obtain more information on GTLs international ICS rates on the - - PDF document

CAHILL GORDON & REINDEL LLP

EIGHTY PINE STREET NEW YORK, NY 10005-1702

HELENE R. BANKS ANIRUDH BANSAL DAVID L. BARASH LANDIS C. BEST BRADLEY J. BONDI BROCKTON B. BOSSON JAMES J. CLARK CHRISTOPHER W. CLEMENT LISA COLLIER AYANO K. CREED SEAN M. DAVIS STUART G. DOWNING ADAM M. DWORKIN ANASTASIA EFIMOVA JENNIFER B. EZRING HELENA S. FRANCESCHI JOAN MURTAGH FRANKEL JONATHAN J. FRANKEL ARIEL GOLDMAN JASON M. HALL WILLIAM M. HARTNETT NOLA B. HELLER CRAIG M. HOROWITZ DOUGLAS S. HOROWITZ TIMOTHY B. HOWELL DAVID G. JANUSZEWSKI ELAI KATZ BRIAN S. KELLEHER RICHARD KELLY CHÉRIE R. KISER* JOEL KURTZBERG TED B. LACEY MARC R. LASHBROOK ALIZA R. LEVINE TELEPHONE: (212) 701-3000 WWW.CAHILL.COM ___________

1990 K STREET, N.W.

WASHINGTON, DC 20006-1181

(202) 862-8900

CAHILL GORDON & REINDEL (UK) LLP

24 MONUMENT STREET

LONDON EC3R 8AJ

+44 (0) 20 7920 9800

___________ WRITER’S DIRECT NUMBER

202-862-8950 ckiser@cahill.com

JOEL H. LEVITIN GEOFFREY E. LIEBMANN BRIAN T. MARKLEY MEGHAN N. McDERMOTT WILLIAM J. MILLER NOAH B. NEWITZ DAVID R. OWEN JOHN PAPACHRISTOS LUIS R. PENALVER KIMBERLY PETILLO-DÉCOSSARD SHEILA C. RAMESH MICHAEL W. REDDY OLEG REZZY THORN ROSENTHAL TAMMY L. ROY JONATHAN A. SCHAFFZIN MICHAEL A. SHERMAN DARREN SILVER JOSIAH M. SLOTNICK RICHARD A. STIEGLITZ JR. ROSS E. STURMAN SUSANNA M. SUH ANTHONY K. TAMA JONATHAN D. THIER SEAN P. TONOLLI JOHN A. TRIPODORO GLENN J. WALDRIP, JR. HERBERT S. WASHER MICHAEL B. WEISS DAVID WISHENGRAD COREY WRIGHT JOSHUA M. ZELIG DANIEL J. ZUBKOFF * ADMITTED IN DC ONLY

1 July 30, 2020 Via ECFS Marlene H. Dortch Secretary Federal Communications Commission 445 12th Street, SW Washington, DC 20554 Re: WC Docket No. 12-375 - Written Ex Parte Presentation Dear Secretary Dortch: Global Tel*Link Corporation (“GTL”),1 by its attorneys, respectfully submits this written ex parte presentation concerning the draft Report and Order on Remand and Fourth Further Notice

• f Proposed Rulemaking (“Draft”) on inmate calling services (“ICS”) to be considered by the

Federal Communications Commission (“FCC”) at its monthly agenda meeting on August 6, 2020.2 As explained below, GTL seeks to correct the record as to its international rates, and requests further clarification regarding the apparent new standard required for determining the jurisdictional nature of a telecommunications service. First, GTL seeks to correct the record regarding the posting of its rates for international

• ICS. In note 276 of the Draft, the FCC states it could not locate any international ICS rates on

GTL’s website. Consistent with the requirements of FCC Rule 42.10,3 GTL’s interstate and international ICS rates, terms, and conditions are (and have been) posted on GTL’s website at: https://www.gtl.net/legal-and-privacy/federal-tariffs-and-price-lists/. Further, consumers can

1

This filing is being submitted by GTL on behalf of itself and its wholly owned subsidiaries that also provide inmate calling services: DSI-ITI, Inc., Public Communications Services, Inc., and Value-Added Communications, Inc.

2

FCC-CIRC2008-05 (rel. July 16, 2020).

