BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO PROCEEDING NO. 15R-0318T IN THE MATTER OF THE PROPOSED RULES REGARDING BASIC EMERGENCY SERVICE, 4 CODE OF COLORADO REGULATIONS 723-2 CTIA PETITION FOR DECLARATORY RULING CTIA The Wireless Association ( CTIA ), 1 pursuant to Rule 723-1-1304(i) of the Colorado Public Utilities Commission s ( Commission ) Rules of Practice and Procedure ( Rules ), by and through its undersigned counsel, hereby brings a Petition for Declaratory Colorado PUC E-Filings System Ruling ( Petition ). As permitted by Rule 1304(i)(I), this Petition seeks a declaratory ruling, in this pending rulemaking proceeding involving basic emergency services, that the Commission lacks jurisdiction to adopt the current proposed rules insofar as they impose obligations on Commercial Mobile Radio Services ( CMRS ) or CMRS providers, 2 including members of CTIA. In support of this Petition, CTIA states as follows: I. BACKGROUND 1. The Commission issued a Notice of Proposed Rulemaking ( NOPR ) on May 13, 2015 by Decision No. C15-0453, regarding rules regulating basic emergency service, currently 1 CTIA-The Wireless Association ( CTIA ) is an international nonprofit membership organization that has represented the wireless communications industry since 1984. Membership in the association includes wireless carriers and their suppliers, as well as providers and manufacturers of wireless data services and products. More information about CTIA is available on the Association s website at http://www.ctia.org/about-us. 2 Throughout this Petition Commercial Mobile Radio Services are also referred to as wireless services. 1
Rules 2130 through 2159 of the Commission s Rules Regulating Telecommunications Providers, Services, and Products, 4 Code of Colorado Regulations (CCR) 723-2. 2. Pursuant to the NOPR, the Commission set a schedule for the filing of comments, reply comments, and a date for a public hearing on the proposed rules. The Commission requested that initial comments be filed no later than June 5, 2015. The Commission also requested that reply comments be submitted no later than June 19, 2015. The Commission established a public hearing date of June 26, 2015. 3. By Interim Decision No. R15-0530-I, issued June 5, 2015, a Supplemental NOPR extended the date of the public comment hearing to August 17, 2015; the deadline to file written comments was extended to June 25, 2015; and the deadline to file responsive comments was extended to July 17, 2015. 4. Interested parties, including CTIA, filed initial comments and reply comments addressing the original proposed rules. Numerous commenters maintained in those comments that the Commission lacked jurisdiction to promulgate the proposed rules, particularly as to requirements imposed on CMRS providers, Internet-protocol-enabled service providers, and Voice-over-internet-protocol ( VoIP ) service providers. These commenters observed that CMRS, Internet-enabled and VoIP services are exempt from regulation under article 15 of Title 40 and under the Public Utilities Law 3 of Colorado, pursuant to C.R.S. 40-15-401(1)(c), (q), and (r). 4 3 Section 40-1-101, C.R.S., provides that Articles 1 to 7 of Title 40 shall be known and may be cited as the Public Utilities Law. 4 Section 40-15-401(1)(c), C.R.S., provides that certain services, products and providers are exempt from regulation under this article [15] or under the Public Utilities Law of the State of Colorado. Services, products and providers so-exempted include CMRS (at subsection (1)(c)), internet-protocol-enabled-services (at subsection (1)(q)) and voice-over-internet protocol service (at subsection (1)(r)). 2
5. By Interim Decision No. R15-0897-I dated August 17, 2015, Administrative Law Judge Paul C. Gomez established a schedule for a series of workshops to address the issues commenters raised regarding the initial proposed rules and attempt to arrive at consensus rules, though it was apparent that the legal issue of Commission jurisdiction and authority to promulgate these rules could not be resolved. Judge Gomez presided over these workshops, which took place from September December, 2015, and which were held while preserving any party s objection(s) to Commission jurisdiction. 6. Interim Decision No. R15-0897-I also established a schedule for the issuance of revised proposed rules based on previously submitted comments and input from the workshops, and set dates for comments and a public hearing on the revised proposed rules. Specifically, Interim Decision No. R15-0897-I provided that revised rules resulting from the workshops would be issued by January 11, 2016, and that written comments on any revised proposed rules would be due on January 25, 2016. Interim Decision No. R15-0897-I also set a further hearing on the proposed rules for February 4, 2016. 7. By Interim Decision No. R16-0038-I, issued by Judge Gomez on January 15, 2016, the Commission proposed revised emergency basic service rules. By Interim Decision No. R16-0057-I Judge Gomez extended the deadline for written comments on those revised proposed rules to January 29, 2016. The hearing on the revised proposed rules remains set for February 4, 2016. 8. While the revised proposed rules address some of the discrete issues and concerns raised by CTIA in its comments on the original proposed rules, CTIA s overarching concern remains. Based both on state and federal law, the Commission does not have jurisdiction to promulgate rules that act on CMRS providers as contemplated by the revised proposed rules, 3
