[00:00:03] Speaker 00:
Case number 15-1497, National Association of Regulatory Utility Commissioners Petitioner versus Federal Communications Commission at L. Mr. Ramsey for the petitioner, Mr. Dunn for the respondent, and Ms.

[00:00:16] Speaker 00:
Barner for the intervener.

[00:00:18] Speaker 02:
Mr. Ramsey.

[00:00:20] Speaker 05:
Good morning.

[00:00:23] Speaker 05:
Good morning.

[00:00:23] Speaker 05:
With the federal telecommunications law, classifications and definitions matter.

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The very heart of the 1996 legislation is the FCC's Title II authority, which only applies to telecommunication service providers.

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In this case, the FCC has bestowed on so-called interconnected voice over IP, which I'll call interconnected VoIP providers, the benefits of local non-reportability.

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But they purport not to classify interconnected VoIP as either a telecommunication service or information service, but they never explain why.

[00:00:57] Speaker 03:
I know we're going to ask you about standing.

[00:01:01] Speaker 05:
Sure.

[00:01:02] Speaker 03:
Why don't you address that?

[00:01:04] Speaker 05:
Oh, standing.

[00:01:05] Speaker 03:
Well, respectfully... Let me say, I understand your brief says it's self-evident.

[00:01:09] Speaker 03:
Yes.

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But, respectfully, I'm not clear why you think that.

[00:01:18] Speaker 05:
Well, Your Honor, if you look at the reason for the order is to avoid state certification requirements.

[00:01:25] Speaker 03:
uh... in the order they eliminate state certification requirements

[00:01:33] Speaker 05:
No, no.

[00:01:34] Speaker 05:
What it means is that the only control and the only way that we – states are involved in number portability in a range, and actually the FCC points out that the state involvement has been historically quite important in preventing the exhaust of numbers.

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We care about area codes.

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We care about area code splits.

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We've always played that role.

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The control we have is if there's a number – if the carrier's certified, when they ask for numbers, we know about it, we have more control over what happens, that we get more direct reporting.

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So –

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numbers?

[00:02:11] Speaker 05:
Well, there's more than that, but we have less direct control and reporting on number exhausts, but that's not all.

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It's not the only reason why we're impacted here.

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We're impacted here because the very fact that they have not classified the service impacts a number of state roles under the act.

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We're right now at the tail end.

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In this order, they remind carriers again because they're not

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telecommunications classify that they have interconnection obligations.

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I understand your argument that's sort of like a parent's patria in terms of competition and protection of the consumer.

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Right.

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But if we're talking about injury in fact, I just need to understand that a little bit more.

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And maybe you can point me to something, but in your brief you said it was self-evident and then in the reply brief you basically take the same

[00:03:09] Speaker 05:
Well I...

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I, the injury in fact is that we, the state certification, the only point of control we have in there, that's the self-evident part is.

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They're removing the state certification requirement, but that's not self-evident.

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But the injury in fact goes far beyond that.

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The state role is impacted in terms of not classifying here.

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The state role is impacted in a much greater fashion.

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They're giving them the benefits of Title II classification without requiring them to comply with all the other parts of Title II.

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And that's

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in this particular case.

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And so from the State Commission's point of view, it's your loss over control of numbers.

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That's part of it.

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Yes, Your Honor.

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And what's the other?

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The other part is the state role in protecting service quality for people that are competing to provide local telecommunication service is different between the two competitors.

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The carriers have taken a position at the state level, Vonage and others, that they're not subject to state oversight, and that's been a 12-year litigation marathon.

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When the statute in 123B

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253B specifies the state authority with respect to service quality, with respect to protecting the public health and safety, is preserved with respect to telecommunication services, even with respect to interstate services.

[00:04:28] Speaker 02:
But the statute doesn't say that the FCC gets the final word on this.

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You're litigating your theory in those cases is that these are telecommunications providers, right?

[00:04:41] Speaker 05:
Sorry, can you repeat the question?

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You said you've been litigating for 12 years.

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Yes, sir.

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And that's litigation ongoing right now.

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That's right.

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So the failure of the FCC to rule on this doesn't preclude state authority.

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That, in the end, will be up to a judge who decides whether or not you have authority, right?

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in the cases that you're litigating.

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In the cases that we're litigating, the judge is involved there, Will, but they're influenced by the lack of classification.

[00:05:05] Speaker 02:
Well, if the FCC hasn't ruled, then they have nothing to defer to, and they'll decide de novo whether or not what the classification is, right?

