Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C REPLY COMMENTS OF PEERLESS NETWORK, INC.

TABLE OF CONTENTS Introduction and Summary... 1 I. The FCC Does Not Disregard Applicable Regulations Based On The Format Of The Traffic Exchanged..... 4 II. AT&T Fails To Demonstrate That The Commission May Forbear From All Regulations... 8 Conclusion... 11 i

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of AT&T Petition to Launch a Proceeding Concerning the TDM-to-IP Transition GN Docket No. 12-353 Petition of the National Telecommunications Cooperative Association for a Rulemaking to Promote and Sustain the Ongoing TDM-IP Evolution. REPLY COMMENTS OF PEERLESS NETWORK, INC. Peerless Network, Inc. ( Peerless ), by its counsel, respectfully submits this reply to the comments filed in response to the AT&T 1 and NTCA 2 Petitions to initiate proceedings relating to the infrastructure transition of incumbent local exchange carriers ( ILECs ) from Time Division Multiplexing ( TDM ) to Internet Protocol ( IP ). INTRODUCTION AND SUMMARY The Commission should not be deceived by AT&T s cries that its wireline business is losing market share. AT&T knows full-well that its wireline and wireless services, taken in the aggregate, dominate the market, and provide leverage in negotiating favorable terms for 1 In the Matter of the Technological Transition of the Nation s Communications Infrastructure, Petition to Launch a Proceeding Concerning the TDM-to-IP Transition, GN Docket No. 12-353 (filed Nov. 7, 2012) ( AT&T Petition ). 2 In the Matter of the Technological Transition of the Nation s Communications Infrastructure, Petition of the National Telecommunications Cooperative Association for a Rulemaking to Promote and Sustain the Ongoing TDM-to-IP Evolution, GN Docket No. 12-353 (filed Nov. 19, 2012) ( NTCA Petition ). 1

interconnection and traffic exchange between carriers. The dominant market power of the ILECs and their unregulated affiliates is widely recognized in the comments submitted in this matter. 3 AT&T asserts that it is forced to maintain two networks and that s unfair (or, in their words, detrimental to investment). 4 But these assertions in this proceeding contravene AT&T s public statements to investors. AT&T describes its network as including extensive wireless and wired access capabilities that carries 33 petabytes of data traffic on an average business day. 5 AT&T touts its existing IP capabilities by declaring that it has the nation s first coast-to-coast IP/MPLS network using new-generation routing technology that carriers data at 40 Gbps. More than 75 percent of the IP traffic carried over the company s backbone network rides on this newgeneration platform. 6 AT&T itself recognizes that there is an ever-increasing demand for online video, photos, music and IP-based business applications. 7 AT&T makes hay about its $8 billion investment in IP technology, but it is clear from its disclosures to its investors that AT&T already views this investment as both necessary and useful to serve its existing customers, for both wireline and wireless services, and to provide non-telecommunications services. AT&T s 3 See, e.g., Comments of Peerless Network, Inc., In the Matter of the Technological Transition of the Nation s Communications Infrastructure, GN Docket No. 12-353 (filed Jan. 28, 2013) ( Peerless Comments ), at 8-12; Comments of T-Mobile USA, Inc., In the Matter of the Technological Transition of the Nation s Communications Infrastructure, GN Docket No. 12-353 (filed Jan. 28, 2013) ( T-Mobile Comments ), at 9-10; Comments of the Association of Teleservices International, Inc., In the Matter of the Technological Transition of the Nation s Communications Infrastructure, GN Docket No. 12-353 (filed Jan. 28, 2013) ( ATSI Comments ), at 4; Comments of HyperCube Telecom, LLC, In the Matter of the Technological Transition of the Nation s Communications Infrastructure, GN Docket No. 12-353 (filed Jan. 28, 2013) ( HyperCube Comments ), at 16-17; Initial Comments of the National Association of State Utility Consumer Advocates, In the Matter of the Technological Transition of the Nation s Communications Infrastructure, GN Docket No. 12-353 (filed Jan. 28, 2013) ( NASUCA Comments ), at 20-21, 26-27 4 AT&T Petition, at 11-12; see also Comments of Verizon and Verizon Wireless, In the Matter of the Technological Transition of the Nation s Communications Infrastructure, GN Docket No. 12-353 (filed Jan. 28, 2013) ( Verizon Comments ), at 40-41. 5 AT&T Company Information, Networks, available at: http://www.att.com/gen/investor-relations?pid=5711 ( AT&T s Network Description ). 6 Id. 7 AT&T s Network Description. 2