even within the context of basic emergency services. For this reason, CTIA brings this Petition pursuant to Rule 1304(i), seeking a declaratory ruling that the revised proposed rules exceed the Commission s jurisdiction to act on CMRS and CMRS providers. 9. CTIA is bringing this Petition as soon as was practicable, given that the revised proposed basic emergency services rules were not issued until January 15, 2016, and CTIA required an opportunity to review those revised proposed rules to determine whether, and to what degree, they still purport to act on CMRS providers. Because the revised proposed rules still impose a great number of extra-jurisdictional requirements on CMRS providers, including obligations relating to network construction and configuration, interconnection obligations, reliability and contingency planning, and outage reporting and associated obligations, CTIA seeks a declaratory ruling in this pending proceeding, as permitted by Rule 1304(i)(I), that the revised proposed rules issued along with Interim Decision R16-0038-I exceed the Commission s jurisdiction to act or impose requirements on CMRS or CMRS providers. Pursuant to Rule 1304(i)(II), the Commission may issue such a declaratory order to terminate a controversy or to remove an uncertainty affecting a petitioner with regard to any tariff, statutory provision, or Commission rule, regulation, or order. A declaratory ruling here would be appropriate to settle the threshold issue in this proceeding relating to Commission jurisdiction. II. SUMMARY OF ARGUMENT 10. The proposed new basic emergency services rules would impose entirely new and significant obligations on CMRS and CMRS providers, including network construction and configuration obligations, interconnection obligations, reliability and contingency planning, and outage reporting and associated obligations that do not exist in the Commission s current basic 4
emergency service rules, and which the Commission has no jurisdiction to impose on CMRS or CMRS providers. 11. CTIA acknowledges that basic emergency services present important public interest issues, but that does not alter the fact that the Commission must have jurisdiction to issue the rules it proposes. No matter the public interest rationale, the Commission may not act beyond its authority, derived from Article XXV of the Colorado Constitution and Title 40 of the Colorado Revised Statutes, which both limit the Commission to regulating public utilities. CMRS is not, and has never been, a public utility service under Colorado law. Further, the Commission s jurisdiction in the emergency services domain is limited to issues concerning basic emergency service providers. The Commission has no jurisdiction to enact rules imposing obligations on originating service providers, a term introduced by the proposed rules and defined nowhere in the Commission s enabling statutes. This is particularly true as to CTIA s CMRS provider members who would serve as originating service providers for 9-1-1 calls, as CMRS and CMRS providers are expressly exempt from Commission regulation under Title 40, pursuant to C.R.S. 40-15-401(1)(c). 12. In addition, federal law, most particularly 47 U.S.C. 615a-1(d) and 47 U.S.C. 332(c)(3)(A), significantly limit the Commission s jurisdiction over CMRS providers, and the Commission s ability to impose on CMRS providers obligations inconsistent with those federal statutes. The Commission s proposed rules are also inconsistent with, and preempted by these federal statutes, insofar as they impose obligations on CMRS providers inconsistent with these statutes as described herein. 5
III. PETITION AND ARGUMENT A. The Commission s jurisdiction is created and defined by Article XXV of the Colorado Constitution and Title 40 of the Colorado Revised Statutes, and is limited to regulation of public utilities. 13. The Commission is a Public Utilities Commission, and the Commission s charge, pursuant both to Article XXV of the Colorado Constitution and Title 40 of the Colorado Revised Statutes, is to regulate public utilities. Article XXV of the Colorado Constitution provides that the power to regulate public utilities resides with the General Assembly, that this authority may be vested in such agency of the State of Colorado as the General Assembly shall by law designate, and that [u]ntil such time as the General Assembly may otherwise designate, such authority shall be vested in the Public Utilities Commission of the State of Colorado. 5 This authority is described as the power to regulate the facilities, service and rates and charges therefor of every public utility, as presently or may hereafter be defined as a public utility by the laws of the State of Colorado. Id. Similarly, C.R.S. 40-1-101 defines articles 1 to 7 of Title 40 as Colorado s Public Utilities Law, to be applied to public utilities. This defines both the scope and limit of the Commission s jurisdiction. 14. It is elementary that a public utility commission derives its authority wholly from constitutional or statutory provisions, and possesses only such powers as are thereby conferred. 6 Article XXV of the Colorado Constitution gives the Commission authority to regulate public 5 Colorado Constitution, Article XXV. 6 Snell v. Pub. Utils. Comm n, 114 P.2d 563, 565 (Colo. 1941). 6