[00:05:15] Speaker 02:
Yes, sir.

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So you're not harmed in that sense.

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You go to court.

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If a judge concludes that these are really telecommunications carriers, then you've got your control, right?

[00:05:29] Speaker 05:
We don't, respectfully, in this particular case, in terms of injury in fact, and in terms of vacating the order, no, we do not, because they established a federal bypass.

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So granted, if there's remand and it's classified as a telecommunication service, they'll have to take another look at that.

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But no, we have definitively lost a certain measure of control with respect to the designation of numbers.

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That's clear, no matter which way you got this.

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And what role would the state play in the designation of numbers if there weren't a bypass?

[00:06:00] Speaker 05:
Well, the same role that we play right now.

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We get reports, we get very close track of how numbers are utilized by the carriers and we're involved.

[00:06:12] Speaker 02:
What's the state interest in air code splits?

[00:06:16] Speaker 05:
It's a very, you know, Hobgott members have got death threats over air code splits.

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We're very interested in... Who's got death threats?

[00:06:22] Speaker 05:
Literally, death threats over back in the early days when we were doing splits instead of overlays, it's less common now with overlays, but the state commission is still... How do we tell where the telephone number is coming from now?

[00:06:33] Speaker 02:
Everybody seems to carry their number all over the country.

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Is it still a big issue?

[00:06:36] Speaker 05:
With geographic codes, yes, it still is.

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I would grant you over time we will move to a stage where that won't be as significant, but right now the states very jealously are concerned about the use of numbers in the numbering system.

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So.

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So the commission argues, piggybacking on what Chief Judge has been talking about, that what you're upset about as far as this order is concerned is not the actual outcome of this order in terms of the bypass, but they argue, or it argues, you're only concerned about the rationale employed to reach that result.

[00:07:22] Speaker 05:
I'm concerned about the outcome.

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You know, it's interesting.

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The outcome here is if they classified as telecommunication service, they have to go back.

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The whole rationale for cutting the states out has to be modified to a certain extent.

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We'll be able to make a different case below.

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I disagree with the whole idea that we're not injured

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We're seeking classification.

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We've been seeking classification in other contexts for years.

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This is the same thing that happened in the 11th Circuit.

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In the 11th Circuit, they basically said, we're going to give you access to universal service money if you're not a telecommunications carrier.

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And then when we challenged them in court, they filed a new brief and said, no, yeah, you have to be designated as an essential telecommunications carrier.

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That's what happened there.

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The court basically said,

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No, you can't have access to this Title II benefit if you're not a Title II carrier.

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This is the same thing, not reportability.

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And we are impacted across the board by the lack of classification here.

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We've only come in twice really in court where there's been more of a direct impact because we have certified interconnected providers as telecommunications carriers to give them access to universal service money.

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That happens.

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And I cited that in the briefs before the Tenth Circuit.

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And here we're in the midst of, again, there are interconnections.

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We're trying to fulfill our duty to litigate interconnection agreements between competitors.

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That's one of the duties Congress assigned us.

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And right now, AT&T, there's a case that went to oral argument this month.

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talking about AT&T and saying, well, ISP traffic is not classified.

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The commission says, we urge you to do it, but it's not classified.

[00:09:03] Speaker 05:
Well, it's very hard if you're in federal court and the commission hasn't made a classification to get the court to rule the Melville if the court's saying the issue's outstanding for the next 12 years.

[00:09:11] Speaker 02:
That's a litigation cost.

[00:09:12] Speaker 02:
Yes, it is.

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But we don't usually regard the fact that you have to litigate your point as enough to create standing.

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So you have to have something a little bit more than that.

[00:09:22] Speaker 02:
I take it the strongest argument I've heard so far is the argument that

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with respect to numbering that they have the consequences the FCC has avoided your ability to control numbering.

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Is that fair with respect to this?

[00:09:36] Speaker 02:
Yes, sir.

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That's your strongest argument?

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So that's what I want to hear from the other side about.

[00:09:43] Speaker 05:
You can go on.

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The FCC's theory of the case here basically requires them to make, you know, something about the fact that they didn't explain why it was not a telecommunication service.

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They have, they're basically relying on their plenary authority under 251E1 overnumbering to move forward here, which means they have to make the legal case free to uphold the order.

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They have to have made the legal case

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that the service that's being provided is either a hybrid service or an information service.

[00:10:18] Speaker 05:
They're not relying on the fact it's a telecommunication service and there are five problems with that in the order.