proposal for a regulation free experiment to foster the development of IP networks is not necessary because these IP networks are already being deployed and used. The regulation-free experiment proposed by AT&T is fundamentally flawed. First, there is no justification to ignore the obligations of Sections 251 and 252 of the Act based on changes in technology. 8 The Commission is not inexperienced with swift changes in technology or even packet switched technology, and the Commission has upheld its authority without the chill on new technology investments AT&T now fears. Technological improvements are readily adopted by carriers because of the great potential they offer to both carriers and consumers, and the Commission is adept at applying existing laws and regulations to changing technology. 9 Likewise, there is no reason to believe that maintaining existing Commission regulations will chill investment in the deployment in IP infrastructure because of the great advantages an IP network brings to both ILECs and consumers. Second, AT&T s Comments surmise that the Commission can waive all regulatory requirements pursuant to 47 U.S.C. 160(a). 10 Tellingly, AT&T makes no effort to demonstrate that forbearance of the regulation at issue will not result in just and reasonable charges and practices, a requirement under Section 10(a). 47 U.S.C. 160(a)(1). Indeed, close review of each of the requirements of Section 10(a) demonstrates that none are satisfied. Consequently, AT&T raises no legal basis for the Commission to exempt all regulations to conduct its experiments. As Peerless explained in its Comments, AT&T often requires indirect connection for some forms of traffic through an AT&T regulated entity, using this structure to impose 8 47 U.S.C. 251 and 252. 9 And, unlike AT&T supposes, AT&T s regulation free request is unlike the conversion to D-TV because there the Commission did not exempt broadcasters from all regulations as part of the transition. 10 Comments of AT&T, Inc., In the Matter of the Technological Transition of the Nation s Communications Infrastructure, GN Docket No. 12-353 (filed Jan. 28, 2013) ( AT&T Comments ), at 4. 3

discriminatory terms for traffic exchange. 11 Peerless advocated that the Commission should not entertain any suggestion that the FCC eliminate the interconnection obligations under Section 251 and 252, especially based on AT&T s theory that it needs to be free of these obligations to promote investment in IP networks. The comments submitted in this matter are replete with similar concerns about the dominance of large ILECs like AT&T and Verizon in combination with their unregulated affiliated entities. 12 And, AT&T cannot dispute that it offers nonaffiliated entities discriminatory terms and pricing for transit and interconnection. 13 For the reasons stated herein and in Peerless initial comments, the Commission should deny AT&T s request to nullify the Act s pro-competitive regulations through AT&T s proposed one-sided experiments, and soundly reject AT&T s position exempting IP interconnections from Sections 251 and 252. I. The FCC Does Not Disregard Applicable Regulations Based On The Format Of The Traffic Exchanged Despite the protests in AT&T s Petition, voice technology has evolved from analog networks to high-speed fiber and digital switching networks seamlessly under the FCC s regulations. 14 There is no technological reason why transitioning to voice IP transmission requires the Commission to jettison its regulatory oversight to ensure nondiscrimination in the exchange of traffic. Moreover, AT&T s fear that the Commission s current regulations will chill investment in IP technology is misplaced. 11 Peerless Comments, at 8-9. 12 Supra, n. 3. 13 Peerless Comments, at 11-12. 14 As correctly recognized by the National Association of State Utility Consumer Advocates ( NASUCA ) in NASUCA Comments, at 4-5, n. 22. 4

