On Feb. 11, 2015, the FCC (News - Alert) issued a declaratory ruling clarifying the VoIP symmetry rule. That rule, adopted in the 2011 USF/ICC Order, concerns the right of local exchange carriers to assess access charges on other carriers for functions performed by it and/or by its retail VoIP partner, regardless of whether the functions performed or the technology used correspond precisely to those used under a traditional plain old telephone system architecture.

The rule was intended to ensure that VoIP providers and their LEC partners would have “the same opportunity, during the transition to a bill-and-keep compensation system to collect intercarrier compensation” for VoIP-PSTN traffic. Some parties, however, asserted that a LEC partnering with an over-the-top VoIP provider cannot deliver the “functional equivalent” of end office switching, and thus the LEC would not be entitled to assess and collect access charges for end office switching. As a result of this dispute, there are now a significant number of access charge disputes involving VoIP traffic.

In the declaratory ruling, the FCC clarified that the rule does not require a LEC or its VoIP partner to provide the physical last-mile facility to be eligible to assess access charges for end office switching. Assuming that a LEC’s tariff includes charges for the “functional equivalent” of end office switching, it may impose such charges. The commission found that the “functional equivalent” of end office switching exists when the intelligence associated with call set-up, supervision, and management is provided. 

The declaratory order has been appealed to the D.C. Circuit, where the court is in the process of receiving briefs on these issues. The issue is important to many competitive LECs that partner with VoIP providers, as it affects their rights to assess access charges on other carriers (and thus the financial viability of those services).

William B. Wilhelm (News - Alert) is a partner and Jeffrey R. Strenkowski is of counsel at Morgan Lewis & Bockius LLP (www.morganlewis.com).