Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C

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1 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C In the Matter of ) ) Wireline Competition Bureau Seeks Comment on ) WC Docket No Petition of Union Electric Company d/b/a Ameren ) Missouri for Declaratory Ruling Concerning VoIP ) Service Offered Using Cable One s Pole Attachments ) ) REPLY COMMENTS OF CABLE ONE, INC. Cable One, Inc. ( Cable One ) respectfully submits these reply comments in response to comments filed on the petition of Union Electric Company d/b/a Ameren Missouri ( Ameren ), 1 in accordance with the Public Notice issued by the Federal Communications Commission ( Commission or FCC ) in the above-referenced docket. 2 The comments overwhelmingly support the denial of Ameren s request for a declaratory ruling that the Voice over Internet Protocol ( VoIP ) service offered over Cable One s pole attachments is a telecommunications service for purposes of determining the appropriate pole attachment rate. 3 Nearly every commenter agrees: (1) the issues raised by the District Court s referral have been addressed by existing Commission precedent; (2) the Commission does not 1 Motion for Declaratory Ruling of Union Electric Company d/b/a Ameren Missouri (filed June 24, 2013) ( Ameren Petition ). 2 WC Docket No , Wireline Competition Bureau Seeks Comment on Petition of Union Electric Company d/b/a Ameren Missouri for Declaratory Ruling Concerning VoIP Service Offered Using Cable One s Pole Attachments, Public Notice, DA (rel. Dec. 20, 2013) ( Public Notice ). 3 Ameren Petition at 9; see also Public Notice at 1. Ameren filed its Petition in response to referral orders from the United States District Court for the Eastern District of Missouri ( District Court ), which directed Ameren to seek a determination by the FCC of the issues raised in [Ameren] s complaint because the FCC is the proper entity to determine issues of a highly technical nature in the regulatory scheme overseen by the FCC and in this rapidly changing area of regulation. See Union Elec. Co. d/b/a Ameren Mo. v. Cable One, Inc., No. 4:11-CV-299 (CEJ), Memorandum Opinion and Order, 2 (E.D. Mo. May 23, 2013) ( District Court 2013 Order ); Union Electric Company d/b/a Ameren Missouri v. Cable One, Inc., No. 4:11-CV-299 (CEJ), Memorandum Opinion and Order, 8 (E.D. Mo. Sept. 27, 2011) ( District Court 2011 Order ). 1

2 need to determine the statutory classification of VoIP services to respond to the District Court s referral; and (3) the application of the cable rate to cable operator provided VoIP services promotes the Commission s broadband deployment goals. Accordingly, the Commission should reaffirm its existing rules and policies that the telecom rate for pole attachments applies only to telecommunications carriers or providers of telecommunications services, and that the provision of VoIP service does not transform cable television attachments into telecommunications pole attachments or otherwise obligate cable system operators providing VoIP service to pay the telecom rate for cable television attachments. I. THE ISSUES RAISED BY THE DISTRICT COURT S REFERRAL HAVE BEEN ADDRESSED BY EXISTING COMMISSION PRECEDENT The majority of commenters agree that the Commission has determined that the cable rate applies to pole attachments used by cable operators to provide VoIP services. 4 In 1991, the Commission rejected pole owners attempts to apply an additional, unregulated rate for pole attachments used by a cable operator to provide broadband services. 5 In 1998, the Commission determined that Internet access service is not the provision of a telecommunications service, and thus a cable television system providing Internet service over a commingled facility is not a telecommunications carrier subject to the revised rate mandated by Section 224(e) by virtue of providing Internet service. 6 In 2011, the Commission once again confirmed that the use of pole attachments by providers of telecommunications services or cable operators to provide commingled services does not remove them from the pole attachment rate regulation framework 4 See, e.g., AT&T at 5-8; ACA at 3-5; NCTA at 2, 5-6; Mediacom at 2; see also Cable One at Heritage Cablevision Associates of Dallas, L.P. v. Texas Utilities Electric Company, 6 FCC Rcd 7099, 12 (1991) ( Heritage ) ( a cable operator may seek Commission-regulated rates for all pole attachments within its system, regardless of the type of service provided over the equipment attached to the poles ), aff d sub nom. Tex. Utils. Elec. Co. v. FCC, 997 F.2d 925 (D.C. Cir. 1993). 6 Implementation of Section 703(e) of the Telecommunications Act of 1996: Amendment of the Commission s Rules and Policies Governing Pole Attachments, 13 FCC Rcd 6777, 33 (1998) ( 1998 Order ), aff d Nat l Cable & Telecomms. Ass n, Inc. v. Gulf Power Co., 534 U.S. 327 (2002) (intervening history omitted). 2