[00:10:23] Speaker 05:
The first one is obviously they don't even mention ancillary jurisdiction.

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If this is, in fact, not a Title II service, they have to talk about Title I. It's mentioned only in footnote 185 to, I believe, paragraph 43.

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I may be wrong about that.

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But it's mentioned only in passing.

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Now, the FCC did ask about their ancillary jurisdiction in the 2013 notion of proposed rulemaking that took you to this order in paragraph 85.

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They specifically asked if

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granting this porting capability is ancillary to their authority under 251 and 201, but they don't mention it anywhere in the order.

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The second deficit in the order is that they make, there's no explanation in there at all about the... I thought their argument about their authority comes from their exclusive jurisdiction over the numbering system.

[00:11:14] Speaker 02:
Isn't that their argument?

[00:11:15] Speaker 05:
That's correct, Your Honor, but for you to uphold them over

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for you to uphold them because they have exclusive jurisdiction over numbering for that to work.

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You have to have a range of possibilities here.

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And one of them for that to work is that they're not a telecommunication service provider.

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And if they're not a telecommunication service provider, then you have to discuss ancillary jurisdiction.

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In fact, every one of the FCC's own prior orders discussing their assertion of authority over void has mentioned and discussed ancillary jurisdiction at length.

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They did not mention it in this case.

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And by the same token, there's a prescription against imposing on providers that are not telecommunication, imposing commentary duties like local portability on providers that are not providing telecommunication services.

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And 153 of 51 of the act that this court recognized in Verizon versus SCC from 2014, I think it was

[00:12:15] Speaker 05:
at $740 at $650 in the decision.

[00:12:22] Speaker 05:
There's no explanation for that, and I did raise it below.

[00:12:24] Speaker 05:
It was brought to their attention.

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The other deficit that you see in theirs is – and probably the biggest one – is they're relying exclusively on this 251 General Authority, 251E1 General Authority over numbering.

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And if you look at what they argue in the decision at 56 to 57,

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They used their authority there to give definition to number portability, rather than looking at the definition that Congress provided in 135.

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153-37.

[00:13:04] Speaker 05:
There's a definition there.

[00:13:06] Speaker 05:
They mentioned it in passing, but they never talk about the definition that Congress provided.

[00:13:09] Speaker 05:
Now, there's a reason why Congress puts definitions in.

[00:13:12] Speaker 05:
Usually, it's to constrain the FCC's authority in some way.

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In other words, I give you a definition so that you can't do what they did in this particular case.

[00:13:22] Speaker 05:
They made up their own definition instead of paying attention to the congressional one.

[00:13:26] Speaker 03:
So what is that number of portability is defined

[00:13:32] Speaker 03:
in terms of telecommunications services.

[00:13:36] Speaker 05:
Yes.

[00:13:37] Speaker 05:
The portability is defined.

[00:13:38] Speaker 05:
Excuse me, Your Honor.

[00:13:39] Speaker 03:
And so that limits the FCC's authority to

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entities providing telecommunication services?

[00:13:51] Speaker 03:
Yes.

[00:13:51] Speaker 05:
The entire Title II regime is focused on telecommunication services.

[00:13:54] Speaker 05:
It's not unusual to think that the North American Numbering Plan, an authority over numbering, would be limited to telecommunication services, which if you look at 251E2, it specifically say telecommunications carriers shall

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pay for, uh, number number, affordability number administration.

[00:14:12] Speaker 05:
They don't say telecommunications service providers and information service providers and anyone else.

[00:14:17] Speaker 05:
The plain text there.

[00:14:18] Speaker 03:
Yes, ma'am.

[00:14:20] Speaker 03:
Mm hmm.

[00:14:27] Speaker 03:
Overlooks the definition

[00:14:43] Speaker 03:
Yes, ma'am.

[00:14:59] Speaker 03:
That's your argument.

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And there's no ambiguity.

[00:15:02] Speaker 05:
That's your second argument.

[00:15:03] Speaker 05:
I don't – respectfully, Your Honor, there can't – there are three definitions here, and the FCC doesn't even discuss them in the order.

[00:15:09] Speaker 05:
So it's – you know, to the extent that there's an ambiguity, there's no discussion.

[00:15:12] Speaker 05:
They mention 150 – 153 – the definition 37 in passing in paragraph 56, 57, but there's no exegesis, if you will, of the definition.

[00:15:22] Speaker 05:
And that definition includes two others.

