West Virginia RUS Project Triggers Fight over Non-Nomadic VoIP
A non-nomadic VoIP component may put an $8.5 million Rural Utilities Service-funded project in West Virginia under state regulation. Spruce Knob Seneca Rocks Telephone, a local service provider, asked the West Virginia Public Service Commission if its project needs a certificate of convenience and necessity. Though provisioning of broadband services isn’t state-regulated and doesn’t need a certificate, there remains the issue of non-nomadic VoIP, PSC staff said. While industry groups claimed that states are preempted from jurisdiction, commission staff cited orders from states like Maine, which indicated federal regulators have not yet taken a position on non-nomadic VoIP jurisdiction issues.
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Though the provisioning of broadband services isn’t state-regulated and didn’t need a certificate as long as those services aren’t to be used for the provision of interexchange and local exchange communications, there remains the issue of VoIP, PSC staff said in a memo (11-0293). The company plans to build local loop and transport facilities consisting of a broadband network. As a non-nomadic VoIP provider, the company would require a certificate of convenience and necessity, staff said. Michael Fletcher, deputy director of the commission’s Utilities Division, cited a decision by the Maine Public Utilities Commission in October 2010, along with a publication of the National Regulatory Research Institute in April 2011, both of which indicated the FCC hasn’t taken a position on the jurisdiction issue of non-nomadic VoIP. The commission hasn’t been preempted from jurisdiction over non-nomadic VoIP, he said. The staff concluded that the company should be required to obtain a certificate and to face conditions similar to other certificate approval cases.
While the PSC’s staff concluded non-nomadic VoIP providers are subject to the jurisdiction of the commission, the staff appears to have assumed by implication, without analysis, the applicability of the commission’s jurisdiction to a non-nomadic VoIP provider in a separate case concerning customer billing dispute (Jeannie Jarrel v. Cebridge Acquisition, LLC dba Suddenlink Communications 11-0543). Both staff recommendations, which conflict with PSC precedent, “erroneously” seek to resolve legal questions with “substantial, industry-wide significance” without broad participation or a factual record, WVCTA said. It urged the PSC to reject staff recommendations in both proceedings. The commission is expected to rule on the case in November, a spokeswoman said.
Additionally, WVCTA claimed federal law preempts states from imposing public utility regulation on VoIP services, whether the services are nomadic or not. The PSC doesn’t have authority over interconnected VoIP, said Glenn Richards, head of the VON Coalition. Interconnected VoIP is an information service exempt from state regulation, he said. Multiple federal courts have enjoined state commissions from regulating interconnected VoIP services on the grounds that they were information services, exempt from state utility regulation, he said.