utilities, but this authority can be restricted by statute. 7 Once the legislature acts, the scope of the Commission's authority and procedures is necessarily controlled by statute. 8 15. The Commission is required to abide by the limitations that the General Assembly imposes on the Commission s jurisdiction over public utilities, even where the Commission seeks to accomplish socially desirable objectives. For instance, the Colorado Supreme Court held that the Commission did not have the authority to order a gas utility to implement a discount gas rate plan for low-income elderly and disabled customers, even though the Court recognized that those efforts to provide relief to low-income customers were laudatory. 9 16. So here, the Commission is not vested with authority to enact sweeping reform to its basic emergency services rules merely because ensuring the reliability, resiliency and affordability of those services throughout Colorado 10 is a laudatory goal. As the Colorado Supreme Court has held, repeatedly, the breadth of [the Commission s] authority is to be tested 7 See, e.g., Mountain States Tel. and Tel. Co. v. Pub. Utils. Comm n, 576 P.2d 544 (Colo. 1978); Miller Bros., Inc. v. Pub. Utils. Comm n, 525 P.2d 443 (Colo. 1974). 8 See, e.g., Pub. Utils. Comm n v. Colorado Motorway, Inc., 437 P.2d 44, 46 (Colo. 1968) ( the breadth of [the Commission s] authority is to be tested by the statutes themselves and not by the unbridled whim of the Commission. The Commission is a creature of statute. Both the power and scope of its authority and its procedures are necessarily controlled by the Act upon which it relies. ); Colo. Office of Consumer Counsel v. Mountain States Tel. & Tel. Co., 816 P.2d 278, 283 (Colo. 1991) ( Specific statutory provisions regulating public utilities serve to restrict the Commission's authority. ) (citing Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 626 P.2d 159 (Colo. 1981). 9 Mountain States Legal Found. v. Pub. Utils. Comm n, 590 P.2d 495, 498 (Colo. 1979) ( [A]lthough the PUC has been granted broad rate making powers by Article XXV of the Colorado Constitution, the PUC's power to effect social policy through preferential rate making is restricted by statute no matter how deserving the group benefiting from the preferential rate may be. ); accord Colo. Mun. League v. Pub. Utils. Comm n, 591 P.2d 577, 581 (Colo. 1979) ( [T]he PUC lacks authority to effect social legislation by ordering that pay phone rates be reduced according to age and indigency classifications. ). 10 NOPR, 2. 7
by the statutes themselves, 11 and not self-determined by the Commission, no matter the goals the Commission seeks to achieve. And the Commission s jurisdiction is limited to the regulation of public utilities by both Article XXV of the Colorado Constitution and the Colorado Public Utilities Act. B. The Commission does not have jurisdiction to regulate CMRS providers, as CMRS providers are not public utilities under Colorado law. 17. Since at least 1987, when article 15, entitled Intrastate Telecommunications Services was added to Title 40, 12 CMRS has not been defined as public utility service in Colorado, and has unmistakably been exempted from regulation by the Commission, both as to regulation of CMRS as a service and as to regulation of CMRS providers. Section 40-15-401(1), C.R.S. states that: The following products, services and providers are exempt from regulation under this article or under the Public Utilities Law of the State of Colorado. CMRS is included in that listing of exempt services, and has been since at least 1987. 40-15-401(1)(c), C.R.S. 13 Per the clear language of C.R.S. 40-15-401(1), CMRS as a service, CMRS products, and CMRS providers are each exempt from regulation under article 15 or under Colorado s Public Utilities Law (articles 1-7 of Title 40). The Commission has no jurisdiction to regulate CMRS. CMRS is not a public utility service, and in any event, Section 40-15-401(1)(c) expressly and unequivocally eliminates any suggestion of Commission authority over CMRS. 14 11 Colorado Motorway, 437 P.2d at 46. 12 Article 15 was originally actually added in 1984, but was repealed and reenacted in 1987. 13 CMRS was originally exempted under the statute as cellular telecommunications services at C.R.S. 40-15-401(1)(b). House Bills 14-1329 and 14-1331 replaced the term cellular telecommunication services with the term commercial mobile radio services, and the exemption of CMRS from Commission regulation is now codified at C.R.S. 40-15-401(1)(c). 14 C.R.S. 40-15-402 also makes unmistakably clear that the Commission has no jurisdiction over CMRS providers. That statutory provision, entitled [n]o regulation by the commission no certificate required, states that no certificate of public convenience and necessity shall be 8
18. The Commission s recitation of the statutory authority supporting its jurisdiction to issue these new basic emergency service rules fails to identify any statute providing the Commission jurisdiction to impose new rules that impose significant obligations on CMRS providers. The original proposed rules (Attachment A to the NOPR) and the revised proposed rules (Exhibit A to Interim Decision No. R16-0038-I) both state that: The statutory authority for the promulgation of these rules is found at 29-11-102(2)(b); 29-11-106(3); 40-2-108; 40-3- 102; 40-3-103; 40-4-101(1) and (2); 40-15-201; 40-15-301; and 40-15-503(2)(g). None of these statutory provisions authorize the Commission to promulgate rules that act on CMRS or CMRS providers. Per C.R.S. 40-15-401(1), CMRS is exempt from Commission regulation under article 15 of Title 40 and under articles 1-7 (Colorado s Public Utilities Law) of Title 40. Thus, C.R.S. 40-15-401(1) eliminates 40-2-108; 40-3-102; 40-3-103; 40-4-101(1); 40-15-201; 40-15-301; and 40-15-503(2)(g) as any basis to enact rules that act upon CMRS or CMRS providers. Sections 29-11-102(2)(b) and 29-11-106(3), C.R.S. also provide no basis to promulgate basic emergency service rules that act broadly on CMRS or CMRS providers, as they deal only with the Commission s authority to increase the statutory $0.70 monthly emergency services surcharge and to address issues relating to multi-line telephone systems ( MLTS ). 15 In short, the Commission is precluded from regulating CMRS or CMRS providers under every statutory section cited by the Commission as the source of its authority to promulgate the proposed rules. 19. Nor can the Commission regulate CMRS providers under the rubric of regulating basic emergency services. Here, again, the Commission s jurisdiction is limited and prescribed required for the provision of services under this part 4. This would include CMRS as per C.R.S., 40-15-401(1)(c). 15 At most Section 29-11-102(2)(b) could support Commission rules relating to the monthly emergency surcharge that would have the effect of acting narrowly on CMRS providers in that very limited context, as CMRS providers impose this surcharge on their end user customers. 9