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They basically come up with their own definition without seriously considering in the order the definition that Congress provided, which presumably would be a limitation of what they could do.

[00:15:35] Speaker 02:
So on your theory, would number portability be limited to local exchange carriers?

[00:15:42] Speaker 02:
I understand you understand, because 251, the only obligation it discusses is the obligation of local exchange carriers.

[00:15:49] Speaker 05:
Yes, Your Honor.

[00:15:49] Speaker 05:
Well, certainly,

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I believe a strict reading of the statute would require that.

[00:15:56] Speaker 02:
To the extent that they depart from that, it would have to be a telecommunication service.

[00:15:59] Speaker 02:
Well, no, no, but the question is can they depart at all?

[00:16:02] Speaker 02:
Right.

[00:16:03] Speaker 02:
And I take it Nuruk's position is not that only Lex can be required to port.

[00:16:10] Speaker 02:
Well, number portability is defined in terms of a local... I'm not looking at... I'm looking at 251.

[00:16:17] Speaker 05:
Well, no, my position... Respectfully, Your Honor, I... No, my network's position is that a local carrier, which is a local exchange carrier, terminating local calls, would be... No, my position would be that the definition of normal portability by itself, which talks about porting your local service from one provider, one local telecommunication service provider, to another local telecommunication service provider,

[00:16:38] Speaker 05:
Yes, it's limited to local exchange.

[00:16:39] Speaker 02:
Those are the only kinds of carriers that can be required to port, or local exchange carriers.

[00:16:45] Speaker 05:
Well, if you're going to use the definition of number portability, yes.

[00:16:49] Speaker 02:
You have to make up a new definition.

[00:16:50] Speaker 02:
It's kind of hard to have the conversation because... Well, it's your position that they have to use the definition of number portability.

[00:16:56] Speaker 02:
That's correct.

[00:16:57] Speaker 02:
So then your position is that only Lex can be required to port.

[00:17:01] Speaker 02:
Yes, sir.

[00:17:03] Speaker 02:
Not just telecommunications carriers, but specifically only Lex.

[00:17:08] Speaker 05:
Yes, sir.

[00:17:10] Speaker 05:
And they've only, you know, if you look at the order, if we're talking about CMRS, the CMRS, the commission has authority to designate them as LECs for purposes of number portability and other title to provisions.

[00:17:23] Speaker 05:
And 2321C, discussing treatment of them as commentaries, the Congress specifically gave the SEC authority to

[00:17:33] Speaker 05:
exempt them from certain provisions, and in the definition section of local exchange carry, it specifically says you can treat them like elect.

[00:17:41] Speaker 05:
Now, if they're siding with the fact that they didn't actually classify them as elect, even though they are a telecommunication service provider, you have to point to the fact that Congress did give them that authority.

[00:17:49] Speaker 05:
So them getting the fact that someone forgot to appeal the fact that they had to be designated as elect to do this, which was tried, but it was 60 days after the order had gone into place.

[00:18:00] Speaker 05:
It doesn't change the fact that Congress said— I think you're over-anticipating the argument.

[00:18:05] Speaker 02:
Oh, I'm sorry.

[00:18:05] Speaker 02:
I hadn't thought of all that additional material.

[00:18:07] Speaker 05:
Oh, OK.

[00:18:08] Speaker 05:
Well, I—way over time here, so I—thank you.

[00:18:11] Speaker 02:
All right, good.

[00:18:12] Speaker 05:
Thank you.

[00:18:16] Speaker 02:
All right.

[00:18:17] Speaker 02:
Mr. Duck.

[00:18:21] Speaker 02:
I think it would help us if you start with Stanley.

[00:18:23] Speaker 06:
All right, good morning, Your Honors.

[00:18:24] Speaker 06:
Matthew Dunn for the FCC.

[00:18:26] Speaker 06:
I want to jump into standing.

[00:18:27] Speaker 06:
As Your Honor indicated, and I believe Judge Collin and Judge Reuters may have indicated, the standing issue, we need to ascertain what New York asserts as the harm that its members experience from this order.

[00:18:42] Speaker 06:
And I understand there to be two flavors of harm.

[00:18:45] Speaker 06:
One is a lack of classifying the service at issue, and one is something to do with numbering.

[00:18:52] Speaker 06:
I'll actually start with the second one first.

[00:18:56] Speaker 06:
States play little, if any, role in actually assigning numbers.

[00:19:00] Speaker 06:
There's a national local number affordability administrator and a numbering administrator.

