If your company provides interconnected VoIP (“VoIP”) services and obtains telephone numbers directly from the North American Numbering Plan Administrator or Pooling Administrator (or is planning to), you will want to continue reading this Client Advisory. In the federal government’s ongoing campaign to reduce the scourge of illegal and unwanted robocalls flooding the phones of consumers and the customer service centers of businesses in the U.S., the Federal Communications Commission (“FCC”) has proposed rules that would make it more difficult for a VoIP service provider to qualify and obtain direct numbers in the first instance, and in the second, imposing additional regulatory compliance burdens once qualified and procuring direct numbers from the administrators.
On August 5, 2021, the FCC adopted a Further Notice of Proposed Rulemaking (“FNPRM”) that seeks comments on proposed changes to the rules that allow interconnected VoIP providers to obtain direct access to telephone numbers from the North American Numbering Plan Administrator (“NANPA”) or the Pooling Administrator. Chief among the proposed changes is a requirement for the applicant to comply with anti-robocalling rules. Other proposed changes include establishing “guardrails” to protect limited numbering resources, creating safeguards against national security risks, decreasing the opportunity for regulatory arbitrage, and fostering public safety.
While Section 52.15(g) of the FCC’s rules, 47 C.F.R. § 52.15(g), already sets forth significant requirements for VoIP providers to obtain direct access to telephone numbers, the Commission’s experience with “nearly 150 VoIP direct access … applications” has found the existing rules to be deficient. FNPRM at ¶ 10. The existing rules do not require the applicant to submit:
- certifications concerning compliance with anti-robocalling, law enforcement assistance, and other important legal obligations;
- technical information demonstrating that they offer interconnected, as opposed to one-way or non-interconnected, VoIP; or
- details on any foreign ownership. (internal footnote omitted).
Staff has, however, requested this information on selected applications. Id. It has also placed applications involving foreign ownership on a non-streamlined review track that has included national security review by United States Executive Agencies. Id. at ¶¶ 10, 23. Finally, the Commission notes that, recently, there have been challenges to applications based on charges that applicants have engaged in improper conduct with respect to intercarrier compensation, call routing and call blocking. Id. at ¶ 10.
In response to its experience with VoIP number access applications and in light of the continuing robocall problem, the FCC is proposing a number of changes to its rules and is seeking comments on them. The proposed changes come in six general areas: 1) required information for 52.15(g) applications; 2) additional review for applicants with foreign ownership; 3) a duty to update changes in ownership within 30 days of occurrence; 4) additional emphasis on the obligation of authorization holders to comply with state numbering rules; 5) new authority for the Wireline Competition Bureau to control the speed of application processing and to reject applications from those with bad records or prior robocall involvement; and 6) whether one-way VoIP providers should be able to obtain direct access to numbers.
Comments are due no later than 30 days after publication of the FNPRM in the Federal Register, with reply comments due 30 days after the comment filing deadline.
The FNPRM makes numerous specific proposals and asks many questions. This advisory will not address all of them but rather, will highlight some key proposed changes.
The FCC proposes to require an applicant to:
- certify that it will use numbering resources lawfully; that it will not encourage nor assist and facilitate illegal robocalls, illegal spoofing or fraud; and will take reasonable steps to cease origination, termination, and/or transmission of illegal robocalls once discovered;
- certify that it has made a robocall mitigation plan (“RMP”) database filing;
- certify that it complies with 911 and CALEA requirements;
- address, in a yet-to-be-determined manner, restrictions against access stimulation;
- prove compliance with FCC Forms 477 and 499 requirements;
- provide more technical information on proof of interconnected VoIP service;
- provide specific information on interconnection agreements to access the PSTN; and
- avoid providing untruthful information or omitting material information in a filing under pain of dismissal
The Commission would make changes for applicants with foreign ownership, requiring:
- disclosure of any foreign ownership of 10% or more, including attributed ownership;
- disclosure of any affiliation with any foreign carrier;
- submission of these applications to the Executive Branch Agencies for review of national security, law enforcement, foreign policy or trade policy issues; and
- potential use of a set of standard questions for the review process
The Commission seeks to require grantees to update certain information within 30 days of a change, including:
- contact information;
- ownership; or
- any other information
Compliance with State Law
The FCC would clarify with which state PUC requirements grantees must comply, including
- all numbering regulations specified in the VoIP Direct Access Order;
- potentially, other state regulations to do business in the state at issue; and
- possibly a requirement to have minimum state contact to obtain numbers in each state
Bureau Authority to Review Applications
The Commission would make a specific delegation of authority to review applications to the Wireline Competition Bureau for public interest issues. Besides traditional issues, such as concerns regarding illegal robocalling, arbitrage, and foreign ownership, the Bureau could hold up applications to review:
- the identity and records of an entities’ owners; and
- any connection to prior robocalling
Also, the Commission seeks comments on whether and under what conditions, the Bureau can revoke a VoIP provider’s number access authority.