3

47 C.F.R. § 42.10.

CAHILL GORDON & REINDEL LLP 2

• btain more information on GTL’s international ICS rates on the ConnectNetwork

(www.connectnetwork.com) and GettingOut (www.gettingout.com) websites after creating an account or logging into their existing account and selecting the relevant correctional facility. Users

• f GTL’s ICS also can obtain rate information prior to the completion of a call from GTL’s

interactive voice response (“IVR”) system or from GTL’s live customer service representatives. Accordingly, GTL respectfully requests that the FCC correct and update note 276 of the Draft. Second, GTL requests clarification concerning the FCC’s statement that a provider must follow the rules governing interstate ICS unless it can “definitively establish the jurisdiction” of the call as intrastate, as mentioned in paragraphs 50-51 and note 138 of the Draft. Similar language also is applied to ICS calls in the Fourth Further Notice of Proposed Rulemaking.4 This appears to be a new standard for determining the FCC’s jurisdiction over a call. The FCC discusses the comments filed by GTL and other ICS providers explaining that the jurisdiction of a call can be determined based on the origination and termination points of the call.5 The FCC “clarifies” that “the jurisdictional nature of a call depends on the physical location

• f the endpoints of the call, and not on whether the area code or NXX prefix of the telephone

number are associated with a particular state.”6 The FCC explains further that, to the extent an ICS provider cannot “definitively establish the jurisdiction of a call, it may and should treat the call as jurisdictionally mixed.”7 The Draft concludes that such jurisdictionally mixed services will be regulated as interstate.8 The traditional “end-to-end analysis” has long been used by the FCC, the states, and the industry to determine the jurisdictional nature of a call.9 There also have been numerous instances in which the FCC has found it difficult to apply an end-to-end approach for jurisdictional purposes, and instead has adopted “proxy or allocation mechanisms to approximate an end-to-end result.”10

4

The FCC states the new proposed interstate rate caps will apply to all calls an ICS provider “identifies as interstate and to calls that the provider cannot definitively identify as intrastate.” See Draft ¶ 63.

5

Draft ¶ 50.

6

Draft ¶ 51 (emphasis added).

7

Draft ¶ 51.

8

Draft ¶¶ 30-31.

9

Petition for Emergency Relief and Declaratory Ruling Filed by the BellSouth Corporation, 7 FCC Rcd 1619 (1992); see also North Carolina Utils. Comm’n v. FCC, 537 F.2d 787 (4th Cir. 1976), cert. denied, 429 U.S. 1027 (1976); North Carolina Utils. Comm’n v. FCC, 552 F.2d 1036 (4th Cir. 1977) cert. denied, 434 U.S. 874 (1977); New York Telephone Co. v. FCC, 631 F.2d 1059 (2d Cir. 1980); Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986).

10

See, e.g., Vonage Holdings Corporation Petition for Declaratory Ruling Concerning an Order of the Minnesota Public Utilities Commission, 19 FCC Rcd 22404, n.98 (2004); see also High-Cost Universal Service Support, et al., 24 FCC Rcd 6475, ¶ 327 (2008) (“To bill for termination of traffic, a terminating service provider must be able to identify the appropriate upstream service provider, and the location of the caller (or a proxy for the caller’s location) in order to determine jurisdiction, which is necessary to determine the appropriate charge under existing intercarrier compensation rules.”).

CAHILL GORDON & REINDEL LLP 3 NPA-NXX is one such proxy used by the industry,11 and the FCC has supported the use of NPA- NXX in this manner in the past.12 ICS providers and many other competitors use third-party, wireline carriers who rely on NPA/NXX to rate and terminate calls to the public switched telephone network (“PSTN”).13 States also look at NPA-NXX as a reasonable surrogate for jurisdiction.14 Although the FCC is correct that there are numerous wireless and Voice over

11

See, e.g., Geographic Routing of Toll Free Services, North American Numbering Council White Paper (July 2015) (“Historically, the caller’s Telephone Number (‘TN’) has been used to approximate the caller’s geographic location, using the NPA/NXX of the TN assigned to the caller to determine the rate center and local service provider central office serving the customer, as provided in the Local Exchange Routing Guide (‘LERG’) industry database. . . . Thus as the originating service provider makes routing decisions for toll free calls based on the callers’ location, the provider generally uses the NPA/NXX of the calling number to determine the caller’s location.”).