by statute. The Commission regulates basic emergency service as a Part 2 telecommunications service. C.R.S. 40-15-201(2). Section 29-11-101(1.2), C.R.S. defines a basic emergency service provider (often referred to as a BESP ) as any person authorized by the commission to undertake the aggregation and transportation of 911 calls to a PSAP. CMRS providers are not basic emergency service providers. 20. Within the context of basic emergency services, the Commission, by statute, is limited to regulating BESPs. The Commission now seeks to expand that limited jurisdiction and impose new basic emergency services rules that would act not just on BESPs but also on originating service providers ( OSPs ), which the revised proposed rules define as a person offering or providing any form of communication services by which an end user may make a 9-1-1 call. 16 Under this broad definition, CMRS providers would be OSPs. The obligations imposed on OSPs under the new rules would include, inter alia, interconnection obligations relating to 9-1-1 call delivery, rates and network architecture, broad informational, notification and reporting requirements, particularly in the context of 9-1-1 failures or outages, and personnel staffing requirements. 21. OSP is an entirely new term introduced by the proposed new rules; it has no basis in any Colorado statute, and does not exist in the Commission s current basic emergency services rules. 17 The Commission effectively seeks to redefine in this proceeding the statutory definition of basic emergency services to now include much more than just the aggregation, transporting and routing of 911 calls, 18 and to assert broad jurisdiction over CMRS and CMRS 16 Proposed rule 2131(v) at Interim Decision No. 16R-0038-I, Attachment A, p.5. 17 4 CCR 723-2, Rules 2130 2148. 18 C.R.S. 29-11-101(1.2). 10
providers. The Commission, however, cannot self-define or expand its jurisdiction. Colorado Motorway, 437 P.2d at 46. 22. The proposed rules would nonetheless extensively regulate wireless service providers as OSPs within the 9-1-1 ecosystem, on the theory articulated in the NOPR that Colorado s 2014 telecommunications reform legislation expanded the Commission s authority to regulate basic emergency service without regard to the technology used by a service provider. 19 The fundamental notion embodied in the NOPR and proposed rules seems to be end-to-end regulation of all 9-1-1 communications regardless of the technology used in the communication; under the Commission s proposal, any issue related in any way to 9-1-1 service would be subject to regulation. 23. The Commission s claim to such newly expanded basic emergency services jurisdiction, however, rests entirely on a single statement from hearings regarding Colorado s 2014 telecommunications reform, and is not grounded in any actual statutory language. What the actual and controlling statutory language does provide is that: [n]othing in this part 4 shall be construed to affect, modify, limit, or expand the Commission s authority to regulate basic emergency service. 20 This language was added to Section 40-15-401 by House Bills 14-1329 and 14-1331 as part of the Colorado s further deregulatory reform of telecommunications in the 2014 legislative session. As the language of Section 40-15-104(4) makes clear, that 2014 deregulatory legislation neither contracted nor expanded the Commission s jurisdiction over basic emergency services. The Commission today continues to possess the same jurisdiction over basic emergency services that it possessed prior to 2014. That jurisdiction was, and 19 NOPR at 22, 61. 20 C.R.S. 40-15-401(4). 11
remains today, limited to regulation of basic emergency services, defined as the aggregation and transport of 911 calls to a PSAP. 21 24. The Commission in fact agreed in the NOPR that C.R.S. 40-15-401(4) merely maintained that status quo with regard to the Commission s jurisdiction over basic emergency services: Recent legislation amending Colorado s telecommunications statutes expressly maintained the Commission s authority over emergency services (2014 Telecom Reform Legislation). 22 As the Commission further noted, the General Assembly has declared basic emergency service subject to regulation under part 2 of article 15, Title 40, and [t]he recent legislation amending Colorado s telecommunications statutes clearly maintained the Commission s authority over emergency services. 23 25. On this point CTIA agrees with the Commission; the 2014 telecommunications reform legislation maintained the status quo of the Commission s jurisdiction over basic emergency services. Thus, because the Commission, in the emergency services domain, had jurisdiction only over basic emergency services prior to the 2014 legislation, by operation of C.R.S. 40-15-401(4), it today has jurisdiction only over basic emergency services. Further, because the Commission did not have jurisdiction over OSPs in the emergency services domain prior to the 2014 legislation, the Commission today does not have such jurisdiction over OSPs. Most particularly, because the Commission did not have jurisdiction of any kind over CMRS or CMRS providers prior to the 2014 legislation, by operation of C.R.S. 40-15-401(4) the Commission today does not have jurisdiction over CMRS or CMRS providers, whether in the emergency services domain or otherwise. 21 C.R.S. 29-11-101(1.2), 40-15-201(2). 22 NOPR at 22, 60 (emphasis added). 23 Id. (emphasis added). 12
