LECs that partner with over-the-top VoIP providers shouldn't be allowed to collect local end-office switched access charges, Verizon Assistant General Counsel-Federal and State Legal Affairs Curtis Groves and Executive Director-Federal Regulatory Affairs Alan Buzacott told aides to Commissioners Jessica Rosenworcel and Ajit Pai Oct. 30, said an ex parte filing in FCC docket 10-90. An order being circulated at the FCC would say LECs and VoIP providers are entitled to the access charges (see 1410280032), but Verizon argued neither LECs nor VoIP providers perform "the necessary switching, or controls the switching decisions, that route a VoIP call to (or from) the VoIP customer over the broadband line that connects to the end user’s premises.” Companies that provide “over-the-top VoIP services -- e.g., Skype and Vonage -- have not invested in facilities to serve the end user customers who initiate and receive voice calls. Neither have their LEC partners,” Verizon said. ISPs, not the LECs or VoIP providers, “own, control, or maintain the physical routers, lines, and other equipment that performs analogous switching functions,” Verizon said. Also representing Verizon was Kellogg Huber’s Scott Angstreich, said the filing. Level 3 “uses the exact same facilities to provide local switching for calls terminated to TDM loops, over cable VoIP facilities and over-the-top,” Harris Wiltshire’s John Nakahata, representing Level 3, wrote in a letter to the agency sent and posted on Monday. To allow the access charges terminated to TDM and cable VoIP facilities, but not over-the-top VoIP, “moves in exactly the wrong direction” from the agency’s USF overhaul order, he said.

Comments are sought on petitions by Allscripts-Misy Healthcare Solutions and Francotyp-Postalia for a retroactive order on Junk Fax Act requirements to include an opt-out notice in fax ads, said the FCC Consumer and Governmental Affairs Bureau in a public notice on Tuesday. The bureau last week granted retroactive orders (see 1410300047) to previous petitioners but said similarly situated companies could also seek the waivers. Comments are due in docket 02-278 Nov. 18, replies Nov. 25.

The FCC’s past actions prevent the agency from “using its forbearance authority as a way to establish some sort of ‘Title II Lite’” on net neutrality, said a Phoenix Center for Advanced Legal & Economic Public Policy Studies press release Monday about a new study by the organization. The study, Section 10 Forbearance: Asking the Right Questions to Get the Right Answers, said “the agency's Phoenix [Arizona] Forbearance Order rejects the validity of forbearance in the presence of either monopoly or duopolistic competition. Given the Commission's repeated finding that Broadband Service Providers are ‘terminating monopolists’ as a justification for implementing Open Internet Rules, the Commission cannot reclassify broadband Internet access as a telecommunications service and then easily use its forbearance authority to create what is colloquially referred to as ‘Title II Lite,’" the release said. Also, Verizon responded to Public Knowledge Senior Vice President Harold Feld’s blog post that said forbearance is so easy it makes him “want to puke.” Verizon on its blog Monday pointed to Friday’s U.S. Court of Appeals for the D.C. Circuit decision turning down Verizon and AT&T’s petition challenging the commission’s denial of a forbearance petition (see [Ref.1410310055]) to make the point that the court and the FCC “have provided more evidence that the forbearance process is nauseating, but not because it is easy,” wrote Verizon Senior Vice President for Public Policy Craig Silliman. “It is a mark of true desperation to portray a decision affirming the FCC's vast discretion on forbearance as somehow limiting discretion,” Feld responded in an email. “What part of ‘the court affirmed the FCC’ do you not understand?”

Verizon and AT&T’s appeal of FCC denial of their petition to forbear requiring them to maintain a uniform system of accounts was denied Friday in a decision by the U.S. Court of Appeals for the D.C. Circuit. The companies “have long argued that, in light of the existing price cap regime, the Commission’s accounting rules are unnecessary,” the decision said. The commission said the accounting is still needed for a number of reasons, including its need to regulate pole attachment rates and interstate access rates, the decision said. The FCC’s interpretation is “permissible,” Senior Circuit Judge Laurence Silberman wrote. Judges David Tatel and Janice Brown concurred. Neither AT&T nor Verizon commented after the decision. Also, Verizon responded to Public Knowledge Senior Vice President Harold Feld’s blog post that forbearance is so easy it makes him “want to puke.” Verizon on its blog Monday pointed to last Friday’s U.S. Court of Appeals for the D.C. Circuit decision turning down Verizon and AT&T’s petition challenging the commission’s denial of a forbearance petition ([Ref. 1410310055]). The court and the FCC “have provided more evidence that the forbearance process is nauseating, but not because it is easy,” wrote Verizon Senior Vice President for Public Policy Craig Silliman.

