Port Whining: Latest FCC Guidance Lacking, CTIA Contends

New York— The prospects for wireless local-number portability (LNP) are getting clearer, even though the Cellular Telecommunications and Internet Association (CTIA) isn't completely happy with the FCC's latest guidance.

In an order released Oct. 7, the Federal Communications Commission (FCC) appears to have resolved all of the uncertainties surrounding the terms and conditions under which consumers could transfer (or "port") a phone number from one wireless carrier to another. The FCC, however, hasn't yet issued a final directive on how carriers should handle the porting of landline numbers to wireless phones.

Under the FCC's LNP mandate, consumers in the top 100 metropolitan statistical areas must be allowed beginning Nov. 24 to transfer their wireless-phone number from one wireless network to another. Consumers would also be allowed to transfer a landline number to a wireless phone.

In smaller markets beginning Nov. 24, wireless LNP must be implemented within 30 to 180 days after a single wireless carrier in that market makes a request to competitors. State public utilities commissions can also make the request.

With its Oct. 7 order, the FCC responded to carriers who complained they couldn't strike porting agreements in time for the Nov. 24 deadline unless the commission clarified basic implementation rules. For wireless-to-wireless porting, the commission seems to have achieved that goal. "At first glance," a CTIA spokesman said, "this covers the bases."

Laurie Itkin, Leap Wireless government affairs director, agreed. The directive, she contended, "will accelerate [wireless-to-wireless] agreements between wireless carriers" and enable all major wireless carriers — but perhaps not all smaller carriers — to meet the Nov. 24 deadline in the top 100 markets. Major carriers have had teams of people working on the technical issues to make LNP happen by deadline day, but carriers "had been hung up in negotiating business rules," she said.

Before the directive, different carriers were trying to negotiate different business rules to deny or delay a port, including whether to require payment of early termination fees before authorizing a port, Itkin explained.

As for landline-to-wireless porting rules, CTIA president Tom Wheeler complained that "the commission still has not answered some basic implementation questions." The FCC, he said, "has simultaneously managed to tie the industry's hands and hold our feet to the fire."

At least one major carrier, Leap Wireless, believes the FCC will postpone a decision on most major landline-to-wireless issues until it holds a formal rulemaking, a process that normally takes 18 to 24 months but has sometimes been completed in as little as six months. The FCC might opt for a rulemaking, Leap's Itkin explained, because it has been inundated with "so many comments insisting on a formal rulemaking because of the broadness of the policy issues."

However it chooses to resolve the landline-to-wireless issues, the FCC in its Oct. 7 order resolved the wireless-to-wireless issues, Itkin said.

The FCC made several key points:

• First, the full commission backed its wireless bureau, which earlier stated that carriers "may not refuse to port while attempting to collect fees or settle an account." Five major carriers had asked the FCC to declare that guidance invalid, and carrier T-Mobile and others complained the guidance didn't specify whether delinquent accounts or early termination fees were covered.
• For these carriers, the FCC simply stated that "wireless customers who port their numbers should have the same flexibility to switch carriers that nonporting customers have currently, even if they have not settled their account with the old carrier." Carriers, the FCC continued, "may not refuse to port numbers upon receipt of a valid request from the customer's new carrier."
• Second, the FCC encouraged wireless carriers to complete a wireless-to-wireless port within the 2.5 hours promised as a goal by the CTIA. The commission, however, didn't make the time frame mandatory, but it said it would "reexamine the issue if it received numerous consumer complaints about the length of the wireless porting process."
• Third, the commission struck down a demand by small rural wireless carriers that could have sharply limited the number of consumers who could port their number from one wireless carrier to another. The rural carriers fear that larger multimarket rivals operating on their turf would lure away subscribers.

The commission stated that "wireless-to-wireless porting does not require the wireless carrier receiving the number … to have numbering resources [phone numbers] in the rate center associated with the ported number." A rate center is often synonymous with the local landline calling areas.

The rural wireless carriers had contended that they didn't have to port numbers to a rival wireless carrier if the carrier seeking the port had no "numbering resources" in the rate center serving the customer.

In perhaps its most far reaching ruling, the FCC said wireless carriers would have to port to rival wireless carriers whether they have porting agreements in place or not. "In cases where wireless carriers cannot reach an agreement on the terms and conditions of [wireless-to-wireless] porting," the FCC said, "they must port numbers upon receipt of a valid request with no conditions.

Despite the FCC's progress, the CTIA complained that the commission isn't moving quickly enough to impose the same rules for landline-to-wireless porting.

Landline companies are restricting porting times to four business days, and they've adopted the rate-center argument that the rural wireless carriers adopted to prevent 85 percent of wireline customers from porting to wireless, CTIA complained.

Even if the FCC issues clear directives on these issues in the coming weeks, it's still not certain that all carriers would be technically prepared to meet the landline-to-wireless deadline or, for that matter, the wireless-to-wireless deadline, some analysts say. In some markets, that would create a patchwork of LNP compliance that will leave consumers and salespeople dazed on Nov. 24.

The influx of consumers wanting to port their wireless number could also create confusion and delays during the first days of porting, carriers said, if computer systems get overloaded and data-entry errors require salespeople to manually intervene in the process.

Concerns over potential confusion on Nov. 24 could be moot if the U.S. Court of Appeals for the District of Columbia circuit postpones LNP implementation. That's one of the potential outcomes of a lawsuit filed by the Cellular Telecommunications and Internet Association (CTIA), which contends that the FCC violated federal law in failing to resolve the implementation issues after all these years. The association asked the court to compel the FCC to resolve the issues before LNP goes into effect.

The FCC, however, isn't required to answer the complaint until Oct. 24, only a month before the LNP deadline.