For example, in the 1980 s, the Commission was faced with the question of whether internetworking packet protocols (such as call setup, call routing, call cessation, calling or called party identification, billing, and accounting) used primarily between carriers are basic services requiring nondiscriminatory access. 15 The Commission concluded that it would continue to regulate the internetworking call signaling protocols as a regulated (Title II) basic service to ensure the proper exchange of traffic, even as the format of the traffic changed. 16 At the time, AT&T argued that maintaining regulatory authority over the manner in which carriers exchange traffic was required to promote the evolution of the nationwide network from circuit switching to packet switching, and other advanced switching methods. 17 AT&T asserted that the continued oversight of the exchange of traffic was required to ensure the continued evolution of end-user packet-switched capabilities. 18 Similarly, in the mid-1990 s, the Commission ordered ILECs to provide Frame Relay Service as a basic / regulated service under Title II, rejecting AT&T s assertions that subjecting 15 In re Amendments to Sections 64.702 of the Commission s Rules and Regulations (Third Computer Inquiry), and Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations Thereof Communications Protocols Under Section 64.702 of the Comm'n's Rules and Regulations, CC Docket No. 85-229, Report and Order, 2 FCC Rcd. 3072, 3081 (rel. May 22, 1987) ( Computer III Phase II Order ), at 3, 69-71, recon., 3 FCC Rcd 1150 (1988), further recon., 4 FCC Rcd 5927 (1989), rev d on other grounds sub nom., California v. FCC, 905 F.2d 1217 (9 th Cir. 1990), on remand, 6 FCC Rcd 7571 (1991), vacated in part and remanded, California v. FCC, 39 F.3d 919 (9 th Cir. 1994). 16 Our intent was to [define as a basic service ] those computer processing operations that a carrier performs to (a) set up a call by routing it to its destination, and (b) execute the necessary network management functions that arise when the call is completed. Thus, any code or protocol conversions (or any other computer processing functions) taking place before end-to-end communications have been established or after they have been completed, while a subscriber is interacting only with the network, would be considered to be basic services. In re Amendment of Sections 64.702 of the Comm'n's Rules & Regulations (Third Computer Inquiry), and Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations Thereof Communications Protocols Under Section 64.702 of the Comm'n's Rules and Regulations, CC Docket No. 85-229, Report and Order, 104 F.C.C.2d 958, 1107 (rel. Jun. 16, 1986). 17 In re Communications Protocols under Section 64.702 of the Comm'n's Rules and Regulations, GN Docket No. 80-756, Memorandum Opinion, Order, and Statement of Principles, 95 F.C.C. 2d 584, 603 (rel. Nov. 21, 1983) ( Third Computer Inquiry ), at 25. 18 Id. 5

Frame Relay Service to Title II regulations would chill investment in ATM technologies. 19 The Commission concluded that [t]reating frame relay as a basic service provided competitive access to the underlying basic service of facilities-based carriers who are often better able to implement new communications technologies [and] allows competing enhanced service providers to more easily enter and compete in the market for such technologies. 20 The evolution of Signaling Systems Seven ( SS7 ) technology is another example where the Commission has asserted regulatory authority over new technologies, particularly new technologies involved in the exchange of communications from one carrier to another. In the mid-1990 s SS7 replaced multi-frequency ( MF ) signaling because SS7 took the call completion information away from the voice portion of the call, and placed this information on separate D links running on a parallel network using packet technology. 21 This separation led to an increased capacity with the call set up information, leading to the explosion of caller ID, voice mail, call waiting and caller blocking services, and similar previously unavailable services. There was not a chill on signaling technology investments when the Commission applied its regulations to ensure that carriers could exchange communications using SS7 technology. Even more recently, the FCC has reaffirmed that there is a clear obligation on the incumbent LECs, pursuant to sections 251(a), 251(c)(2) and our rules implementing these requirements, to provide 19 In re Matter of Independent Data Communications Manufacturers Ass n, et al., DA 95-2190, Memorandum Opinion and Order, 10 FCC Rcd. 13717, 13721 (rel. Oct. 18, 1995), at 26, 35. 20 Id. 21 In re Matter of Rules and Policies Regarding Calling Number Identification Service Caller ID, CC Docket No. 91-281, Memorandum Opinion and Order on Reconsideration, Second Report and Order and Third Notice of Proposed Rulemaking, 10 FCC Rcd 11700, 11704 (rel. May 5, 1995), at 7. 6

