Post Tech Transitions

As AT&T Retires Copper, the Biden FCC Must Bring Back Ground Rules

May 26, 2021 , , , , , , ,
phone lines in sunset

Back in the day, copper was king. Copper strands were not only the infrastructure that our telephone service was carried over, but also the original internet connectivity point. Over time, telephone companies upgraded the copper technology to deliver better internet speeds in an effort to keep up with the new offerings coming from cable companies, leading to the introduction of DSL, an internet connection that transmits data over ordinary telephone lines and the high-speed internet connection of its day.

Since then, technology has continued to evolve, but copper is still the only choice consumers have in many rural and low-income areas. And it doesn’t just allow people to connect to the phone and internet. It also powers fax machines, alarm systems, and health monitors — devices people rely on daily for their businesses and their safety. Plus, many smaller providers lease the copper infrastructure from larger ones to help serve their customers.

That’s why, in 2015, the Federal Communications Commission adopted rules governing the retirement of copper lines to help manage the transition (deemed the “tech transitions”) to ensure consumers were not left behind in this evolution. However, in 2017, under a new FCC chairman, the agency substantially weakened the rules it had made just two years earlier. Now, there is little the FCC can do to protect consumers when companies decide to retire their copper infrastructure. When this happens it means that people who rely on copper lines to monitor their health, protect their schools and homes, and participate in society are not protected from a downgrade in quality of service in these essential communications. Which makes the fact that AT&T is trying to retire its DSL service without providing a fixed replacement especially worrisome. Although some of AT&T’s customers being cut off without a fixed alternative may eventually get fiber access, there are still those who will be left behind, forced to subsist on a wireless plan — an inadequate replacement for copper lines.

There are two ways companies can retire copper. First, they can retire the technology traditionally by removing or disabling the copper so that customers can no longer use the service enabled by copper. Second, they can “de facto” retire the technology, meaning they simply do not invest in maintenance or upgrades to the network, effectively deteriorating the infrastructure so much that it doesn’t provide consistent or reliable enough connectivity for the services that run on it. In either case, providers want to reduce the cost of maintaining a copper network so they’re motivated to retire it or just let it deteriorate. Users of copper lines for service are most likely to be elderly or low income consumers, who have high needs for reliable communications, but may not have wanted or been able to afford to make the switch on their own. Both of these versions of copper retirement can leave consumers without essential, basic communications, and so the rules around them are important to make sure these most vulnerable populations are not left behind.

Federal law states that “no carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until” the FCC deems that “neither the present nor future public convenience and necessity will be adversely affected.” In order to regulate this process, in 2015, the FCC under then-Chairman Tom Wheeler, enacted three primary rules to protect consumers from copper retirements.

First, to prevent companies from skirting around the rules and simply letting their copper deteriorate instead of formally retiring it, the FCC acknowledged the concept of “de facto retirement” and subjected de facto retirements to the same rules as regular retirements.

Second, it required carriers planning copper retirements that would reduce or impair the services provided (but not those improving the services provided) to obtain approval from the FCC. This part is a little bit complex, so bear with me. To get approval, the carrier would have to file a “Section 214 discontinuance,” after which the FCC would decide whether the discontinuance was in the public interest. The carriers themselves had the burden of determining if the transition would reduce or impair service. If they deemed it didn’t, the carriers only needed to give notice of the retirement to consumers and other businesses (more on that later). If the carrier deemed that it did reduce or impair services, they had to file the Section 214 discontinuance and assert why it wouldn’t be bad for consumers. Then the FCC could decide if the analysis was correct — and usually they did. It’s pretty much only when an outside group — like, for example, Public Knowledge — asserted that the retirement would negatively impact consumers that the FCC would do a more thorough analysis. To analyze the impact on consumers, both the carrier and the FCC used what was called a “functional test,” which analyzed, essentially, whether the carrier would offer a sufficient replacement for all of the features of their services — not just the ones they said they offered in a tariff. The tariff is a document that carriers use to say what services they offer, but, usually, it doesn’t include everything the service is used for. For example, it wouldn’t mention that DSL is essential for powering some health monitors. So, this analysis required the carrier and the FCC to look at everything that would be impacted, beyond just web browsing and making phone calls.

Finally, the rules required companies retiring copper to give consumers, state authorities, and other companies using their networks 180 days notice of the retirement. The goal of this was to ensure that those consumers in the affected area were prepared for the change in their service.

When FCC Chairman Ajit Pai came into office, he was quick to change these rules, weakening them to the point that they were effectively useless:

  • First, he dropped the concept of “de facto retirement,” hence allowing providers to let networks deteriorate to the point that they are no longer reliable without having to do anything or face any consequences.
  • Second, he got rid of the functional test, meaning that in analyzing whether retirements will impact consumers, the carriers and FCC only need to look at the main services being offered and can ignore other things, such as whether the retirement would prevent business customers from using credit card machines. According to the Pai FCC, “carriers cannot know how all of the myriad ways in which their services are used by customers, and it would be impracticable to require them to account for all these many uses in deciding whether a planned [retirement] triggers a requirement to file an application with the Commission.”
  • Finally, Chairman Pai shortened the amount of notice companies retiring copper had to give to interested stakeholders and reduced the amount of stakeholders deemed worthy of notice. For example, companies retiring copper are no longer required to give notice directly to the consumers of providers that lease the company’s copper — just the leasing company itself. This made it more difficult for those relying on copper lines at the time of retirement to prepare to lose their service and find a replacement.

The overall impact of these changes is that now carriers are free to let their DSL service rot, and replace DSL service with anything that is “good enough.” It doesn’t have to be just as good, or better. We’ve already seen what happens when carriers try to replace a service with something that they think is “good enough.” On Fire Island in New York, Verizon briefly attempted to retire its copper lines and replace them with Voice Link — a fixed wireless voice only service. This prevented alarm systems, fax machines, credit card machines, and other devices from working. The experiment was such a failure, and received so many consumer complaints, that Verizon eventually had to install fiber. Upgrading old copper networks can also be a form of digital redlining, when a provider chooses not to upgrade its network in certain neighborhoods, especially low income neighborhoods, arguing that what they have is “good enough”.

Moving forward, we need the FCC to revert to its old rules, and go a step further by clearly stating that companies should not be able to retire older technology without ensuring that an adequate replacement is available for everyone in the affected area before it does.

 

Image credit: Joey Z1 on Flickr


About Jenna Leventoff

Jenna is a Senior Policy Counsel, where she focuses on promoting Public Knowledge’s mission through government affairs. Prior to joining Public Knowledge, Jenna served as a Senior Policy Analyst for the Workforce Data Quality Campaign (WDQC) at the National Skills Coalition, where she led WDQC’s state policy advocacy and technical assistance efforts on state data system development and use. She also served as an Associate at Upturn, where she analyzed the civil rights implications of new technologies, and as Manager and Legal Counsel of the International Intellectual Property Institute, where she led the organization’s efforts to utilize intellectual property for international economic development. Jenna has also held internships with the American Civil Liberties Union and Senator Sherrod Brown (D-OH). Jenna received her J.D, cum laude, and B.A from Case Western Reserve University. In her free time, Jenna enjoys yoga, international travel, and experimenting with new recipes.