumers who opt to try VoIP service could find themselves in the circumstance of not being able to re-port a number once ported to a VoIP provider.
The point here is that the FCC has authority to determine whether local number portability will apply to VoIP providers. The OCA will not attempt to define how that should apply here.
21. Would VoIP providers be required to maintain or provide directory information for use in a standard telephone directory?
62
At present, it would appear that VoIP providers need not enter into interconnection agreements, and thus, would have no opportunity to maintain or provide directory information to the incumbent carrier. Thus, a consumer served by a VoIP provider may not be able to have her phone number published.
22. What, if any, Quality of Service standards should apply to VoIP service as compared to traditional telephone service? (See 52 Pa. Code §§ 63.53-.64). Please explain how reasonable standards should be established for quality standards that do not exist for traditional calls but are typical for VoIP calls (e.g., latency, echo, doubletalk, etc.).
The Commission should establish limited quality of service standards for VoIP. While it may not be necessary to focus those standards on sound quality, it may be necessary to focus on safety and reliability. The OCA has explained above that VoIP providers appear not to offer fully functioning 911 emergency services. In addition, VoIP service does not appear to function in the event of a power outage.
Some quality of service issues – noise levels, jitter, and echo – may clearly be addressed by the marketplace given the fact that VoIP is a competitive offering. On those issues the Commission need not be as concerned as with others. Likewise, there are some quality of service issues that cannot be overlooked, such as 911 emergency services. It is on these issues that the Commission should act in its capacity to safeguard the public interest by closely
monitoring these new market entrants to ensure that they offer the appropriate quality of service levels to consumers.
23. How, if at all, does VoIP service affect the FCC's jurisdictional separations process? In order to account for VoIP traffic, what kind of changes, if any, are needed with respect to the FCC's existing rules and procedures for designating calls as interstate or intrastate?
In practical terms, functionality of the jurisdictional separations process depends largely on telephone numbers and interstate usage reporting. The fact that VoIP telephone
numbers need not conform to current geographic numbering scheme s may present some problems in regard to jurisdictional separations.
FCC Jurisdiction to Regulate VoIP Service
24. Has the FCC addressed whether it has jurisdiction over VoIP service? Please cite and discuss any proceedings that have concluded and/or are currently pending before the FCC that address or relate to the FCC's jurisdiction to regulate VoIP service.
The FCC has not, nor can it, exercise jurisdiction over VoIP to the extent that it would preempt the Pennsylvania Commission’s ability to regulate intrastate VoIP telephone service. The FCC has no authority to preempt state authority under section 152(b) of the federal Communications Act. Therefore, the FCC would not have jurisdiction over the intrastate portion of VoIP service. The lack of exclusive jurisdiction on the part of the FCC is evident in the fact that several states have engaged in VoIP investigations. In terms of what authority the FCC has chosen to exercise, there are two cases currently before the FCC that concern VoIP.
In February 2003, Pulver.com filed with the FCC its Petition For Declaratory Ruling That Pulver.com’s Free World Dialup Is Neither Telecommunications Nor A
Telecommunications Service, WC Docket No. 03-45 (February 5, 2003) (Pulver.com Petition). Pulver.com’s service allows members of the Free World Dialup community to call to only other members of the Free World Dialup community.63 Thus, those members canno t call to persons connected to the PSTN, wireless phones, or even generally to other persons with broadband VoIP service, and Free World Dialup members do not have NANP telephone numbers. Pulver.com’s services, although they use Internet Protocol logic, are not analogous to the services provided by carriers like Vonage for the obvious reason that Pulver.com’s services are not local exchange service. The FCC has yet to issue a decision on the Pulver.com Petition.
63
In January 2003, AT&T Corporation filed with the FCC its Petition For Declaratory Ruling That AT&T’s Phone-to-Phone IP Telephony Services Are Exempt From Access Charges, WC Docket No. 02-361 (January 24, 2003). In that Petition, AT&T sought to have the FCC declare that its VoIP servic es need not pay access charges for a number of policy-related considerations. AT&T filed the petition after a number of ILECs sought to impose access charges on AT&T for the termination of VoIP calls upon their systems. The FCC has yet to issue a decisio n on AT&T’s Petition.
