Phone service is phone service and emergency obligations apply regardless of technology, CPUC decides

by Steve Blum • , , , ,

Telephone companies have to follow disaster readiness and response rules laid down by the California Public Utilities Commission, regardless of the technology they use. That’s the CPUC’s opinion anyway. In a sharply written unanimous decision published yesterday, commissioners rejected challenges to telephone (but not broadband) emergency response obligations that they imposed on incumbent telcos, cable companies, mobile carriers and VoIP providers alike last year.

The regulatory logic that underpin those obligations also formed the basis for the CPUC’s initial response to the covid–19 emergency and the disaster resiliency standards for communications services that it recently adopted. The same cast of characters are fighting those edicts using similar arguments, so yesterday’s decision is both a good indication of how the commission will respond and how it will defend itself when the fight moves to federal courts, as it surely must.

AT&T, Charter Communications, Comcast, Frontier Communications and their lobbying front organisations claimed, among other things, that the CPUC’s disaster relief requirements were preempted by federal law because when phone service is delivered via 21st century voice over Internet protocol (VoIP) technology instead of 19th century copper wires and exchanges it magically transmogrifies from a telecommunications service to an information service.

Not true, the commission said. First of all, a federal court has already determined that telephone service is defined by the service provided and not by the technology used…

As the Court’s analysis demonstrates, the phrase “to facilitate communication by telephone” encompasses services beyond traditional landline service if the service facilitates “two-way communication by speaking as well as by listening,” regardless of the “[t]he exact form or shape of the transmitter and the receiver or the medium over which the communication can be effected.” Wireless service and VoIP service both facilitate two-way communication by speaking as well as by listening.

Second, while generally upholding the Federal Communications Commission’s repeal of network neutrality rules, a federal appeals court in the District of Columbia said last year that there’s no blanket preemption of state regulation of information services…

The [D.C. appeals court]…presents a more reasoned analysis, which preserves state authority over consumer protection matters that the FCC has either no authority to preempt or where no actual conflict exists. [It] supports the Commission’s consumer protection efforts in the Decision. Therefore [the telco and cable company] preemption argument fails.

Similarly, the CPUC rejected arguments made by AT&T and the mobile industry’s lobbying mouthpiece that the FCC reigns supreme over any wireless service. The decision said emergency response requirements have nothing to do with market entry or the price of service, which the CPUC cannot regulate per federal law, but are instead “‘other terms and conditions’ of wireless service”, which the same law firmly places under state jurisdiction.