for interconnection between their signaling networks and the signaling networks of alternative providers. 22 Like prior technological innovations, the technology of an IP infrastructure provides the promise of new consumer services (like online video, photos, and music), and improved efficiencies for carriers. The Commission should not and does not lose its authority to regulate the exchange of these voice calls just because the industry adopts a newer, more efficient delivery mechanism. Indeed, today s evolution of IP interconnection is no different than the technology advancements that the Commission was considering in the 1980s. In the 1980s, carriers were beginning to offer protocol conversion services to end users, and the Commission concluded that the end-user protocol conversion services would not be subject to regulation. 23 However, the Commission applied its regulations over the basic service functionalities of call signaling to ensure communications exchange between and among carriers, including the communications exchange of the enhanced services that were not subject to Commission regulation. In many ways, today s issues are almost identical to the issues faced by the FCC then. Now, parties advocate that the Commission needs to deregulate VoIP and other enhanced services to ensure the continued development of those end user services. However, the Commission does not need to deregulate the interconnection methodologies between carriers to promote the evolution of end user services. 22 In re Matter of Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, Deployment of Wireline Service offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147, Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd. 16978, 17327 (rel. Aug. 21, 2003), at 548. 23 See e.g. 47 C.F.R. 64.702; Third Computer Inquiry, 95 F.C.C. 2d 584, 603 (1983). 7

II. AT&T Fails To Demonstrate That The Commission May Forbear From All Regulations Perhaps recognizing the extraordinary nature of its request, AT&T ventures to identify Commission authority for its regulation-free experiments in passing. 24 AT&T argues that 47 U.S.C. 160(a) permits the Commission to forbear applying its rules, and [a] fortiori, those criteria are certainly satisfied when the request is simply for forbearance on a trial basis in a few markets. 25 AT&T is wrong. None of the factors of Section 10(a) are satisfied. 47 U.S.C. 160(a) permits the Commission to forebear from applying any regulation or any provision of this chapter if the Commission determines three factors are present: (1) enforcement of the particular regulation is not necessary to ensure just and reasonable charges, practices, classifications or regulations, and the forbearance is not unjustly or unreasonably discriminatory ; (2) enforcement of the regulation is not necessary for consumer protection; and (3) a forbearance is consistent with the public interest. As to the third prong, the Commission shall consider whether forbearance will promote competitive market conditions, including the extent to which such forbearance will enhance competition among providers of telecommunications services. 26 The three prongs of 10(a) are conjunctive. The Commission could properly deny a petition for forbearance if it finds that any one of the three prongs is unsatisfied. 27 AT&T has the burden of demonstrating each of the prongs is satisfied. 28 24 AT&T Petition, at 22-23; AT&T Comments, at 4. 25 Id. (emphasis in original). 26 47 U.S.C. 160(b). 27 Cellular Telecomms. & Internet Ass n v. FCC, 330 F.3d 502, 509 (D.C. Cir. 2003). 28 Qwest Corp. v. FCC, 689 F.3d 1214, 1225-26 (10 th Cir. 2012), citing In the Matter of Petition to Establish Procedural Requirements to govern Proceedings for Forbearance Under Section 10 of the Communications Act of 1934, As Amended, 24 FCC Rcd 9543, 9554-55 (2009), at 20. 8