26. The Commission acknowledged that C.R.S. 40-15-104(4) contains unambiguous statutory language, but then went on to suggest that the amendments legislative history leaves no doubt of the General Assembly s intent to maintain Commission authority over 9-1-1 services, without regard to the technology used by a service provider. 24 The Commission s argument for jurisdiction begins from a faulty premise. The Commission is correct that the statutory language of Section 40-15-104(4) is unambiguous. The Commission is correct that Section 40-15-104(4) maintained such jurisdiction over basic emergency services as the Commission possessed prior to the 2014 amendments. The problem is that the Commission incorrectly describes the extent of its jurisdiction prior to 2014. 27. Nothing in the Colorado statutes prior to the 2014 amendments stated or suggested that the Commission has authority over emergency services without regard to the technology used by a service provider. Nothing in the Colorado statutes today provides that the Commission has jurisdiction over emergency services without regard to the technology used by a service provider. Nothing in the Colorado statutes prior to 2014, or now, suggests that the Commission has jurisdiction over service providers, to the extent that service providers would include anything other than basic emergency service providers in this context. The Commission clearly is purporting, however, to assert jurisdiction over OSPs as service providers by self-defining both the new term OSP, and the scope of its asserted jurisdiction over OSPs, in the proposed rules. Most importantly, nothing in the Colorado statutes prior to 2014, or as they exist now, suggests that the Commission has jurisdiction over CMRS or CMRS providers. To the contrary, as explained previously, C.R.S. 40-15-401(1)(c) affirmatively provides that the Commission does not possess such jurisdiction. 24 NOPR at 22, 61. 13
28. Similarly, the proposed rules newly and broadly define 9-1-1 call, a term that, like originating service provider, is not found in the Colorado statutes prior to or after 2014 and does not exist in the Commission s current rules. A 9-1-1 call is defined as any form of communication, regardless of technology and including, but not limited to, voice, data, text, and video, using 9-1-1 or an equivalent designator to communicate an emergency or matter of public safety, selectively routed to an appropriate PSAP, via a network designed for this purpose. 25 To the extent that this new definition of a 9-1-1 call seeks to expand the Commission s jurisdiction over basic emergency services, particularly to reach OSPs, it similarly ignores the clear status quo language found in Section 40-15-401(4). Similarly, to the extent that any form of communication is meant to encompass anything beyond the aggregation and transport of 911 calls to the PSAP, there is no statutory basis for the Commission to assert such jurisdiction. 29. The Commission relies on very limited legislative history from the 2014 amendments to support its argument to expand its basic emergency services jurisdiction, but this effort must fail for several reasons. First, there is no need for recourse to legislative history, because the language of Section 40-15-104(4) is unambiguous, as the Commission itself agrees. It is settled law that extrinsic evidence, including legislative history, is irrelevant and unnecessary to aid in the construction of unambiguous statutory language. 26 30. In any event, the Commission has taken the single phrase that serves as the lynchpin of its jurisdictional argument regardless of technology out of the context in which that term was used in legislative sessions. The NOPR observes that the lead sponsor of the 2014 25 Proposed Rule 2131(b), at Interim Decision No. R16-0038-I, Attachment A. 26 See, e.g., People v. Dist. Court, 713 P.2d 918, 921 (Colo. 1986) ( If the clear intent of the legislature appears with reasonable certainty, we need not resort to other rules of statutory construction ). 14
telecommunications reform bills in the House of Representative, the Honorable Angela Williams, used the phrase regardless of technology in discussions concerning the impact of the proposed legislation on the Commission s jurisdiction. 27 Similarly, Senator Andy Kerr testified before the Senate Business and Labor Committee that the intent of the legislation is to maintain the PUC s regulatory oversight of basic emergency service, regardless of technology. 28 31. First, nothing in Senator Kerr s statement supports the Commission s newly asserted jurisdiction over OSPs, including CMRS providers. Senator Kerr indicated that the 2014 legislation was intended to maintain Commission jurisdiction over basic emergency service, which at that time included regulation of BESPs, and not OSPs. Further, Senator Kerr and Representative Williams clarified their reference to the phrase regardless of technology in comments that they submitted in this proceeding. 29 As explained in those comments, the regardless of technology discussions related to an issue raised by Joseph Benkert, representing the Boulder Regional Emergency Telephone Service Authority. Mr. Benkert expressed a specific concern as to the Commission s 9-1-1 authority in light of the legislature s clear intent to deregulate the various Internet Protocol (IP) technologies that were the subject of HB14-1329, even when those technologies might be used to deliver basic emergency services. 30 32. As the General Assembly Comments noted: The 911 environment over which the PUC has statutory authority was accurately described by Mr. Benkert as the delivery of a 911 27 NOPR at 23, 62 (quoting Transcript of Testimony of Representative Williams before the House Business, Labor, Economic and Workforce Development Committee, March 25, 2014, attached as Exhibit 1 to the NOPR). 28 Id. (quoting Transcript of Senator Kerr before Senate Business Labor Committee, April 16, 2014, attached as Exhibit 1 to the NOPR). 29 Docket No. 15^-0318T, Comments of Senate Majority Leader Mark Scheffel, State Senator Andy Kerr, State Representative Angela Williams, and former State Representative Carole Murray (filed Dec. 11, 2015) ( General Assembly Comments ). 30 Id. at 1-2. 15