25. If the FCC has determined that it has jurisdiction over VoIP service, has the FCC exercised such jurisdictional authority? Please cite and discuss any proceedings where the FCC has exercised such jurisdiction.
Regarding the exercise of FCC jurisdiction, the OCA has discussed the Report to Congress of the Federal-State Joint Board on Universal Services at length in these Comments. Although that Report took great strides toward concluding that phone-to-phone IP Telephony as a category was a “telecommunications service” because of its functional similarities to standard telephone service, it did not determine that IP telephony providers were telecommunications services liable for universal service contributions under that definition. The Joint Board commented that it would prefer to see more definitive information on individual service
offerings before doing so.64 Thus, the FCC declined to exercise its authority over VoIP providers for that purpose.
In the case of Vonage, however, it may be that the Joint Board would find this provider subject to a universal service assessment because it is actively engaged in providing local exchange service just like any other CLEC. The reasoning of Congress and the Joint Board -- that func tionality to the end user, and not technology, is the arbiter of definitional
64
In the Matter of Federal-State Joint Board on Universal Service, FCC 98-67, ¶14 (April 10, 1998).
classifications under the telecommunications Act of 1996 – argues strongly to include Vonage in that support scheme.
26. If applicable, would the FCC's jurisdiction be exclusive? Please explain why or why not. The FCC has no authority to preempt state authority under section 152(b) of the federal Communications Act. Therefore, the FCC would not have jurisdiction over the intrastate portion of VoIP service.
27. What other VoIP-related issue(s), if any, are relevant to the Commission's investigation of VoIP service initiated? Please limit your response to no more than 1,500 words.
The OCA believes that there are two other issues that the Commission should address as part of its investigation of VoIP services. The first is that of consumer privacy, and the second is that of termination of service. If VoIP providers are not public utilities for the purposes of providing local exchange service, then no state rules would apply in regard to these two heavily regulated aspects of telephone service within Pennsylvania.
It would appear that as long as phone-to-phone VoIP providers remain outside the Public Utility Code consumers will not have the benefit of the privacy protections afforded to them by that statute, and by the Commission’s regulations. Aside from the issue of transmitting voice messages over the Internet where they may be intercepted, VoIP service presents other privacy concerns as well. Section 2906 of Title 66 and Section 63.131 et seq. of the
Commission’s regulations provide Pennsylvania telephone consumers with specific privacy protections. Most importantly, the latter establishes controls on how service providers may access and share consumer proprie tary network information.
Next, the Commission should consider that the protections of Chapter 64 will not apply to phone-to-phone VoIP providers if those providers are not public utilities. The OCA is
concerned about the potential for any telephone service provider to cut-off its residential subscriber’s service without cause or notice. It would not be in the public interest to exempt a competitive local exchange provider like Vonage from Chapter 64 regulation.
The Commission should handle phone-to-phone VoIP providers much like other CLECs. The similarities between existing CLECs under the Commission’s jurisdiction and VoIP providers are numerous. The Commission should use its manner of regulating CLECs as a model as it considers the regulation of VOIP telephone service providers.
III. Conclusion
The OCA requests that the Commission consider these Comments as it investigates Voice Over Internet Protocol service.
Respectfully submitted,
________________________________ Philip F. McClelland
Senior Assistant Consumer Advocate Shaun A. Sparks
Assistant Consumer Advocate For: Irwin A. Popowsky
Consumer Advocate
Office of Consumer Advocate
555 Walnut Street, 5th Floor, Forum Place Harrisburg, Pennsylvania 17101-1923 (717) 783-5048
Dated: July 1, 2003
TABLE OF CONTENTS
I. Introduction...1
II. COMMENTS ...2
Defining VoIP Service...2
Provider and End User Experience with VoIP Service ...6
Commission Jurisdiction to Regulate VoIP Service...10
The Extent of Commission Jurisdiction Over VoIP Service ...19
FCC Jurisdiction to Regulate VoIP Service ...31