3 under section Accordingly, the Commission concluded that the telecom pole attachment rate can be applied only to those services that ultimately are telecommunications services. 8 In light of these prior decisions, the commenters correctly recognize that the Commission s existing pole attachment decisions already address the issues raised by the District Court referral. As AT&T points out, the rationale in the Commission s 1998 Order applies equally to cable systems used to provide commingled video and VoIP service. 9 NCTA notes that the 2011 Order acknowledges the underlying practice of applying the Cable Rate to VoIP. 10 Mediacom agrees that the issue of which pole attachment rate applies to VoIP services is moot in light of the Commission s actions in the 2011 Order. 11 These decisions evidence the Commission s continued view that the cable rate applies to pole attachments used to provide VoIP service because the Commission has not affirmatively classified VoIP service as a telecommunications service. 12 Any other outcome would make no sense Implementation of Section 224 of the Act, 26 FCC Rcd 5240, 154 (2011) ( 2011 Order ), aff d by Am. Elec. Power Serv. Corp. v. FCC, 708 F.3d 183 (D.C. Cir. 2013), cert. denied 134 S. Ct. 118 (U.S. Oct. 7, 2013) Order at n.466. AT&T at 8. NCTA at 6. Mediacom at 2. NCTA at 6. AT&T at 8. This is precisely the type of situation that declaratory rulings were intended to address. As Cable One explained, the Commission s pole attachment complaint procedures were not intended to be used for this type of dispute. Cable One at n.31; cf. Electric Utilities at 4. The Commission has stated that the rules for complaint resolution will only apply when the parties are unable to arrive at a negotiated agreement and that the complaint procedures are adequate to establish just and reasonable rates, terms, and conditions for pole attachments Order 16. The complaint procedures therefore allow cable operators, utilities, or telecommunications carriers (with some exceptions) to file a complaint alleging that (1) the entity has been denied access to a utility pole, duct, conduit, or right-of-way in violation of the Commission s rules and/or (2) that a rate, term, or condition for a pole attachment is not just and reasonable. 47 C.F.R (d) (defining complaint ). Neither of those situations is present here. The Commission s pole attachment complaint procedures are not the proper vehicle to give guidance to affected persons in areas where uncertainty or confusion exists, which is what the District Court seeks here. Amendment of Part 31, Uniform System of Accounts for Class A and Class B Telephone Companies, et al., 92 F.C.C.2d 864, 43 (1983) (subsequent history omitted). 3

4 II. THE COMMISSION DOES NOT NEED TO DETERMINE THE STATUTORY CLASSIFICATION OF VOIP SERVICES TO RESPOND TO THE DISTRICT COURT S REFERRAL Most commenters agree that the Commission does not need to determine the statutory classification of VoIP service in order to address the District Court s primary jurisdiction referral. 14 This is the approach the Commission took in 1998 when it determined it did not need to decide the precise category into which Internet services fit to determine the rate to be applied to an attachment providing commingled Internet access service and traditional cable service. 15 Just as the Commission did not have to categorize Internet services in 1998, the Commission does not have to classify VoIP services either. 16 As NCTA observes, Congress has been well aware that VoIP remains unclassified by the Commission and has itself enacted amendments to the Communications Act acknowledging that unclassified VoIP does not fall within established service definitions. 17 In addition, as ACA and AT&T explain, the classification of VoIP services should be considered in a more generic rulemaking proceeding. 18 The declaratory ruling process is intended to interpret or clarify existing rules, and is not the appropriate procedural vehicle for adopting new interpretations of law See, e.g., AT&T at 4; NCTA at 7-9; Mediacom at 2; ACA at 4-5; see also Cable One at Order AT&T at 8 (quoting Gulf Power, 534 U.S. at 328). NCTA at 9; see also Cable One at 13 (discussing how Congress defines interconnected VoIP service to be an advanced communications service ) ACA at 4-5; AT&T at 5. See, e.g., Emergency Vessel Location System Requests that a Synthesized Voice Used for Emergency Messages Be Interpreted as Complying with Part 80 of the Commission Rules, 5 FCC Rcd 6378 (1990) ( a declaratory ruling is appropriate when the Commission interprets an existing rule ); Petitions of Sprint PCS and AT&T Corp. for Declaratory Ruling Regarding CMRS Access Charges, 17 FCC Rcd 13192, 20 (2002) ( Our order today clarifies requirements under our existing rules. ) (emphasis in original). 4

