Kansas Corporation Commission Rules on Interconnection and Porting Obligations Applicable to VoIP Services
On March 23, 2021, the Kansas Corporation Commission (KCC") issued a long-awaited Order resolving jurisdictional and other issues surrounding interconnection and porting issues between Voice over Internet Protocol (VoIP") providers and rural local exchange carriers (LECs") in Kansas. VoIP providers and rural LECs in Kansas have had a longrunning and contentious battle regarding number porting requests made by VoIP carriers to rural LECs. VoIP providers argued that because the FCC has ruled that VoIP carriers are entitled to local number portability (LNP") just like traditional landline carriers, rural LECs were obligated to port numbers without unreasonable delay. Rural LECs, on the other hand, asserted that unless a requesting VoIP provider had its own facilities located within a LEC's exchange area, the port requests were a bridge too far. This was because the rural LEC would be required to route calls outside of its exchange and incur expensive out-of-area transport charges from other carriers in order to send those calls to the VoIP carrier. This fight raged on for years, with some rural LECs giving in to the VoIP carriers' demands, while other LECs dug in their heels to avoid third-party transport charges and passing on those costs to their rural local telephone service customers.
All of this bubbled over when IdeaTek filed a complaint with the KCC in 2019 alleging that a rural LEC had refused to interconnect indirectly with IdeaTek by sending traffic through AT&T, to provide LNP, and to complete calls to VoIP providers. The LEC struck back and argued that it was not required to interconnect with VoIP carriers at all under Section 251/252 of the Communications Act of 1934, as amended, because Section 251/252 interconnection obligations only applied when the carrier requesting the port was a telecommunications provider, which VoIP providers were not since they only provided information services. The LEC also pointed out that rather than building its own transport facilities and network, IdeaTek was just trying to get a free ride on the backs of the LEC's rural customers by attempting to force the LEC to obtain third-party services to transport calls to IdeaTek's facilities that were located far outside of the LEC's exchange. The LEC asserted that this would ultimately require the LEC and its local telephone service customers to subsidize service for IdeaTek's customers because the LEC and its customers would have to pay for the third-party transport services, rather than IdeaTek and its customers.
Because IdeaTek's complaint implicated issues that affected the telecommunications industry in general in Kansas, the KCC opened up a general investigation to determine how it should regulate, if at all, the porting of numbers for VoIP providers' customers and VoIP interconnection in rural areas. AT&T weighed in on the proceeding, and informed the KCC that IdeaTek was directly connected to its network through an interconnection agreement, and that the connection could be used by IdeaTek to transit traffic to other carriers connected to AT&T for calls to and from AT&T's service area. However, AT&T also said that IdeaTek wanted to use its interconnection with AT&T to indirectly route long distance traffic to rural LECs, and the FCC has determined that interconnection arrangements could not be used just for the transmission of long distance traffic. A coalition of rural LECs filed briefs with the KCC arguing, among other things, that while they were obligated to port numbers to VoIP carriers pursuant to the FCC's rules, they were only required to do so to the extent that it was technically feasible to do so. Because IdeaTek could not use AT&T's interconnection to route traffic indirectly to rural LECs, they asserted that the only technically feasible way for ports to be completed would be for IdeaTek to build its own facilities in the rural LECs' exchanges.
Although the FCC has issued decisions prohibiting the use of interconnection agreements for the routing of long distance traffic, VoIP number porting, and call completion in rural areas, the FCC has steadfastly put its head in the sand and refused to rule on whether VoIP is a telecommunications or an information service for Section 251/252 interconnection purposes. In the absence of FCC guidance in this area, the Eighth Circuit determined in Charter Advanced Servs. (MN) LLC v. Lange, 903 F.3d 715 (8th Cir. 2018) that VoIP was an information service not subject to state oversight or entitled to interconnection under Section 251 of the Act. In its Order, the KCC stated that the Eighth Circuit's decision was not binding on the KCC (Kansas is in the Tenth Circuit). Nonetheless, the KCC determined that it should be consistent with Charter to avoid creating conflicting rules across various jurisdictions, and ruled that VoIP providers are not telecommunications carriers under Kansas law, and are therefore not entitled to interconnection rights applicable to telecommunication carriers. The KCC also ruled that rural LECs are required to port numbers and fulfill rural area call completion obligations consistent with FCC rules and orders.
The Order is a relatively safe" one for the KCC in that it does not break any new ground and is consistent with prior court and FCC rulings. It does, however, make clear that VoIP providers in Kansas, like IdeaTek, cannot route calls indirectly to rural LECs through interconnection arrangements with other carriers, that VoIP carriers are not entitled to Section 251/252 interconnection arrangements with rural LECs, and that if VoIP carriers want to port numbers from a rural LEC, they will first have to have their own facilities in the rural LEC's service area so that it will be technically feasible for those ports to be able to be performed, and for calls to be able to be completed.