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BEFORE THE NEBRASKA PUBLIC SERVICE COMMISSION

By Denise Barnes,2014-08-04 03:56
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BEFORE THE NEBRASKA PUBLIC SERVICE COMMISSION

    BEFORE THE NEBRASKA PUBLIC SERVICE COMMISSION

In the matter of the Commission )

    on its own motion seeking to ) Application No. NUSF-1

    establish guidelines for )

    administration of the Nebraska ) PROGRESSION ORDER NO. 18

    Universal Service Fund )

    TESTIMONY OF GREG L. ROGERS

    ON BEHALF OF LEVEL 3 COMMUNICATIONS, LLC

Q. PLEASE STATE YOUR NAME, POSITION, EMPLOYER, AND

    BUSINESS ADDRESS.

    A. My name is Greg Rogers. I am Director of State Regulatory Affairs with Level 3

    Communications, LLC (“Level 3”). My business address is 1025 Eldorado

    Boulevard, Broomfield, Colorado 80021.

    Q. ON WHOSE BEHALF ARE YOU FILING THIS TESTIMONY?

    A. I am filing this testimony on behalf of Level 3.

    Q. PLEASE REVIEW YOUR EDUCATION AND RELEVANT WORK

    EXPERIENCE.

    A. I have an undergraduate degree in Political Science from Colorado College and a

    Juris Doctor from the University of Colorado School of Law. I have been

    employed by Level 3 since June, 1998. I have worked in a number of capacities

    at Level 3 over the course of those years but have been principally responsible for

    federal and state regulatory matters. My current duties include managing Level

    3’s state regulatory compliance in all 50 states where Level 3 is certificated,

    representing Level 3’s legal and public policy positions before state and federal

    regulators, and providing regulatory guidance to Level 3 business clients

    concerning Level 3’s products and services.

    Q: HAVE YOU EVER TESTIFIED BEFORE THIS COMMISSION?

    A: No.

    Q. WHY IS LEVEL 3 SUBMITTING TESTIMONY IN APPLICATION NO.

    NUSF-1 IN RESPONSE TO THE NEBRASKA PUBLIC SERVICE

    COMMISSION’S (“COMMISSION”) PROGRESSION ORDER NO. 18?

    A. Level 3 is primarily a wholesale provider of communications services to

    bandwidth intensive customers and Internet Protocol (“IP”) based resellers.

    Among the services that Level 3 provides are wholesale voice and IP services to

    enhanced service provider (“ESP”) customers, who in turn offer retail VoIP

    services to end users. Because Level 3 is not a retail provider of VoIP services,

    the proposal to apply the Nebraska Administrative Code’s definition of

    “telecommunications service” to interconnected VoIP providers as defined by the

    Federal Communications Commission (“FCC”) for the purposes of Nebraska

    Universal Service Fund (“NUSF”) contributions would not appear to implicate

    Level 3 directly. However, because its customers would be impacted and because

    Level 3 is witnessing a great deal of debate and confusion in the regulatory arena

    concerning VoIP services, Level 3 opposes the adoption of rules that would seek

    to impose state level regulations on VoIP services at this time.

    Q. WHAT IS LEVEL 3’S POSITION REGARDING WHETHER

    INTERCONNECTED VOIP PROVIDERS PROVIDE TELECOM-

    MUNICATIONS SERVICE” AS DEFINED IN NEBRASKA, AND

    WHETHER THE FCC’S NEW SAFE HARBOR ALLOCATION

    METHODOLOGY PROVIDES AN AVENUE FOR THE ASSESSMENT

    OF NUSF?

    A. In the Vonage Preemption Order the FCC asserted its exclusive jurisdiction over

    interconnected VoIP services and preempted state utilities commissions from

     1asserting separate jurisdiction over interconnected VoIP services. The FCC also

    continues to pursue a broad effort to study the appropriate regulatory and public

    2policy treatments for IP-enabled services generally. In limited instances thus far,

    the FCC has adopted certain federal regulations for a defined sub-set of VoIP

    services (“interconnected VoIP’) that are in the marketplace today. To date, the

    FCC has asserted its exclusive jurisdiction and set forth regulations concerning

    interconnected VoIP services in the areas of 911, CALEA and now Federal USF.

    In light of the FCC’s assertion of exclusive jurisdiction and its explicit refusal to

    define interconnected VoIP as a “telecommunications service,” it would be

    inappropriate and beyond the Nebraska Commission’s authority to define

     1 In re Vonage Holdings Corp. Petition for Declaratory Ruling Concerning an Order of the Minn. Pub. Util.

    Comm’n, WC Docket No. 03-211, FCC 04-267 (FCC rel. Nov. 12, 2004) (“Vonage Preemption Order”). 2 IP-Enabled Services, WC Docket No. 04-36, Notice of Proposed Rulemaking, 19 FCC Rcd 4863 (2004)

    (“IP-Enabled Services Proceeding”).

    interconnected VoIP as “telecommunications service” in order to collect state

    USF on VoIP revenues in Nebraska as it has proposed to do.