5 Two commenters, however, believe the Commission should find VoIP service to be a telecommunications service in the context of this proceeding. 20 The Electric Utilities, for example, claim VoIP services should be treated as telecommunications services for purposes of pole attachment rates because VoIP is functionally indistinguishable from traditional telephone service. 21 This is not the test of whether a service meets the statutory definition of telecommunications service, and the Commission has emphasized that regulatory classification decisions should not be based solely on functional similarities. 22 Nor is it necessary to treat VoIP services as telecommunications services for purposes of pole attachment rates in order to promote competitive neutrality as the Electric Utilities claim. 23 The Commission s 2011 Order eliminates any perceived competitive neutrality issues between telecommunications carriers and cable operators; the entire goal of the 2011 Order was to promote competitive and technological neutrality by eliminating the disparity between the cable and telecom rates. 24 The position taken by the Electric Utilities here is exactly what the Commission rejected in the 2011 Order COMPTEL at 1; Electric Utilities at Electric Utilities at 3 (internal quotations omitted); see also COMPTEL at 4 (arguing that VoIP services should be classified as telecommunications services because consumers view VoIP services as a substitute for traditional telephony). 22 Vonage Holdings Corp. Petition for Declaratory Ruling Concerning an Order of the Minn. Pub. Utils. Comm n, 19 FCC Rcd 22404, n.120 (2004) ( Vonage Order ) ( Although DigitalVoice may be functionally similar in some respects to voice communications that are not dependent upon the Internet, this does not change the fact that DigitalVoice is an Internet-based communications service. ) (emphasis in original); id. 22 (rejecting calls by commenters to regulate Vonage s service because it is functionally similar to traditional local exchange and long distance voice service and finding it is not appropriate to base regulatory decisions solely on the functional similarities between DigitalVoice and other existing voice services ) (emphasis in original) Electric Utilities at Order 173. Mediacom at 2. 5

6 The Commission also should reject COMPTEL s request for confirmation that managed VoIP services, such as the one offered by Cable One, are telecommunications services. 26 Cable One offers interconnected VoIP service as that term has been defined by the Commission, which can be provided over interconnected public, private, managed and non-managed IP networks. 27 As the Commission has stated, interconnected VoIP service originates in a broadband format, and consumers must use additional or different customer premises equipment ( CPE ) to access the service. 28 These specific characteristics distinguish interconnected VoIP service from the IP-in-the-middle services at issue in the Compass Global and AT&T decisions referenced by COMPTEL. 29 In addition, VoIP services offer significantly more than mere transmission, 30 by allowing users to manage personal communications dynamically, including enabling them to originate and receive voice communications and access other features and capabilities, even video COMPTEL at C.F.R. 9.3; see also Vonage Order at n.10. In the context of the Communications Assistance for Law Enforcement Act ( CALEA ), the Commission abandoned the distinction between managed and non-managed VoIP services as the dividing line between VoIP services that are covered by CALEA and those that are not, finding that using interconnected VoIP services to define the category of services covered by CALEA provides a clearer, more easily identifiable distinction that is consistent with recent Commission orders addressing the appropriate regulatory treatment of IP-enabled services. Communications Assistance for Law Enforcement Act and Broadband Access and Services, 20 FCC Rcd 14989, 40 (2005) C.F.R. 9.3; cf. COMPTEL at 4 (arguing that consumers still use the same CPE and phone jacks to obtain the service). 29 COMPTEL at 2-3 (citing Compass Global, Inc. Apparent Liability for Forfeiture, 23 FCC Rcd 6125 (2008) and Petition for Declaratory Ruling that AT&T Phone-to-Phone IP Telephony Services Are Exempt from Access Charges, 19 FCC Rcd 7457 (2004)). 30 AT&T at 4-5 ( VoIP service is an information service because it involves net protocol conversion and is tightly integrated with other functionalities that allow end users to generate, acquire, store, transform, process, receive, utilize, or make available information via telecommunications. ) (citing 47 U.S.C. 153(24)) (internal quotations omitted). 31 Vonage Order 32. VoIP service is a part of a larger category of services and applications making use of Internet Protocol (IP), which are called IP-enabled services. See IP-Enabled Services, 19 FCC Rcd 4863, 1 (2004). 6