12

See, e.g., Petition of WorldCom, Inc. Pursuant to Section 252(e)(5) of the Communications Act for Preemption of the Jurisdiction of the Virginia State Corporation Commission Regarding Interconnection Disputes with Verizon Virginia Inc., and for Expedited Arbitration, et al., 17 FCC Rcd 27039, ¶ 301 (2002) (“We agree with the petitioners that Verizon has offered no viable alternative to the current system, under which carriers rate calls by comparing the originating and terminating NPA-NXX codes. We therefore accept the petitioners’ proposed language and reject Verizon’s language that would rate calls according to their geographical end points. Verizon concedes that NPA-NXX rating is the established compensation mechanism not only for itself, but industry-wide. The parties all agree that rating calls by their geographical starting and ending points raises billing and technical issues that have no concrete, workable solutions at this time.”); Developing a Unified Intercarrier Compensation Regime, 20 FCC Rcd 4685, ¶ 141 (2005) (“It is standard industry practice for telecommunications carriers to compare the NPA/NXX codes

• f the calling and called party to determine the proper rating of a call. As a general matter, a call is rated as local if

the called number is assigned to a rate center within the local calling area of the originating rate center. If the called number is assigned to a rate center outside the local calling area of the originating rate center, it is rated as a toll call. These local calling areas are established or approved by state commissions.”); Misuse of Internet Protocol (IP) Captioned Telephone Service, et al., 33 FCC Rcd 5800, ¶ 108 (2018) (recognizing that IP CTS providers use

• riginating and terminating telephone numbers for jurisdictional allocations of IP CTS minutes, and asking for

comment on other types of proxy allocations that could be used).

13

See, e.g., Connect America Fund, et al., 26 FCC Rcd 4554, n.1099 (2011) (“wireline carriers often determine whether a phone call is local or toll by comparing the rating points associated with the originating and terminating NXX codes”).

14

See, e.g., Ga. PSC Docket No. 34219, Complaint of TDS Telecom, Order on Motion for Rehearing and Clarification (Ga. P.S.C. Sept. 5, 2012) (“Staff recommended that use of the EMI records for billing is reasonable. It is consistent with industry practice to rely upon EMI records for this purpose. The record also indicates that while telephone numbers are not infallible, they provide the best proxy for customer location in the absence of specific evidence on the customer’s location. . . . The Commission finds that the call records relied upon by TDS Telecom and AT&T constitute a reasonable proxy for the technology used and the physical origination point of the call. Although these records are not 100 percent accurate, no party offered persuasive evidence of a more reliable and feasible alternative.”); Pa. PUC Docket No. C-2009-2093336, Palmerton Telephone Company v. Global NAPs South, Inc., et al., Opinion and Order (Pa. P.U.C. July 29, 2010) (“Palmerton adequately relied on the NPA/NXX origination and termination of the intrastate interexchange call traffic at issue for the jurisdictional classification and billing of such traffic.”); SC PSC Docket No. 2005-67-C, MCIMetro Access Transmission Services, LLC (S.C.P.S.C. October 7, 2005) (“We find that there is a need for jurisdictional information in addition to the [calling party number] in order to enable the Parties to properly identify the jurisdiction of the call. . . We, therefore, hold that the Parties should be required to provide both [calling party number] and [jurisdictional indicator parameter] where it is technologically and economically feasible, as defined by not being a barrier to entry.”); Mo. PSC Docket No. IO-2005-0468, Petition

• f Alma Telephone Company for Arbitration of Unresolved Issues Pertaining to a Section 251(b)(5) Agreement with

T-Mobile USA, Inc., Arbitration Report (Oct. 6, 2005) (“The Commission accepted the methodology of an NPA-NXX study to ascertain traffic jurisdiction.”); NY PSC Case No. 03-C-1508, Petition of Multiple Communications Companies for Suspension of Wireline-to-Wireline Number Portability Obligations, Order Denying Petition (N.Y.P.S.C. March 16, 2004) (“Petitioners, like all LECs, rate calls as local or toll by comparing the originating and

CAHILL GORDON & REINDEL LLP 4 Internet Protocol (“VoIP”) service providers in the market that have increased the portability of telephone numbers across state lines,15 the FCC allows wireless and VoIP service providers to use traffic studies or safe harbors as proxies for jurisdiction for reporting purposes.16 The new requirement to “definitively establish” jurisdiction on an end-to-end basis appears to be eliminating a long accepted practice by the FCC that is relied upon today by many in the industry,17 as well as indirectly broadening the FCC’s jurisdiction - potentially to cover intrastate calls that cannot be definitively established as such.18 Any change in the way the jurisdictional nature of calls are determined could result in numerous consumer calls previously rated and billed as intrastate now being rated and billed as interstate, which could cause significant consumer