call from an aggregation point to the Basic Emergency Service Provider, and then to the PSAP. He further made it clear that this 911 environment did not include any call from the end user through the retail service to the aggregation point. 31 In other words, Mr. Benkert s question focused on the impact of using IP-based services to deliver basic emergency services as that term was (and is) defined and understood to mean the delivery of a 9-1-1 call from an aggregation point to the BESP, and then to the PSAP. Mr. Benkert was not referencing OSPs or the origination of 9-1-1 calls by an end user, and Representative Williams and Senator Kerr s references to without regard to technology had nothing to do with OSPs or the origination of 9-1-1 calls by end users. Rather, they were assuring Mr. Benkert that the Commission would continue to maintain jurisdiction over basic emergency services i.e., the basic emergency service provider s aggregation and transportation of 911 calls to a PSAP as defined by C.R.S. 29-11-101(1.2) even if that aggregation and/or transportation was IP-based. 33. As Representative Williams and Senator Kerr stated in their jointly submitted comments: The clear legislative intent was to maintain the status quo regarding the Commission s authority over 911 service: i.e., the Commission s then 911 regime of regulating Basic Emergency Service Providers and the delivery of a 911 call from an aggregation point to the BESP, and then to the PSAP. Indeed, we feel that we could not have more clearly expressed this particular intent in stating in HB14-1329 [that] [n]othing in this Part 4 shall be construed to affect, modify, limit or expand the commission s authority to regulate basic emergency service. 32 34. Accordingly, there is no basis to read the 2014 legislative amendments as expanding the Commission s jurisdiction to include the authority to promulgate rules acting on 31 Id. 32 Id. at 2 (referencing and quoting language now codified as C.R.S. 40-15-401(4)). 16
OSPs. Both the express language of Section 40-15-401(4) and the General Assembly Comments make this clear. This is particularly so as to any rule that would act on CMRS or CMRS providers as OSPs, given the express language of C.R.S. 40-15-401(1)(c) exempting CMRS and CMRS providers from Commission jurisdiction. C. The proposed rules, insofar as they act on CMRS or CMRS providers, would also violate 47 U.S.C. 615a-1(d) and 47 U.S.C. 332(c)(3)(A). 35. A basic tenet of wireless regulation is that the exercise of state authority over emergency communications cannot be inconsistent with Federal law or [Federal Communications] Commission requirements. 33 In particular, 47 U.S.C. 332(c)(3)(A) leaves states with a very limited role, and limited jurisdiction, with regard to wireless service providers, prohibiting state commissions from regulating the rates, or the terms of market entry, for wireless providers. 34 The Commission s across-the-board regulation of the wireless 9-1-1 ecosystem through the proposed rules will contravene these statutory limitations. 36. The proposed rules would conflict with established Federal Communications Commission ( FCC ) rules governing outage reporting, requiring a level of reporting, information sharing, staffing and coordination that is contradictory to requirements already imposed by the FCC, and potentially more onerous and expensive for providers to comply with. 37. Wireless service providers are required to file outage reports with the FCC when calls to PSAPs cannot be completed, call-back information is unavailable or location information is unavailable. 35 Specifically, wireless providers are required to provide notice to the FCC within 120 minutes of discovering that they have experienced on any facilities that they own, 33 47 U.S.C. 615a-1(d). 34 47 U.S.C. 332(c)(3)(A). 35 47 C.F.R. 4.9(e), 4.5(e). 17
operate, lease, or otherwise utilize, an outage of at least 30 minutes duration... [t]hat potentially affects at least 900,000 user minutes.... 36 Wireless providers are also required to provide outage information to personnel designated by a PSAP. 37 38. CTIA acknowledges that the revised proposed rules hew closer to the FCC outage reporting standards than the original rules proposed in the NOPR, which defined a 9-1-1 failure or 9-1-1 outage as any situation in which 9-1-1 calls cannot be transported from the service end users to the PSAP.... 38 Revised proposed rule 2131(d) now incorporates the 900,000 user minutes and at least 30 minutes in duration standards from the FCC rules. However, proposed rule 2131(d)(III) also now provides that Commission staff shall conduct a triennial review of this standard in order to determine the proper threshold and adjust as necessary and appropriate due to events impacting the public s ability to complete 9-1-1 calls or changes according to federal guidelines. 39 Allowing for changes to the threshold for impacted user minutes or durational standards used to define a 9-1-1 failure/9-1-1 outage to keep pace with the FCC rules would be appropriate if the Commission had jurisdiction to apply such standard to CMRS providers but it does not. Allowing for changes to the definition of 9-1-1 failure/9-1-1 outage, however, as necessary and appropriate due to events impacting the public s ability to complete 9-1-1 calls is nebulous guidance that invites departure from the federal standards, and therefore runs counter to 47 U.S.C., 615a-1(d). Such a standard would allow staff to wholly depart from federal standards based on any events impacting the public s ability to complete 9-1-1 calls, whether those events are within the control of providers, whether 36 47 C.F.R. 4.9(e). User minutes are defined at 47 C.F.R. 4.7(e). 37 47 C.F.R. 4.9(e). 38 Original proposed rule 2131(d) at NOPR Attachment A, p.2 (emphasis added). 39 Proposed rule 2131(d)(III) at Decision No. R16-0038-I, Attachment A, p.2. 18