[00:19:08] Speaker 06:
So when a provider needs to go and get numbers, they don't need to, in that process, the state is not involved.

[00:19:15] Speaker 06:
Council discussed that states have some oversight of the area codes within their jurisdiction.

[00:19:27] Speaker 06:
It seems to be kind of a loose oversight that he described.

[00:19:30] Speaker 06:
I'm not sure exactly what the specific mechanics are of how a state would

[00:19:35] Speaker 06:
take action to guide whether or not a carrier gets numbers.

[00:19:39] Speaker 06:
But to the extent there is something, the Commission has actually anticipated that.

[00:19:44] Speaker 06:
So if we look at the order at paragraph 27, excuse me, actually I'll back up a little bit.

[00:19:50] Speaker 06:
There's sort of a summary paragraph, it might be easier, which is paragraph 24 on JA20.

[00:19:55] Speaker 06:
and JA-19.

[00:19:56] Speaker 06:
So the commission required VOIP providers to comply with commission rules related to numbering and also comply with guidelines, and I'm now at the top of page JA-20, comply with guidelines and procedures adopted pursuant to numbering authority delegated to states.

[00:20:14] Speaker 06:
So to the extent that states are doing something in this area, void providers still have to comply with that.

[00:20:19] Speaker 06:
We can also, and Mr. Ramsey also discussed, states like to keep a general eye on number exhaustion, on how fast these numbers are being used up.

[00:20:31] Speaker 06:
Under this procedure, void providers are actually required to file requests with numbers with state commissions 30 days before they go to get numbers, which is actually 30 days more notice than they would have had under the previous regime.

[00:20:42] Speaker 06:
So to the extent that there's some kind of state role to play with regard to numbers.

[00:20:46] Speaker 02:
Is there confusion about whether there is a state role or not?

[00:20:49] Speaker 02:
I mean, I would have thought that the FCC would know whether the state has a role in area code splitting, area code overlaps, area code caps, et cetera.

[00:20:59] Speaker 06:
Right.

[00:21:00] Speaker 06:
So for example, states get to decide whether or not

[00:21:06] Speaker 06:
The areas in that area code will be split into 1,000 blocks instead of 10,000 blocks.

[00:21:14] Speaker 06:
It's a way to cut the numbers up to smaller chunks so that they exhaust more slowly.

[00:21:20] Speaker 06:
So states do have ability there.

[00:21:23] Speaker 06:
They have some oversight over number reclamation, which is when an entity is not using the numbers.

[00:21:28] Speaker 06:
They can go to the entity gets certain.

[00:21:30] Speaker 02:
Are all these things preserved by the provisions of paragraph 24 that you're just reading?

[00:21:34] Speaker 06:
That's certainly the way I would understand the order.

[00:21:36] Speaker 06:
And there's nothing in the order below, or as I understand it, in Nehrux brief to contradict that.

[00:21:42] Speaker 03:
And the bypassing of the state certification, what impact does that have?

[00:21:48] Speaker 06:
Um, it is, it is true that, I mean, the, the, the reason, the point of the order is that, uh, entities can, uh, void entities can get numbers without certification.

[00:21:57] Speaker 06:
So that's certainly true.

[00:21:58] Speaker 06:
But the question is what harm follows from that.

[00:22:00] Speaker 06:
That's not, that's not what's clear to me from New York's brief.

[00:22:03] Speaker 03:
And so the state certification would have been what?

[00:22:08] Speaker 06:
Um, so in order, before the, uh,

[00:22:10] Speaker 06:
the order, in order to get telephone numbers, an entity would have to show that it's able to provide service, and to do that it would need to show a state certification of convenience and necessity.

[00:22:22] Speaker 06:
And it's true that that's no longer necessary.

[00:22:25] Speaker 03:
But I would just... So that's the concern expressed about consumer protection.

[00:22:32] Speaker 06:
No, I'm not exactly sure what that concern is, Your Honor, to be frank.

[00:22:35] Speaker 06:
And I invite Council for Nehru to explicate that a bit.

[00:22:40] Speaker 06:
I would assert it should have come up in the opening brief.

[00:22:42] Speaker 06:
But it's true that state commissions can still play a role in consumer protection.

[00:22:51] Speaker 06:
It's not clear to me what the nexus is with numbering there.

[00:22:56] Speaker 06:
To the extent that a party wanted to – maybe here we're getting into the second locus of harm asserted into general lack of classification.