7 Further, the fact that the Commission has chosen to subject interconnected VoIP services to certain social and public policy obligations does not automatically transform VoIP service into a telecommunications service. 32 As ACA points out, the Commission has taken such action in the past only to advance important social public policy objectives and subjecting cable operators to the telecommunications carrier pole attachment rate when they provide VoIP services as well would promote no important social public policy objective. 33 By contrast, such a conclusion would undermine the Commission s broadband deployment goals as discussed below. Accordingly, the calls by COMPTEL and the Electric Utilities to classify VoIP services as telecommunications services should be rejected. The Commission repeatedly has expressly declined to address the statutory classification of VoIP services 34 and should do so again here. The Commission does not need to categorize VoIP service in order to respond to the District Court s primary jurisdiction referral, and a declaratory ruling proceeding is not the appropriate forum for the Commission to make such a determination in any case. III. APPLICATION OF THE CABLE RATE TO ATTACHMENTS USED FOR CABLE TELEVISION AND VOIP SERVICES PROMOTES THE COMMISSION S BROADBAND DEPLOYMENT GOALS The parties are nearly unanimous in their view that application of the cable rate to VoIP service attachments was intended to promote the Commission s broadband deployment goals. 35 Mediacom correctly recognizes the Commission s goal in the 2011 Order to discourage 32 Cf. COMPTEL at ACA at 5; see also NCTA at 7 ( Consistent with this established precedent, the Commission need not classify VoIP in this proceeding, and instead should order that the Cable Rate pole attachment formula is applicable to cable VoIP. ) Order at n.466; see also Connect America Fund, et al., 26 FCC Rcd 4554, 73 (2011) ( To date, the Commission has not classified interconnected VoIP service as either an information service or a telecommunications service. ). 35 See, e.g., ACA at 5-6; Mediacom at 3; NCTA at 5-7; see also Cable One at

8 disputes and costly litigation about the rate formula that applies to broadband, voice over Internet protocol, and wireless services that distort attachers deployment decisions. 36 The purpose of Section 224 is to remedy the inequitable position between pole owners and those seeking pole attachments and [t]he nature of this relationship is not altered when the cable operator seeks to provide additional service. 37 Grant of Ameren s request to re-classify cable television attachments into telecommunications attachments due to the cable operator s provision of VoIP service would undermine the Commission broadband goals. 38 The Commission s broadband deployment goals, as reflected in the National Broadband Plan and the 2011 Order, therefore provide substantial additional grounds for applying the Cable Rate to VoIP services offered by cable operators as several commenters note Mediacom at 3 (quoting 2011 Order 174) Order 31; see also Cable One at 14. NCTA at 4 ( the Cable Rate, which fully compensates utilities for pole attachments, would best promote national broadband policies and that imposing a higher rate for VoIP (which creates no additional burden on the poles) would undermine those same broadband goals ). 39 NCTA at 4; see also ACA at 6 ( given the Commission s policy objectives of promoting broadband deployment, it makes no public policy sense at this time to subject cable operators for the first time to higher, super compensatory attachment rates when they begin to provide VoIP services ); AT&T at 8 ( whether the service is Internet access or VoIP, requiring cable providers to pay a higher rate for commingling the service would not serve the public interest because it might deter providers from offering non-traditional services and, expressly contrary to the aim of the Federal Telecommunications Act of 1996, thereby harm competition ). 8

9 CONCLUSION For the foregoing reasons and those stated in Cable One s initial comments, Cable One urges the Commission to deny the declaratory ruling requested by Ameren and reaffirm, consistent with the Commission s long-standing precedent, that the provision of VoIP service does not transform cable television attachments into telecommunications attachments or obligate a cable operator providing VoIP service to pay the telecom pole attachment rate. Respectfully submitted, CABLE ONE, INC. Philip P. Jimenez Associate General Counsel CABLE ONE,INC. 210 E. Earll Drive Phoenix, AZ (603) philip.jimenez@cableone.biz Dated: February 5, 2014 /s/ Chérie R. Kiser Chérie R. Kiser Angela F. Collins CAHILL GORDON &REINDEL LLP 1990 K Street, NW, Suite 950 Washington, DC (202) ckiser@cahill.com acollins@cahill.com Its Attorneys 9