In a Notice of Proposed Rulemaking (NPRM) approved last Friday, the FCC initiated proceedings to  consider proposed rules that would ensure unimpeded network access as fixed wireline carriers transition from legacy  copper infrastructure to Internet protocol (IP)-based platforms. At the same time, the agency voted  3-2 along partisan lines to adopt a related Declaratory Ruling (DR) that requires carriers to  obtain FCC consent before discontinuing any service supported by copper, regardless of whether that  service is covered by tariffs filed previously with the FCC.

Citing concerns raised a year ago when Verizon Communications petitioned the FCC for authority to  terminate its storm- damaged copper network at Fire Island, New York, FCC Chairman Tom Wheeler  explained that the NPRM and DR attempt to preserve the agency’s network compact by ensuring  portability of service expectations, especially with regard to the need of consumers to connect to  911 services. Specifically, the NPRM concludes tentatively that carriers seeking to discontinue  copper-based service offered to competitors on a wholesale basis “should be required to provide  competitive carriers equivalent wholesale access going forward.” The proposed rules would also  require wireline carriers to inform the public of any major change in service and ensure that “new  types of services meet the needs of customers” before legacy services are terminated. With respect  to IP-based 911 services that can be rendered inoperable by power outages, the NPRM  solicits   comment  on  “a  framework  to  establish  reasonable  expectations  for  when  providers  should   bear responsibility for providing back-up power solutions.”

As depicted in the DR, the FCC intends to examine the effects of service discontinuance upon the  public and not “the fine print of an aging tariff filing.” According to the FCC, the goal is to ensure “there will be a  public process to evaluate a proposed discontinuance before a choice is removed from the market.”

Despite concurring on the NPRM, FCC Commissioners Ajit Pai and Michael O’Rielly cast dissenting  votes against the DR on grounds that the FCC exceeded its authority under Section 214 of the 1934  Communications Act. As Pai argued that the DR expands the scope of Section 214 by requiring  carriers “to seek permission . . . before discontinuing ‘every [network] feature no matter how  little used or old fashioned,’” O’Rielly maintained that “such a nebulous standard appears nowhere  in the Act and has no basis in wireline precedent.” O’Reilly further charged that the FCC never  asked for public comment on the issues addressed by the DR, proclaiming: “that’s not how we are  supposed to operate.”

Notwithstanding these concerns, a Comptel executive applauded the FCC’s actions as “an important  step in providing the certainty competitors require to continue investing in the marketplace.”  Verizon Communications, meanwhile, voiced hope that the FCC “will chose to adopt policies . . .  that do not require companies to keep legacy technologies in place in a way that does not serve consumers.”