It’s time to chalk up another victim to the addictive qualities of access charges.

For more than a decade, cable companies have fought vigorously to avoid entanglement of their broadband IP networks with common carrier regulation.  Now, for less than a penny a minute, Comcast seems ready to say “the heck with all that.”

In recent weeks, Comcast has proposed certain changes to the FCC’s rules that govern competitive local exchange carrier (CLEC) access charges.  In particular, Comcast has asked the FCC to eliminate a rule that prohibits CLECs from charging for functions that they don’t actually perform.  No, that’s not a typo.  Comcast wants the FCC to allow CLECs (and this includes Comcast’s own CLEC affiliates) to charge for access services whether they provide them or not. This request is surpassingly ironic in that VoIP providers have spent much of the last 10 years insisting that they should never have to pay access charges.  Today, we filed a letter with the Commission explaining why Comcast’s proposal is not only unlawful but also unwise.

In a nutshell, Comcast wants the FCC to make a rule saying that as long as a CLEC provides the telephone number listed in the number portability database, that CLEC should be able to charge the same amount as an incumbent local exchange carrier (ILEC) that terminates a call to an end user over its plain old telephone service (POTS) network. The implication of this proposal is that as long as a CLEC provides the telephone number, it’s safe to conclude that the CLEC provides a service equivalent to all of the other functions – and the associated costs – included in access charges. Nothing could be further from the truth.  And, here’s why.

There are many services where a CLEC may provide a telephone number but not perform any functions associated with the actual termination of a call to a local telephone customer. Here are just two examples:

1)      One such service is eFax. In this case the CLEC gives a telephone number to the eFax provider, who in turn gives it to an end user. When a fax is sent, this rule change would allow that CLEC to bill full access charges even though the call actually goes to a server and the end user ultimately retrieves the fax over the Internet.

2)      Another example is a single-number service like Google Voice. Under the rule proposed by Comcast, when a call is placed to the Google Voice number but ultimately completed to the end user’s home or wireless phone, there could be two entirely distinct sets of terminating access charges applied to the same call.

Leaving aside these absurd results, Comcast’s support for this rule change casts a shadow over their advocacy against common carrier regulation of their broadband IP network. In effect, Comcast is arguing that it should be able to file a tariff that includes functionalities ultimately performed by their broadband IP network, which is not part of Comcast’s CLEC entity.  Again, they want to charge for services they do not actually perform.

Now, here’s some free regulatory/legal advice to my friends at Comcast.  This slope is so slippery that Comcast may never again be able to stand up a reasonable argument against regulation of their broadband IP network. If Comcast concedes that the FCC can subject packet-switching and IP signaling to tariff regulation, then how can Comcast consistently assert that the FCC lacks authority over Internet peering disputes, like theirs with Level 3?  Perhaps unsurprisingly, Level 3 agrees with Comcast on this issue and has already filed a tariff that incorporates this concept so they can start collecting for services they do not perform.

Under this proposal, not only would Comcast’s broadband IP network be entangled with common carrier regulation, but – and, yes, I recognize that I’ve buried the lede, here – access charges would actually be applied on the Internet (#rumorwon’tgoaway). When a CLEC provides a number to an Internet-based VoIP service, like Skype, that CLEC would be entitled to bill for the functionalities performed by every Internet service provider (ISP) needed to deliver the associated packets over the Internet.  It’s not clear, however, if those ISPs could sue the CLEC to recover their fair share of this revenue.

I hope the FCC rejects this absurd call to reverse a longstanding rule based on the common-sense notion that carriers should not be able to charge for services unless they actually perform them. Comcast should hope for rejection as well as it stands to be the first victim of such a foolish reversal of policy.

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