    Q. PLEASE DISCUSS IN FURTHER DETAIL WHY THE NEBRASKA

    COMMISSION’S PROPOSAL IS NOT A VIABLE COURSE OF ACTION.

    A. In its Vonage Preemption Order, the FCC preempted the Minnesota Public

    Utilities Commission (“MPUC”) of its regulatory jurisdiction to impose 911

    requirements on Vonage’s Digital Voice services. In asserting its exclusive

    regulatory jurisdiction over VoIP services like Vonage’s Digital Voice service,

    the FCC found “that the characteristics of Digital Voice preclude any practical

    identification of, and separation into, interstate and intrastate communications for

    purposes of effectuating a dual federal/state regulatory scheme, and that

    3permitting Minnesota’s regulations would thwart federal law and policy.” Even

    now that the FCC has established regulations concerning the assessment of FUSF

    through a safe harbor mechanism, the preemptive effect and the basis for the

    Vonage Preemption Order remain in effect. Therefore, Level 3 disagrees with the

    Commission’s findings in NUSF-40/PI-86 and its current proposal that a legally

    valid avenue to impose regulations in the form of NUSF on VoIP services exists

    without a specific grant of authority from the FCC.

    Q. WHY WOULDN’T THE REMAINING AMOUNT OF REVENUE NOT

    ASSESSED UNDER THE FCC’S SAFE HARBOR BE LEFT TO STATE

    AUTHORITIES TO ASSESS?

     3 Vonage Preemption Order at ? 14

    A. While the proposed state regulation at issue in the Vonage Preemption Order

    concerned E-911 rather than USF, the FCC’s rationale for asserting its exclusive

    applies with equal strength no matter what the regulatory issue may be. In its

    order upholding the preemptive effect of the Vonage Preemption Orde, the United

    States District Court and Court of Appeals for the Eighth Circuit supported the

    FCC’s conclusion “that the interstate and int[ra]state [sic] components of

    Vonage’s services are inseverable, such that it is not possible for [the] MPUC to

    regulate the intrastate component of the service without impermissibly regulating

    4the interstate component.” After the Vonage Preemption Order, any regulation

    imposed on interconnected VoIP services by the FCC must be presumed to be

    exclusive of any other form of regulation until the FCC itself revises its

    jurisdictional exclusivity in some manner. Because the FCC has not amended its

    assertion of exclusive jurisdiction in any way since the Vonage Preemption Order,

    state regulators continue to be barred from regulating interconnected VoIP

    services like Vonage’s Digital Voice service. Level 3 believes the “safe harbor”

    5methodology the FCC established in its USF Contribution Order is simply a

    continuation of the rationale for exclusive federal jurisdiction, which is that the

    very nature of VoIP makes the separation of intrastate and interstate components

    of VoIP services impractical. It follows, therefore, that there is no methodology

    that the Nebraska Commission could legally adopt that would accurately identify

     4th Vonage Holdings Corp. v. The Minn. Pub. Util. Comm’n; 394 F.3d 568 (8 Cir. 2004) [Citing ?31 of the

    Vonage Preemption Order]. 5 In the Matter of Universal Service Contribution Methodology, WC Docket No. 06-122, FCC 06-94 (FCC

    rel. June 27, 2006) (“USF Contribution Order”).

    assessable retail intrastate VoIP service revenues for the purpose of funding

    Nebraska’s USF program.

    Q. WHAT IS LEVEL 3’S RECOMMENDATION?

    A. With the FCC’s Vonage Preemption Order in effect and the IP-Enabled Services

    Proceeding still open, state level USF programs must continue to operate based

    upon the intrastate telecommunications service carriers provide that are subject to

    their jurisdiction. This means that any intrastate telecommunications components

    sold by carriers to ESP end users, like intrastate private lines or local exchange

    interconnection services, that are incorporated into a retail VoIP service will

    continue to be assessable. However, if the Commission does conclude that it has

    the jurisdiction to apply NUSF to VoIP service providers it should follow the

    FCC’s definition of “interconnected VoIP provider” and should remain consistent

    with the FCC’s safe-harbor methodologies rather than attempting to create unique

    state definitions and methodologies which will only slow down the effort to

    establish a uniform regulatory environment that will be conducive to a

    competitive communications marketplace.

    Q. DOES THIS CONCLUDE YOUR TESTIMONY?

    A. Yes.

    thRespectfully submitted this 17 day of November, 2006.

     LEVEL 3 COMMUNICATIONS, LLC

     By_______________________________________

     Loel P. Brooks, #15352

     BROOKS, PANSING BROOKS, PC, LLO

     1248 “O” Street, Suite 984

     Lincoln, NE 68508-1424

     (402) 476-3300

    CERTIFICATE OF SERVICE

     th The undersigned hereby certifies that on this 17day of November, 2006, an

    original, five copies and an electronic copy of the Testimony of Greg L. Rogers on

    Behalf of Level 3 Communications, LLC, in Application No. NUSF-1, Progression Order

    No. 18, were delivered to:

Jeff Pursley

    Nebraska Public Service Commission

    1200 “N” Street

    300 The Atrium

    Lincoln, NE 68508

     ___________________________________

     Loel P. Brooks

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