[00:23:06] Speaker 06:
I think Nehru points to a number of things it can do with telecommunications entities that it can't do with VoIP because it's not classified as a telecommunications entity carrier, excuse me.

[00:23:19] Speaker 06:
So some of those things are arbitrating interconnection disputes and general consumer protection through the state utility regulator.

[00:23:29] Speaker 06:
I would just assert that all of those harms seem to be separate for me, as I understand them, from numbering what actually happened in this order, which is giving access to telephone numbers and maintaining number portability.

[00:23:42] Speaker 06:
So if there's a harm related that neighborhood starts, it's not able to implement consumer protection in the way it would like, or its members are not able to in the way it would like.

[00:23:51] Speaker 06:
Any such harm stems from the fact that VoIP service is not classified

[00:23:56] Speaker 06:
as a telecommunication service.

[00:23:57] Speaker 06:
It doesn't really have anything to do with giving these entities access to numbers.

[00:24:02] Speaker 06:
So we would assert that just for the purpose of this argument, we concede that may be a harm, but it doesn't stem from this order.

[00:24:13] Speaker 06:
Is that on standing?

[00:24:16] Speaker 06:
It sounded like Your Honor's generally understood our position on our authority under the statute.

[00:24:20] Speaker 02:
What about their argument focused on an oral argument about not referring to ancillary jurisdiction?

[00:24:27] Speaker 02:
I'm sorry.

[00:24:28] Speaker 02:
Not referring to ancillary jurisdiction at FCC.

[00:24:30] Speaker 06:
Right.

[00:24:30] Speaker 06:
It's true we did not rely on ancillary jurisdiction, but I don't think that's an infirmity in the statute if the jurisdiction that we did rely on is, excuse me, an infirmity in the order if the

[00:24:40] Speaker 06:
we did rely on valid authority.

[00:24:43] Speaker 06:
If I may speak loosely, it seems as though there's been a general dialogue over time between the FCC and this court about how much to rely on ancillary jurisdiction.

[00:24:51] Speaker 06:
And in these days, the signal seems to be, if we don't need it, we shouldn't rely on it.

[00:24:55] Speaker 06:
And if that's true, then we've been just trying to follow your instruction.

[00:24:59] Speaker 02:
I don't know.

[00:25:01] Speaker 02:
Reading our smoke signals is a little difficult, but I agree.

[00:25:03] Speaker 02:
All right.

[00:25:04] Speaker 02:
Fair enough.

[00:25:04] Speaker 02:
Fair enough.

[00:25:04] Speaker 02:
So the statute says what it says, and then we think exclusively.

[00:25:06] Speaker 02:
I see some other FCC lawyers in the audience.

[00:25:08] Speaker 02:
I'm sure that's what they do.

[00:25:09] Speaker 06:
Right, right.

[00:25:10] Speaker 06:
The statute gives us exclusive jurisdiction over numbers.

[00:25:13] Speaker 06:
We think it makes sense that that includes who gets numbers and when they have to give up the numbers so they can follow the customer.

[00:25:20] Speaker 03:
So what about the definition of large?

[00:25:24] Speaker 06:
So number portability is defined in the statute dealing with telecommunications carriers.

[00:25:29] Speaker 06:
I think that's not surprising because the only place that the definition is used in the entire act is in 251.

[00:25:35] Speaker 06:
And 251B requires local exchange carriers to provide number portability.

[00:25:41] Speaker 06:
So the term is used, is defined in a way that naturally flows from the way the term is used.

[00:25:47] Speaker 06:
I think what NABRUG has to show is that that definition necessarily limits the commission's authority to make a similar requirement of other entities.

[00:25:56] Speaker 06:
And I would assert there's not a good reason for such an interpretation, especially in a pro-competitive act like the 96th Act.

[00:26:02] Speaker 03:
So Congress wrote that the purposes of this chapter, unless the context otherwise requires, here's what these terms mean.

[00:26:14] Speaker 03:
So it defines telecommunications carriers specifically.

[00:26:21] Speaker 03:
And why does that mean the Commission may be weak?

[00:26:24] Speaker 06:
So it defines number portability or it defines a telecommunications carrier?

[00:26:33] Speaker 03:
Both.

[00:26:34] Speaker 06:
It defines telecommunications carrier in subparagraph 51.

[00:26:35] Speaker 06:
It certainly does.

[00:26:36] Speaker 06:
But the commission's position is that it's not treating Voigt providers in a way that is necessarily limited to telecommunications carriers.

[00:26:44] Speaker 06:
Right.