AT&T fails to carry its burden as to each of Section 10(a) s three prongs. First, AT&T makes no effort to demonstrate the first factor. As described above, numerous comments were submitted demonstrating that AT&T uses its unregulated entities to dominate the marketplace and extract discriminatory terms and conditions for interconnection from its competitors. A competitor s only recourse under these circumstances is Section 251 and 252. In addition, AT&T s statements that the Commission will be monitoring the trials essentially turn this prong on its head. 29 Forcing aggrieved carriers to petition the Commission under uncertain standards during a regulation-free experiment shifts the burden from AT&T to the aggrieved carriers to demonstrate that a regulation is not necessary to ensure just and reasonable charges, practices, classifications or regulations. AT&T s Petition and comments are tellingly devoid of any empirical data and justifications beyond complaints about its dwindling wireline subscriber count. These AT&T complaints are insufficient to demonstrate all regulations are not required to ensure just and reasonable charges, practices, classifications or regulations. As for the second and third prongs, AT&T argues that there is no risk of consumer harm by its regulation free experiments because they will be geographically limited and because they will be subject to the Commission s full scrutiny during their duration. 30 AT&T is again mistaken. The public interest and safety of consumers in the chosen trial markets may be harmed by AT&T regulation-free trial. Home security systems, personal and medical monitoring, and telehealth applications depend on the current TDM technology. 31 AT&T s Petition fails to address these concerns. AT&T s Petition is also devoid of references as to how E-911 will be handled during its regulation-free experiment. And, AT&T has failed to explain how the 29 AT&T Comments, at 4. 30 Id. 31 Comments of AARP, In the Matter of the Technological Transition of the Nation s Communications Infrastructure, GN Docket No. 12-353 (filed Jan. 28, 2013) ( AARP Comments ), at 13-14. 9

competitive marketplace will be enhanced by nullifying pro-competitive interconnection obligations, especially in light of AT&T s use of regulated and unregulated entities to dominate the marketplace even with Commission rules in place. 32 In sum, AT&T has failed to carry its burden under all three of the prongs of Section 10(a). Attempting to bolster its weak arguments on this point, AT&T argues that the Commission could state that special circumstances warrant a deviation from the general rule, and such deviation will serve the public interest. 33 AT&T s argument here fails on two fronts. First, 47 C.F.R. 1.3 applies to waiver of the Commission s rules not U.S. Statutes such as Section 251 and 252. Second, 47 C.F.R. 1.3 requires good cause shown, which is demonstrably lacking in AT&T s Petition. As the Court stated in WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. Jun. 24, 1969), [s]ound administrative procedure contemplates waivers, or exceptions granted only pursuant to a relevant standard [t]he agency may not act out of unbridled discretion or whim in granting waivers any more than in any other aspect of its regulatory function. AT&T s Petition presents no evidence as to good cause for the Commission to grant a waiver. AT&T s general complaints about its responsibilities as an ILEC are insufficient. In its Petition, AT&T asks the Commission to waive all Commission rules and statutory regulations to conduct a regulation-free experiment based on its unfounded assertions that no regulations are required in an all-ip universe. AT&T s Petition presents no legal justification for its request and presents no empirical data demonstrating that a forbearance would not harm consumers and the marketplace. The Commission should deny AT&T s request. 32 See 47 U.S.C. 160(b). 33 AT&T Comments, at 4, citing Report and Memorandum and Opinion and Order, Section 272(f)(1) Sunset of the BOC Separate Affiliate and Related Requirements et al., 22 FCC Rcd 16440, 16483-84 88 n. 256 (2007) and 47 C.F.R. 1.3. 10

CONCLUSION For the reasons stated herein and in its initial comments, the Commission should deny AT&T s request for a regulation free experiment and explicitly reject AT&T s position exempting IP interconnections from Sections 251 and 252. Submitted: February 25, 2013 Respectfully submitted, PEERLESS NETWORK, INC. Henry T. Kelly Michael R. Dover KELLEY DRYE & WARREN LLP 333 W. Wacker Drive, 26 th Floor Chicago, Illinois 60606 Telephone: (312) 857-2350 Counsel for Peerless Network, Inc. 11