Making the Digital Transition an “Upgrade for All” AgainAugust 26, 2019
You can watch Harold Feld and Lindsay Stern present oral arguments for the case discussed below tomorrow at 9 a.m. PDT here.
Across the nation, surprised Americans are waking to discover that their copper line — this landmark technology once used to connect America to the telephone system — doesn’t work.
These unfortunate Americans are no longer able to communicate with loved ones, operate their medical monitoring systems to stay healthy, or rely on text telephone (TTY) devices if they’re disabled. If they operate a small business, they can’t conduct credit card transactions or send faxes. If they pay for a traditional home security service, it no longer functions and they’re now vulnerable to burglary. And if they have children, their local school’s fire alarm system, which is probably operated by the same telecommunications provider, goes silent. Worse, there’s a very real possibility that they’re now unable to make 911 calls. Copper networks still form the backbone of America’s communication system despite the rise of fiber — and providers are either pulling the plug or letting them fall into disrepair.
With most Americans either switching to new digital services or simply dropping landline phone service altogether, folks may wonder why this matters. In many rural communities, however, copper landlines remain the only reliable option (when they work, at least). Over 20 million residential customers and over 30 million businesses still rely on traditional copper networks for both voice and broadband. But this vastly understates reliance on traditional copper networks. School fire alarms, home medical monitoring devices and security systems, credit card readers, and countless other services rely on the existing legacy copper network. As Public Knowledge has urged since 2012, that doesn’t mean we keep the legacy copper network operating forever. But it does mean that we need rules in place that make the upgrade of our communications network an upgrade for everyone — not an upgrade for some and a downgrade for the rest.
We got a good look at the chaos simply pulling out copper lines and replacing them with new technologies without any sort of plan would cause after Hurricane Sandy washed away the telephone lines on Fire Island, NY. As we documented, Verizon’s decision to replace its copper network with a wireless product called “Voice Link” caused massive problems for the residents and businesses on Fire Island. ATMs wouldn’t work. Rental agents couldn’t take faxes or reliably stay in touch with potential renters. People filed comments complaining that they could not use their medical monitoring devices. The local fire and police departments declared the system reliable and unsafe, as Verizon could not guarantee that customers could reliably reach 911 during peak network use hours. After overwhelming complaints at the state and federal level, Verizon did respond to the situation by rolling out a fiber-based network that could meet the previous standards for service. However the lesson was clear: Whether driven by private industry plans or in response to a natural disaster, the transition to 21st century networks required real oversight and standards.
With this experience in mind, and with growing concern that carriers were effectively abandoning their legacy copper lines in rural areas degrading local phone service to unusably low quality, newly appointed Federal Communications Commission Chairman Tom Wheeler began a proceeding in January 2014 to create rules to govern what became known as the “Technology Transition” of the legacy telephone network to an all IP-based network. For the next three years, over the vociferous objections of then-Commissioners Ajit Pai and Michael O’Reilly, the FCC conducted an extensive rulemaking process including workshops, pilot projects, and multiple notices of rulemaking. In 2015, and again in 2016, the FCC issued rules designed to both facilitate the upgrade of national communications network while avoiding disruption and confusion such as happened on Fire Island. Competitive broadband companies, AARP, rural communities, and consumer advocates all supported these common sense rules to protect Americans. Even carriers, while unhappy with many of the new regulations, agreed that it was a workable framework.
Everything seemed in place to begin work on upgrading our phone network for everyone. Then Ajit Pai became Chairman of the FCC on January 21, 2017.
Three Years of Careful Work Thrown Away in Six Months
Chairman Pai immediately set to work on reversing every significant telecom decision from which he had dissented as a commissioner. In April 2017, a mere eight months since the FCC completed the rulemaking and before carriers had even begun to use the new process, Chairman Pai began the process of repealing the Tech Transition safeguards. After a cursory comment period, Chairman Pai and the rest of the Republican commissioners, on a party-line vote, repealed many of the most important rules designed to ensure that affected communities received sufficient notice to prepare for the transition. They also repealed the “functional test,” which required that carriers must replace their legacy systems with services that were at least as good as those that existed before the carrier eliminated its traditional copper line service. This effectively downgraded rural America and the nation’s most vulnerable communities in one fell swoop.
Why? As usual, Chairman Pai claimed that this deregulation would accelerate broadband deployment. Also as usual, the 2017 Order confidently predicted that carriers had incentive to keep their networks in repair and to avoid abandoning or mistreating their customers, blithely ignoring the rather voluminous record that in the real world outside the Washington Beltway that carriers were, at that very moment, abandoning their customers and allowing their networks to break down in some areas to the point of unusability. As I like to say, you can’t tell me a thing will never happen when it has already happened.
This is why we sued the FCC, and why — along with other public interest groups — we’re going to argue for reinstating the rules before the 9th U.S. Circuit Court of Appeals on Tuesday, August 27. History has shown us that we cannot just trust carriers to keep their word when it comes to protecting consumers during the transition to digital, and no American deserves to be left behind in the digital era. This technology transition should be an upgrade for everyone. Tomorrow, we’ll see if the reviewing judges agree. You can watch at 9 a.m. PDT (noon EDT) here. If you agree, please consider donating to support PK’s work on this and other policy issues here.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[…] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”