[00:26:45] Speaker 06:
So I don't think that that does work for Nehru.

[00:26:48] Speaker 06:
I understand their position to be number portability is defined in terms of telecommunications carriers.

[00:26:54] Speaker 06:
But I don't think it follows from that that only telecommunications carriers can be required to provide a similar kind of portability.

[00:27:07] Speaker 06:
in other words that i think that that definition which is used for specific purpose has to an awful lot of work for neighborhood to unambiguously forbid the commission from we're making that kind of work right so so this this uh... so that again with this uh...

[00:27:38] Speaker 03:
are telecommunications carriers.

[00:27:43] Speaker 03:
They're defined.

[00:27:45] Speaker 06:
Right.

[00:27:46] Speaker 06:
To be sure, we're not trying to include void carriers within telecommunications carriers.

[00:27:51] Speaker 06:
So the way the commission reads this is, this is a floor.

[00:27:54] Speaker 06:
These entities definitely must bear these costs.

[00:27:58] Speaker 06:
But I think it's at least ambiguous whether or not the commission can also require other kinds of entities to bear these costs, as it did.

[00:28:06] Speaker 06:
And this actually is not from this order.

[00:28:08] Speaker 06:
This came up in 2007 when the commission first required void providers to share in the costs of number portability and numbering administration.

[00:28:19] Speaker 02:
Was there a resistance by any of the voids?

[00:28:22] Speaker 06:
It wasn't appealed.

[00:28:22] Speaker 02:
It wasn't.

[00:28:23] Speaker 06:
That was because of the time.

[00:28:27] Speaker 06:
There was kind of a – we're not relying on some – that this is barred or anything of the like.

[00:28:34] Speaker 06:
We're just – I just mean to establish that the agency's been consistent in the way it's interpreted the statute for 10 years.

[00:28:41] Speaker 02:
Any further questions?

[00:28:42] Speaker 02:
Any further questions?

[00:28:43] Speaker 02:
Thank you.

[00:28:44] Speaker 02:
Thank you.

[00:28:44] Speaker 02:
Your arms.

[00:28:50] Speaker 02:
I think we have the intervener first.

[00:28:58] Speaker 01:
Good morning, Your Honor.

[00:28:59] Speaker 01:
Austin Bonner for Vonage, The Intervenors.

[00:29:02] Speaker 01:
We agree with the FCC's conclusion that its plenary authority in 251E1 provides ample justification for this order.

[00:29:11] Speaker 01:
And so I want to just add two points about the justiciability of this case.

[00:29:15] Speaker 01:
The first is, in trying to discern what the basis for NAIRC standing is, I think we need to look at what the status quo was before the order.

[00:29:24] Speaker 01:
And states have largely no control over void providers.

[00:29:29] Speaker 01:
state jurisdiction over VoIP had been preempted for a long time, and VoIP providers participated in the numbering system without any state oversight.

[00:29:38] Speaker 01:
I understand from NAWRG's reply brief that they think that there's a role in exhaustion that might have been affected by this order.

[00:29:46] Speaker 01:
We don't think that that's the case, largely because they presented that problem to the Commission, and the Commission solved it.

[00:29:51] Speaker 01:
our company Vonage is required to provide the kind of exhaustion reports and the notification that allows the state to continue to draw the reports in the numbering administrator and to monitor exhaustion.

[00:30:03] Speaker 01:
To the extent that there was ever a problem on that front, we just don't think it's an injury that should be recognized here.

[00:30:08] Speaker 02:
That's in which order requires exhaustion?

[00:30:11] Speaker 02:
In this order?

[00:30:12] Speaker 01:
This order.

[00:30:14] Speaker 01:
So there's a discussion that Mr. Dunn pointed to that requires both... You're talking about paragraph 24.

[00:30:19] Speaker 02:
That's right.

[00:30:21] Speaker 01:
Additionally, we think much of what Nehru has presented today are problems that the Commission has solved and interpretations that they made in 2007.

[00:30:29] Speaker 01:
So the discussion about number portability that you've heard today, I think it's important to understand that Vonage and other void providers have had numbering responsibilities and have paid for the system since 2007.

[00:30:42] Speaker 01:
And in the 2007 order, the Commission says,

[00:30:46] Speaker 01:
We understand our 251E1, that plenary authority, to provide all the authority we need to impose these requirements on VoIP providers.

[00:30:54] Speaker 02:
Let me ask you about the question that Judge Rogers was asking, that is E2.

