1717 Pennsylvania Avenue, N.W. 12 th Floor Washington, D.C October 30, 2014

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1 1717 Pennsylvania Avenue, N.W. 12 th Floor Washington, D.C Tel Fax James C. Falvey Phone: Notice of Ex Parte October 30, 2014 Ms. Marlene H. Dortch Secretary Federal Communications Commission th Street SW Washington, DC Dear Ms. Dortch: Re: Notice of Ex Parte Communication (CC Docket No ; CC Docket No ; WC Docket No ; WC Docket No ; WC Docket No ; WC Docket No ; GN Docket No ) On October 30, 2014, Kyle Bertrand, VP, Network Planning and Regulatory, Broadvox- CLEC, LLC ( Broadvox ), and the undersigned met with Rebekah Goodheart, Wireline Legal Advisor to Commissioner Clyburn. Broadvox provided the attached presentation and discussed the VoIP Symmetry Rule. Broadvox emphasized the VoIP Symmetry Rule s importance to Broadvox as an over-the-top VoIP provider and the need to ensure that any clarifications the Commission makes to the order are retroactive to the effective date of the Connect America Fund Order. Broadvox also discussed the fact that Verizon s effort to exclude originating 8YY access from the VoIP Symmetry Rule is not justified. Excluding such traffic would create the very asymmetry that the Commission intended to avoid, by permitting traditional local exchange carriers to collect full originating access on such 8YY calls but not VoIP providers or their competitive carrier partners such as Broadvox. Moreover, interexchange carriers (IXCs) that deliver calls to their 8YY customers will still collect the same rates from those customers, but would pay a discounted originating access rate on every such call that happens to originate from a VoIP provider customer. The Commission should ensure that IXCs do not receive such a windfall and that VoIP providers have an even chance to compete by guaranteeing equivalent compensation for all types of traffic.

2 Ms. Marlene H. Dortch October 30, 2014 Page 2 of 2 As required by Section (b), this ex parte notification is being filed electronically for inclusion in the public record of the above-referenced proceedings. If you have any questions or require additional information, please do not hesitate to contact me at Sincerely, /s/ James C. Falvey Counsel for Broadvox-CLEC, LLC Enclosure cc: Rebekah Goodheart Kyle Bertrand

3 Commission Order to Clarify and Reaffirm the VoIP Symmetry Rule: 47 C.F.R (b) October 30, 2014 Kyle Bertrand Vice President Network Planning & Regulatory Broadvox CLEC, LLC James C. Falvey, Esq. Eckert Seamans Cherin & Mellott 1717 Pennsylvania Ave., NW 12 th Floor Washington, D.C

4 The Commission s Ruling Must be Retroactive to the Effective Date of the VoIP Symmetry Rule The VoIP Symmetry Rule was the only issue that AT&T appealed in the Connect America Fund Appeal AT&T lost on appeal at the 10 th Circuit AT&T and Verizon are trying to re litigate this issue before the Commission but the Commission has already made it clear that end office charges are due for Over the Top (OTT) traffic Because AT&T and Verizon are filing disputes based on their unique and inaccurate interpretation of the VoIP Symmetry Rule, the Commission needs to clarify that rule as requested by Level 3 (see 2/28/14 ex parte letter) and such clarification must be retroactive to the effective date of the Rule 2

5 Broadvox CLEC, LLC v. AT&T Corp. Case No. 8:13 CV (D. Md.) Broadvox filed a collections action against AT&T Corp. in April 2013 in federal court to collect its unpaid access charges Broadvox is seeking to collect its past due charges in federal court and not through FCC Enforcement or any other mechanism At the Court s request, the parties recently briefed whether a primary jurisdiction referral would be appropriate Without near term reaffirmation and clarification of the VoIP Symmetry Rule, AT&T s illegal withholding of Broadvox s access charges dating back to January 2012 could extend for years into the future By issuing a clarification order, the Commission would eliminate the ability of AT&T and Verizon to continue to misread the VoIP Symmetry Rule and withhold millions of dollars from their much smaller competitors 3

6 Prospective Only Application Would be Devastating for Over the Top Providers like Broadvox Broadvox would be devastated by a ruling that the requested reaffirmation and clarification has prospective effect only Broadvox has over $7M in retrospective billings at stake AT&T would be rewarded for its three year self help campaign Self help has been discouraged by the Commission (CAF Order, 700) If AT&T had an issue with the VoIP Symmetry Rule, it should have come to the Commission for clarification rather than exercising self help 4

7 Retroactivity is the Norm in Agency Adjudications Retroactivity is the norm in agency adjudications. AT&T v. FCC, 454 F.3d 329, 332 (D.C. Cir. 2006) The Commission s Order will not change settled or established law (Id.) The disputes AT&T had with six or more carriers meant that AT&T could not reasonably rely on its novel interpretation of the VoIP Symmetry Rule. Verizon Tel. Cos. v. FCC, 269 F.3d 1098, 1111 (D.C. Circ. 2001)( Because the object of the [petitioners ] reliance was neither settled... nor wellestablished, we are skeptical that retroactive liability against the [petitioners] would actually impose a manifest injustice. ) AT&T and Verizon knew that the Commission might find that their interpretation of the Rule is completely contrary to the Commission s intention and would then apply the presumption of retroactivity. Qwest v. FCC, 509 F.3d 531, 540 (D.C. Cir. 2007) ( The mere possibility that a party may have relied on its own (rather convenient) assumption that unclear law would ultimately be resolved in its favor is insufficient to defeat the presumption of retroactivity when that law is finally clarified. ) 5

8 Verizon s Conduct Demonstrates That It Initially Interpreted the VoIP Symmetry Rule Like Broadvox AT&T and Verizon cannot claim that the VoIP Symmetry Rule read clearly in their favor because for years Verizon interpreted it like Broadvox Verizon paid Broadvox s end office charges for services rendered for two whole years from January 2012 through January 2014 Verizon also paid Bandwidth s charges during the same two year period (Bandwidth 10/22 ex parte letter, at 6) It appears that Verizon only began disputing end office switching after it became aware of AT&T s self help campaign AT&T and Verizon cannot claim that the VoIP Symmetry Rule clearly required denial of end office charges to OTT providers If there was any ambiguity in the VoIP Symmetry Rule s application to end office switching charges, clarification of that ambiguity must be retroactive to the effective date of the Rule 6