On Monday, June 22, 2015, the FCC released a Report and Order establishing a process to authorize interconnected VoIP providers to obtain direct access to telephone numbers. Once the process takes effect (after approval by OMB, the Office of Management and Budget), interconnected VoIP providers will no longer be dependent on traditional telecommunications carriers to get telephone numbers to assign to their end users. The FCC determined that the benefits of allowing direct access, such as improved competition, the deployment of advanced services and the elimination of inefficiencies and unnecessary expenses, outweighed any “perceived risks.”

As a general matter, except for “unique conditions... reflecting the particular circumstances of interconnected VoIP providers,” under the new ruling, interconnected VoIP providers must “comply with the same requirements applicable to carriers seeking to obtain numbers,” including any state requirements, industry guidelines and practices, facilities readiness and numbering utilization and optimization requirements. The new ruling also requires that VoIP providers:

• provide the relevant state commissions with regulatory and numbering contacts when requesting numbers in those states;
• request numbers under their own unique “operating company number,” or OCN;
• file any requests for numbers with the relevant state commissions at least 30 days prior to requesting numbers; and
• provide customers with the opportunity to access all abbreviated dialing codes (N11 numbers) in use in a geographic area.

The ruling also requires any interconnected VoIP provider that is not state-certified to apply for and obtain certification from the FCC, and directed the Wireline Competition Bureau to implement and maintain a certification process under which the applicant must:

• comply with applicable FCC rules and state and industry guidelines and procedures;
• provide contact information of personnel qualified to address issues relating to regulatory requirements, compliance, 911 and law enforcement;
• provide proof of compliance with the FCC’s “facilities readiness” requirement;
• certify that it is in compliance with its Universal Service Fund, Telecommunications Relay Service, North American Numbering Plan and local number portability administration contribution obligations, its obligations to pay regulatory fees and its 911 obligations; and
• certify that it has the requisite technical, managerial and financial capacity to provide service, including that none of its key management and technical personnel identified to support such capacities “are being or have been investigated... for failure to comply with any law, rule, or order.”

To facilitate the filing and processing of the applications, the FCC has created a separate filing mechanism within its Electronic Comment Filing System. The Wireline Competition Bureau will review an application and, if it conforms with the FCC’s procedural rules, will issue an “Accepted-For-Filing Public Notice” seeking comments on the application. Any comments must be filed within 15 days after release of the Notice, unless the Bureau establishes a different deadline. On the 31st day after the Notice is released, the “application will be deemed granted unless the Bureau notifies the applicant that the grant will not be automatically effective.” This would occur if: (1) the applicant fails to respond promptly to the FCC’s inquiries; (2) an application is associated with a non-routine request for waiver of the FCC’s rules; (3) timely-filed comments on the application raise public interest concerns that require further FCC review; or (4) the Bureau determines that “the request requires further analysis to determine whether a request for authorization for direct access to numbers would serve the public interest.”

The FCC rejected arguments that it could not or should not authorize interconnected VoIP providers to directly obtain telephone numbers unless it first classified such providers as telecommunications carriers and/or it classified interconnected VoIP as a telecommunications service. The formal regulatory classification of interconnected VoIP service, therefore, remains unresolved. The FCC did rule, however, that interconnected VoIP providers who obtain the FCC’s authorization for direct access to telephone numbers “are subject to, and acknowledge” the FCC’s “enforcement and forfeiture authority,” including potential loss of its telephone number authorization, the “inability to obtain additional numbers pending that revocation, and reclamation of any un-assigned numbers that the provider has directly obtained.”

Of note, the FCC clarified and adopted “an affirmative obligation” of wireline and wireless carriers to honor all port-in and port-out requests by interconnected VoIP providers “without unreasonable delay or unreasonable procedures.” At the same time, the FCC directed the North American Numbering Council “to examine and address any specific considerations for interconnected VoIP provider porting both to and from wireline, wireless, and other interconnected VoIP providers.”

Recognizing the “nomadic” nature of many interconnected VoIP services, the FCC rejected imposing geographic limitations on the porting of numbers to or from interconnected VoIP providers; instead, landline and wireless carriers and interconnected VoIP providers must port numbers to each other to the extent such porting is “technically feasible.” In a similar vein, the FCC recognized that interconnected VoIP providers who have obtained telephone numbers directly are no longer dependent on the geographical status of the numbering entity from whom the provider obtained the telephone number.

The FCC confirmed that interconnected VoIP providers are eligible for direct interconnection with other carrier networks, and, while it indicated that it expected direct access to numbers to facilitate and encourage such interconnection, it did not declare that telecommunications carriers have a specific obligation to establish such direct interconnection. The FCC also found that direct access to telephone numbers by interconnected VoIP providers does not affect intercarrier compensation, nor does it hinder or prevent proper call routing or tracking. The FCC found that it is not necessary to phase-in or transition to its new regime of direct access for interconnected VoIP providers, and that VoIP Positioning Center providers (entities that support VoIP 911 and E911 capabilities) can obtain direct access to so-called pseudo-ANI, or “p-ANI,” codes for use in the delivery of E911 services in those states where such entities cannot obtain certification as a carrier.

The Report and Order becomes effective 30 days after publication in the Federal Register. However, the change to the FCC’s rules requiring prior FCC authorization before interconnected VoIP providers can gain direct access to telephone numbers “shall become effective upon announcement in the Federal Register of OMB approval and an effective date of those rules.”