• confusion. In addition, the jurisdictional re-classification of calls could have considerable

ramifications on federal and state universal service fund (“USF”) reporting, and other state and federal reporting that relies on jurisdictional determinations. Presumably, it also may have an effect on the application of connecting carrier termination charges, at least as long as those charges exist.19 GTL respectfully requests the FCC provide further clarification regarding its expectations for all telecommunications service providers to apply the new requirement to “definitively

terminating NPA-NXX codes. Thus, if the NPA-NXX codes of the calling and called parties are associated with the same rate center or local calling area, the company serving the calling party will rate the call as local. Conversely, if the NPA-NXX codes of the calling and called parties are associated with rate centers in different local calling areas, the LEC serving the calling party will rate the call as a toll call.”); Co. PUC Docket No. 03B-287T, Qwest Corporation, Decision Granting, In Part, Application for Rehearing, Reargument, or Reconsideration (Co. P.U.C. Dec. 4, 2003) (finding “calls are rated and routed based on NPA-NXX”); NCUC Docket No. P-474, Sub 10, MCIMetro Access Transmission Services, LLC (N.C.U.C. April 3, 2001) (noting “that NPA/NXX codes were developed to rate calls”).

15

Draft at n.138. The FCC recognizes that wireless carriers know the location of their customers at the time of the call, but also notes not every ICS provider may be able to establish the location of a called party. Id. ¶ 51. In the past, wireless carriers have shared such information with ICS providers, but the FCC’s recent Notices of Apparent Liability (“NALs”) on location sharing call that practice into question and would appear to require ICS providers to

• btain consent from each called party in order to access the called party’s location simply to rate (price) each inmate-

initiated call to a wireless subscriber. See, e.g., T-Mobile USA, Inc., 35 FCC Rcd 1785 (2020).

16

See, e.g., Universal Service Contribution Methodology et al., 21 FCC Rcd 7518 (2006); Federal-State Joint Board on Universal Service et al., 17 FCC Rcd 24952 (2002); see also 2020 Instructions to the Telecommunications Reporting Worksheet, FCC Form 499-A, pp. 40-42 (January 2020).

17

See, e.g., Draft ¶ 50 (citing to GTL and Securus); id. at n.138 (citing to Inmate Calling Solutions and NCIC).

18

The Draft “departs from established precedent” and appears to be adopted without “adequate notice and

• pportunity for comment” by affected parties. Exxon Mobil Corp. v. FERC, 315 F.3d 306, 309 (D.C. Cir. 2003); Shell

Oil Co. v. EPA, 950 F.2d 741, 747 (D.C. Cir. 1991) (per curiam).

19

See, e.g., Connect America Fund, et al., 26 FCC Rcd 4554, n.26 (2011) (“Today, there are three major forms

• f intercarrier compensation: interstate access charges, intrastate access charges, and reciprocal compensation. Access

charges apply to long distance calls. The Commission regulates rates for interstate calls and states regulate rates for intrastate calls. Reciprocal compensation today primarily governs ‘local’ calls, and rates are either negotiated by carriers or set by states using the Commission’s pricing methodology.”); Connect America Fund, et al., 26 FCC Rcd 17663 (2011) (starting the transition of most interstate and intrastate access charges into the reciprocal compensation framework and moving to bill-and-keep as the default methodology for all intercarrier compensation traffic); see also Updating the Intercarrier Compensation Regime to Eliminate Access Arbitrage, 34 FCC Rcd 9035 (2019) (noting there are some access charge elements that have not yet transitioned).

CAHILL GORDON & REINDEL LLP 5 establish” the jurisdiction of a call without reliance on the NPA/NXX proxy or other allocation mechanisms.20 If you have any questions concerning this matter, please contact the undersigned. Respectfully submitted,

/s/ Chérie R. Kise iser

Chérie R. Kiser Angela F. Collins Counsel for Global Tel*Link Corporation

20

The law and long-standing parameters for jurisdictional determinations apply to all “communications” or “calls,” and are not limited to a certain subset of communications or calls. See supra n.9. Courts consistently have emphasized the importance of applying the same regulatory regime to similarly situated carriers. See, e.g., Morris Commc’ns v. FCC, 566 F.3d 184, 188 (D.C. Cir. 2009) (“the Commission abuses its discretion if it fails to ‘provide adequate explanation before it treats similarly situated parties differently’”) (quoting Petroleum Commc’ns, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994)); see also Blanca Telephone Co. v. FCC, 743 F.3d 860, 864 (D.C. Cir. 2014) (“[the Commission] had an obligation not to treat similarly situated carriers differently without offering an adequate explanation”).