the providers in question fall within the Commission s jurisdiction under Colorado law, and without any specificity as to the degree of impact that would allow staff to suggest a standard that differs from FCC rules. 39. Further, proposed rule 2139 imposes on OSPs outage-related requirements that are inconsistent with federal law. Proposed rule 2139, entitled 9-1-1 reliability, resiliency and contingency planning and service restoration requires OSPs to: collaborate with BESPs and ALI providers (if offering service separately from a BESP) in developing the BESP/ALI provider s 9-1-1 Reliability and Contingency Plan; 40 have technicians trained and qualified to resolve 9-1-1 failures or outages on site, when necessary, within two hours or as soon as safely possible after becoming aware of a 9-1-1 failure or outage; 41 notify the affected governing bodies/psaps of a 9-1-1 outage as well as the Colorado State Emergency Operations Center, if activated for a related event, and provide information including the number of service end users affected, the affected geographic area, the expected duration of the outage, and whether other providers may be affected; 42 following notification of the PSAP, implement, along with the BESP, the applicable contingency plan and provide other mutually agreed upon temporary solutions to maintain safety communications; 43 provide notification of the 9-1-1 outage to the Commission within 120 minutes, providing the same information as required to be provided to governing bodies/psaps pursuant to proposed rule 2139(g), and additional information including the suspected cause of the failure or outage, the expected duration, and the action being taken to 40 Proposed rule 2139(b) at Decision No. R16-0038-I, Attachment A, p.16. 41 Proposed rule 2139(f) at Decision No. R16-0038-I, Attachment A, p.19. 42 Proposed rule 2139(g) at Decision No. R16-0038-I, Attachment A, p.19. 43 Proposed rule 2139(h) at Decision No. R16-0038-I, Attachment A, p.20. 19
investigate or resolve the failure or outage; 44 within two hours of restoration of 9-1-1 service, or as soon as possible under the circumstances, provide call-back numbers to the affected PSAP(s) for calls that were attempted to be made to 9-1-1 but unable to be delivered due to the failure or outage; 45 and, file with the Commission within 30 days of a failure or outage a written report detailing the root cause of the failure or outage that includes planned future corrective action to reduce the likelihood of a similar outage in the future. 46 40. These extensive reporting and network management requirements imposed on OSPs, particularly the root cause analysis and future preventive measures contemplated by proposed rule 2139(k), are inconsistent with FCC rules, and therefore violate 47 U.S.C. 615a- 1(d). For instance, the numerous and substantial requirements of proposed rule 2139 would impose a de facto reliability standard on OSPs with regard to network management and staffing, notwithstanding the fact that the FCC has expressly excluded OSPs from its Part 12 reliability rules. 47 41. Further, proposed rule 2139 s myriad requirements would also confer upon the Commission de facto jurisdiction to regulate the entry (and ongoing ability to offer service) of wireless OSPs in the Colorado market, as all wireless providers would be required to undertake the planning, collaboration, reporting and ultimately network management contemplated by the rule. Again, the requirement in proposed rule 2139(k), in particular, would require a wireless 44 Proposed rule 2139(i) at Decision No. R16-0038-I, Attachment A, p.20. 45 Proposed rule 2139(j) at Decision No. R16-0038-I, Attachment A, p.21. 46 Proposed rule 2139(k) at Decision No. R16-0038-I, Attachment A, p.21. 47 Section 12.4(a)(4)(ii)(B) expressly excludes OSPs from the 911 Service Provider definition, and therefore from the scope of Part 12. 47 C.F.R. 12.4(a)(4)(ii)(B); accord Improving 911 Reliability; Reliability and Continuity of Communications Networks, Including Broadband Technologies, Report and Order, 28 FCC Rcd 17476, 17489 36 (2013). 20
OSP, if it was the responsible provider, 48 to report information that could include the type of equipment that failed, the performance of network monitoring links, whether diversity of routing contributed to the failure/outage, whether a lack of backup power contributed to the failure/outage, and any action the responsible provider may plan to reduce the likelihood of a similar outage in the future. This certainly makes it appear that the Commission could potentially require a wireless OSP to initiate equipment upgrades or replacements, improve network monitoring links, enhance diversity, improve backup power, or take other remedial action, to the extent that the wireless OSP is deemed to be the responsible provider in a 9-1-1 failure or outage situation. Imposing such requirements on wireless providers would be a clear violation of 47 U.S.C. 332(c)(3)(A) s prohibition against state commission regulation of the terms of wireless market entry (or the ongoing provision of such service). 