Expanding Direct Access to Numbering Resources
At the same time the FCC is proposing to tighten the rules for interconnected VoIP direct access to numbers, it is also seeking comments on whether one-way VoIP providers and other users of numbers (e.g., specialized platforms with a VoIP components) should also be eligible for direct access to telephone numbers. And, if such access were to be allowed, what conditions should be imposed on access and the likely effect of expanded access on robocalling and traceback efforts?
Most of the proposed changes would simply codify the Commission’s existing practices for evaluating direct access applications. For example, unless an applicant volunteered its ownership information, 911 and CALEA compliance and Form 477 status, the staff has requested this information during processing and also held the application until information was provided. Similarly, the staff is already referring applications from VoIP providers with foreign ownership to the Executive Branch Executive Agencies for review.
Also, given the Commission’s broadly sweeping STIR/SHAKEN and RMP registration requirements, the proposals to require information about robocalling mitigation are not significant new burdens.
The significant changes are, in our view:
- a proposed mandate for applicants to submit to other state regulations to do business in the state at issue;
- a possible requirement to have minimum state contact to obtain number in each state; and
- the prospect of opening number access to non-interconnected VoIP providers and the conditions imposed on those entities
Today, the FCC has greatly limited state PUC authority over VoIP providers but there are several states that push the line by tying access to numbers with the imposition of more traditional LEC regulations. Unless the FCC clearly prescribes which state regulations are permissible, expect more state PUC efforts to regulate VoIP providers and, perhaps, even platform providers using VoIP.
A similarly open-ended proposal is the one that would require a VoIP provider to have minimum contacts with a state before it could obtain telephone numbers there. Would a provider need equipment in the state or employees? One of the beauties of the IP network is that service can be provided in many locations from a single location and encouraging market entry provides the competition needed to benefit consumers.
Extending direct access to telephone numbers to one-way or non-interconnected VoIP providers or, especially to platforms using VoIP, might provide those entities with better control over their use of telephone numbers. But it could also subject these operators and their services to new regulations. It seems logical to apply the same regulations to non-interconnected VoIP services that are applied to interconnected VoIP services if they receive the same number access authority. Of course, one could avoid any new regulations simply by not filing for direct access.
NEED HELP WITH ROBOCALL MITIGATION AND COMPLIANCE?
|The CommLaw Group Can Help!|
Given the complexity and evolving nature of the FCC’s rules, regulations and industry policies & procedures around Robocall Mitigation and Compliance issues (e.g., Stir/Shaken, TRACED Act, FCC Rules & Regulations, US Telecom Industry group, ATIS, NECA, VoIP Numbering Waivers, Know Your Customer (effective May 6, 2021) and the private sector ecosystem), and anticipating the potential torrent of client questions and concerns, The CommLaw Group formed a “Robocall Mitigation Response Team” to help clients (old and new) tackle their unique responsibilities. The potential blocking of your company’s voice (and other) traffic due to non-compliance is very real, and very scary. Your company must be certain it achieves sufficient comfort knowing that it is doing everything it can, as efficiently and intelligently as it can, to achieve the level of compliance needed to avoid sleepless nights as the June 30, 2021 deadline approaches.
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 Most VoIP providers obtain telephone numbers from Local Exchange Carriers (“LECs”) but, in 2015, the Commission allowed VoIP providers meeting FCC requirements to obtain direct access to numbers from the NANPA or the Pooling Administrator. Numbering Policies for Modern Communications, Report and Order, 30 FCC Rcd 6839 (2015) (“VoIP Direct Access Order”), appeal dismissed, NARUC v. FCC, 851 F.3d 1324 (D.C. Cir. 2017).