[00:30:58] Speaker 02:
Do you agree then that, notwithstanding the fact that it said costs will be borne by all telecommunications carriers, that iVoIPs have to bear the costs regardless of whether or not they are telecommunications carriers?

[00:31:11] Speaker 01:
That's right.

[00:31:12] Speaker 01:
And Interconnected VoIP has borne those costs for a number of years.

[00:31:15] Speaker 02:
I just want to be sure.

[00:31:16] Speaker 02:
So Vonage is giving up any possibility of arguing in the future that it doesn't have to bear the costs because it's not a telecommunications carrier?

[00:31:23] Speaker 01:
We understand that to be a decision that was made a long time ago, and we've paid those costs since 2007.

[00:31:29] Speaker 02:
And we'll continue.

[00:31:30] Speaker 01:
Yes.

[00:31:31] Speaker 01:
If there are no further questions, I think that's all that we have.

[00:31:34] Speaker 01:
And we'd ask that you affirm the FCC.

[00:31:36] Speaker 02:
I appreciate it.

[00:31:37] Speaker 02:
You are the first intervener who has actually restricted herself to three minutes.

[00:31:43] Speaker 02:
And we're going to be citing that as a precedent here.

[00:31:49] Speaker 02:
All right.

[00:31:51] Speaker 02:
Mr. Ramsey, does he have any time left?

[00:31:54] Speaker 02:
all right but that's all right but she only took three i mean she took less than three and the fcc took less than the full time so you have two minutes left well you're very kind your honor thank you your opponents are very kind uh...

[00:32:10] Speaker 05:
I don't know, the – in terms of jurisdiction – What about Paragraph 24?

[00:32:15] Speaker 02:
What about the argument that you've been protected – I'm sorry, maybe this mic isn't working very well.

[00:32:20] Speaker 02:
What about the argument that your authority with respect to numbering, whatever it is, has been preserved?

[00:32:29] Speaker 02:
I'm sorry, repeat, sorry.

[00:32:31] Speaker 02:
I asked them what about the state's authority over numbering and was it injured in any way?

[00:32:39] Speaker 02:
Their response was whatever authority you had was protected by paragraph 24 of the order.

[00:32:45] Speaker 05:
I will confess that I have not spent enough time on the number portability side of the issue, but I know that my members weren't happy with the result.

[00:32:59] Speaker 05:
And I do want to point out in terms of standing, Narek's not like another petitioner.

[00:33:03] Speaker 05:
have a charge along with the FCC of enforcing the Telecommunications Act.

[00:33:07] Speaker 05:
That's a very unusual situation.

[00:33:09] Speaker 05:
We're not just a third party standing out there.

[00:33:11] Speaker 05:
We're supposed to be enforcing the interconnection obligations under 251 and 252.

[00:33:15] Speaker 05:
That's a charge that we're given, and that's directly impacted by this.

[00:33:20] Speaker 05:
I also would note that in terms of injury in fact,

[00:33:23] Speaker 05:
There are some carriers that provide service using interconnected VoIP.

[00:33:27] Speaker 05:
In fact, they're interconnected VoIP providers that have qualified basically as telecommunication service providers because they get universal service money.

[00:33:34] Speaker 05:
And by the same token, their providers, in fact, many of the providers that under the old regime, these carriers got numbers from,

[00:33:42] Speaker 05:
also provides service using this technology, Interconnected Void.

[00:33:48] Speaker 05:
So what this does is it allows, it's not that a carrier like Vonage can't come into many states, and the vast, I would suggest at least half and probably more, and say, hey, we want to be certificated as a carrier because they qualify under the state definition and the SEC hasn't ruled it out.

[00:34:04] Speaker 05:
They can.

[00:34:05] Speaker 05:
But this means that there's no longer any impetus for them to do so.

[00:34:10] Speaker 05:
That was left in place under the old regime.

[00:34:13] Speaker 05:
If this order is vacated, we go back.

[00:34:15] Speaker 05:
And the states are able to fully protect the consumers of their jurisdiction with respect to this carriage.

[00:34:22] Speaker 02:
OK, further questions?

[00:34:23] Speaker 02:
No, I'm out of time.

[00:34:25] Speaker 02:
It's all right.

[00:34:26] Speaker 02:
Thank you.

[00:34:27] Speaker 02:
All right, we appreciate the arguments of both sides.

[00:34:29] Speaker 02:
We'll take the matter under submission.

[00:34:30] Speaker 02:
We'll move on to the next case.