49 42. In addition, when it comes to reliability issues, wireless service providers offer service nationwide, and therefore need a single, consistent standard with which to comply. Congress tasked the FCC to develop best practices that promote consistency in network diversity requirements for the delivery of E911 calls and call handling in the event of network outages. 50 Because the 9-1-1 system is becoming increasingly interstate in nature, 51 the FCC has recognized that a comprehensive national approach to the quality and reliability of 911 48 Responsible provider appears to be an undefined term in the revised proposed rules, and it is foreseeable that there may not be agreement as to which provider in a 9-1-1 failure or outage is the responsible provider. 49 To the extent that the Commission will not seek to require wireless OSPs to undertake corrective action based on these reports, then there is no reason to require such extensive reporting from wireless OSPs in the first instance. This is particularly true given that the Commission does not possess audit authority over wireless service. C.R.S. 40-15-402(1). These extensive reporting requirements, however, amount to de facto audit requirements. 50 47 U.S.C. 615a-1(h). 51 911 Governance and Accountability, PS Docket No. 14-193, Policy Statement and Notice of Proposed Rulemaking, FCC 14-186 (2014). 21
service is needed, to avoid the risk of confusion and incompatibility that would arise from a patchwork of potentially inconsistent standards. 52 43. The various interconnection requirements that would be imposed on wireless OSPs under the proposed rules would also violate 47 U.S.C. 615a-1(d) and 47 U.S.C. 332(c)(3)(A). Proposed rule 2134 would require OSPs and BESPs to interconnect at physically and geographically diverse aggregation points, 53 which is inconsistent with controlling federal law that allows wireless providers to interconnect with local exchange carriers at a single point of interconnection within a LATA. 54 Proposed rule 2134(d) provides that a BESP shall file with the Commission within 30 days of execution all interconnection agreements with OSPs. 55 Proposed rule 2134(e) provides that a BESP or a party interconnecting with a BESP can request that the Commission determine the rates, terms and conditions of interconnection. 56 44. Collectively, these provisions in proposed rule 2134 would impose requirements inconsistent with federal law, most particularly 47 U.S.C. 251 and 252 that govern the process of negotiation, arbitration and filing of interconnection agreements between carriers. As with the outage requirements in proposed rule 2139, the interconnection requirements that would be imposed under proposed rule 2134 could also require wireless providers to construct, configure and maintain their networks in a particular fashion to satisfy the rule. Because the Commission 52 Id. 36. 53 Proposed Rule 2134(c) at Decision No. 16R-0038-I, Attachment A, p. 9. 54 Western Radio Services, Co. v. Qwest Corp., 678 F.3d 970 (9th Cir. 2012), cert. denied, 133 S.Ct. 758. 55 Proposed Rule 2134(d) at Decision No. 16R-0038-I, Attachment A, p. 9. CTIA notes that the redline revised proposed rules appear to indicate two separate subsection (d)s for proposed rule 2134, so the identification of this particular provision, and any subsection that follows in proposed rule 2139, could be subject to change. 56 Proposed Rule 2134(e) at Decision No. 16R-0038-I, Attachment A, p. 9. 22
would require compliance with these requirements, proposed rule 2134 would also implicate 47 U.S.C. 332(c)(3)(A) s prohibition against state commission regulation of wireless market entry. IV. CONCLUSION 45. The Commission lacks jurisdiction under its authorizing statutes to impose its proposed new basic emergency service rules on wireless services or wireless service providers. While the Commission has jurisdiction to regulate BESPs, it does not have jurisdiction to regulate, or impose rules that act on, OSPs, including wireless service providers. Further, C.R.S. 40-15-401(1)(c) specifically exempts wireless services from the scope of the Commission s jurisdiction. Finally, many of the proposed new rules would be inconsistent with federal law, specifically 47 U.S.C. 615a-1(d) and 47 U.S.C. 332(c)(3)(A), to the extent they would impose requirements on CMRS providers relating to network construction and configuration, interconnection, reliability and contingency planning, and outage reporting and associated obligations. For all of these reasons, the Commission should decline to adopt new basic emergency services rules that purport to act on CMRS or CMRS providers. WHEREFORE, for the foregoing reasons, CTIA requests that the Commission grant this petition and enter an order declaring that the Commission lacks jurisdiction to promulgate the proposed rules set forth in Attachment A to Decision No. 16R-0038-I, insofar as those rules purport to act on, or impose any requirements on, commercial mobile radio service or commercial mobile radio service providers. 23
Dated: January 29, 2016 By: /s/ Philip J. Roselli Philip J. Roselli, No. 20963 Wilkinson Barker Knauer, LLP 1755 Blake Street, Suite 470 Denver, CO 80202 Tel: (303) 626-2350 Fax: (303) 626-2351 proselli@wbklaw.com Attorneys for CTIA-The Wireless Association 24
CERTIFICATE OF SERVICE I hereby certify that on this 29th day of January 2016, the foregoing CTIA Petition for Declaratory Ruling was filed and served via electronic filing with the Colorado Public Utilities Commission, and served on those parties shown on the Commission s Certificate of Service accompanying such filing. /s/ Philip J. Roselli Philip J. Roselli. 25