The U.S. Court of Appeals for the 11th District reversed and remanded Thursday a 2013 ruling by the U.S. District Court in Miami against Palm Beach Golf Center in its lawsuit against Pompano Beach dentist John Sarris over an unsolicited fax from Sarris. Palm Beach Golf Center claimed the fax violated the Telephone Consumer Protection Act and that the transmission had clogged the golf center’s phone and fax connections. District Judge Kathleen Williams had ruled in favor of Sarris in a summary judgment. Palm Beach Golf Center claimed in its appeal that it could prove the fax had congested its wireline connections even though employees weren’t at the business when it transmitted. District Judge Robert Hinkle partially dissented in the appeals court’s ruling, saying one unsolicited fax wasn’t sufficient to merit Palm Beach Golf Center’s separate common-law claim. “Surely the days when messages are received this way are near an end,” he said.

Level 3 Communications completed its acquisition of tw telecom, said the acquirer in a news release Friday. The companies had argued through the regulatory approval process that the deal would make the combined company more competitive, a position with which the FCC agreed in granting approval last week (see 1410270047). Level 3 President Jeff Storey said "the combination of tw telecom's rich metro footprint with Level 3's global network, positions the company to provide local-to-global business solutions and deliver a world-class customer experience." The release said tw telecom stockholders are receiving $10 of cash and 0.7 shares of Level 3 common stock for each share of tw telecom common stock owned.

The E-rate eligible services list (ESL) for funding year 2015 released in an FCC Wireless Bureau order Tuesday incorporates the changes the FCC made in July’s modernization order (see 1407140044), including the elimination of some legacy services in both Category One and Two. Among the “outdated, legacy and other non-broadband” services no longer eligible for support are Web hosting, email and paging. Category One voice services are being phased out, and Category Two support for LAN/WLAN-focused components, basic maintenance of eligible broadband internal connections components, and managed internal broadband services is limited, the order said. In response to comments that past versions of the ESL were “too long, difficult to understand, and confusing to work with,” the new list will not include the ESL glossary, special eligibility conditions or the ineligible services that had been posted at the end of each category of service, the order said. In response to comments applicants may not be aware of the services that are no longer eligible for E-rate support, the list includes a chart of those services in an appendix, the order said. The ESL also clarifies that multi-protocol label switching (MPLS) is eligible for Category One E-rate support, and the language in the list about digital transmission and Internet access services emphasizes that the commission understands flexibility is needed to provide support for services that facilitate high-speed connectivity, said the order. The ESL also redefines caching, which is eligible for Category Two support.

Last week’s opening of the filing period for the FCC’s rural broadband experiments “marks a historic occasion,” Wireline Deputy Chief Carol Mattey said in a blog post Wednesday. The commission for the first time is using a competitive bidding process to award about $100 million in Connect America Fund support for broadband in rural America. Even before the Nov. 7 end of the application period, the bureau has “learned a lot from these experiments,” in doing outreach to potential bidders, creating the application form and “getting the online system up and running,” she wrote. In the future, “we’ll be learning about competitive interest to build networks to rural communities that will deliver services that far exceed the Commission’s current performance standards,” she wrote. “And I’m sure we will learn something unexpected that will help the Commission make decisions regarding the design of the Phase II auction that will occur after the offer of model-based support to price cap carriers.”

Level 3’ acquisition of tw telecom was approved by shareholders of both companies at separate meetings Tuesday, said a Level 3 news release. The deal was approved by 86.2 percent of tw telecom shareholders, and 99.7 percent of Level 3 shareholders, said Level 3 Tuesday. It expects to complete the acquisition Nov. 5, the release said. The FCC recently OK'd the deal (see 1410270047).

The FCC Form 477 filing interface, which closed Oct. 7 for technical improvements (see 1410080027), will remain closed until at least Nov. 10, said a public notice posted Tuesday in docket 11-10. After the site reopens, in about two weeks, the Wireline Bureau will release a PN announcing the new filing deadline for the form, which will be no less than 14 days after the notice, the bureau said. The form is used for local phone competition and broadband reporting.