Discontinuance in the face of destruction: the future of telecommunications law after Superstorm Sandy.

• Author: Affrunti, Michael

1. INTRODUCTION II. SANDY'S IMPACT ON AMERICAN INFRASTRUCTURE III. THE HISTORY OF TELECOMMUNICATION LAW AND REGULATIONS A. The Computer Inquiries B. Divestiture of Bell and Computer Inquiry III C. The Telecommunications Act of 1996 IV. THE END OF AN ERA: TURNING THE TIDE ON TELECOMMUNICATIONS V. PROPOSED REFORMS A. The FCC Should Provide New Rules for Disaster Relief B. Principles for Long Term Transitions I. INTRODUCTION

   When a natural disaster occurs, the devastation often serves as a wakeup call for society to recognize its dependence on technology. It seems with each new technological development, we become increasingly reliant on the ability to connect and communicate instantaneously, such that any lapse in electronic service feels like the end of the world. On October 30, 2012, the most densely populated region in America faced this realization when Superstorm Sandy struck New York and New Jersey. (1)

   When Superstorm Sandy (2) made landfall, pandemonium struck the nerves of millions of people in the Northeast. "[M]any residents found themselves unable to communicate because wireless and cable networks, unlike the old copper network, are not self-powered." (3) Immediate reports calculated that "[m]ore than 8.2 million households were without power in 17 states," about two million of which were in New York City. (4) While many individuals were scrambling to find a source of heat and gasoline, major telephone companies were busy trying to repair the damaged infrastructure and restore a sense of security. Telephone restoration was accomplished in some locations more efficiently than in others, where the road to recovery raised important questions about the future of telecommunications law.

   This note discusses Voice Link, a Verizon Wireless (5) voice-only service that was substituted for traditional copper landlines in areas severely damaged by Superstorm Sandy. (6) It examines Verizon's carrier of last resort obligations under the federal Common Carrier Regulation (7) and addresses whether Voice Link's wireless home phone service satisfies the standard. Part I discusses the impact of Superstorm Sandy on telecommunications infrastructure and the emergence of Voice Link as a replacement. Part II outlines the history of regulations and lawsuits that imposed federal requirements on companies like Verizon, which historically had a monopoly over certain essential services. In Part III, this note analyzes how public policy and regulations have failed to keep up with the changed landscape of telecommunications services, introducing the issues and arguments set forth in Part IV, through the lens of the Voice Link debate. Given the current outlook, federal reforms are needed to protect victims of natural disasters and to provide for a safe transition into the next generation of telecommunications technology.

2. SANDY'S IMPACT ON AMERICAN INFRASTRUCTURE

   In the final week of October 2012, Superstorm Sandy ravaged the east coast, killing over one hundred people, destroying more than half of a million homes, and leaving the nation's most densely populated area in an unprecedented state of disarray. (8) By the time the storm reached New Jersey, "Superstorm Sandy ... slammed into Atlantic City as a strong Category 1 (90 mph)" (9) hybrid storm that not only destroyed power lines and the city's famous boardwalk (10) but also left hundreds of individuals stranded." In New York City, "[s]eawater ... inundated tunnels, subway stations and the electrical system that powers Wall Street...." (12) The total cost of the storm was estimated to be around "$65 billion in damage ... making it the second-costliest weather disaster in American history behind only Hurricane Katrina." (13)

   One of the most perplexing aspects of Superstorm Sandy was how it affected different geographic locations in vastly different ways. While some areas were fortunate enough to have power restored within days, other areas took weeks to regain power. (14) In particular, towns along coastlines and on barrier islands, such as Mantoloking, New Jersey, were highly publicized as bearing the brunt of the storm. (15) Mantoloking was nearly swept away and burned down after a natural-gas fire erupted, (16) presenting quite possibly the longest road to recovery for any municipality in New Jersey. Residents were forced to wait months before they could return home and, even then, could barely fathom how they would return to the lives they once knew. Unfortunately, in some cases, their doubts have proven to be true.

   Immediately following the storm, major companies like Verizon coordinated restoration efforts with government officials, filed outage reports, and "explorefd] the impact of Hurricane Sandy and the resiliency of communications networks" with the Federal Communications Commission ("FCC"). (17) Verizon spent several months "evaluating] the extent of the damage to its facilities which in many cases were literally washed away--and conducting] extensive research." (18) Taking a look at usage patterns, population size, and the geographic landscape, Verizon concluded that the copper-based infrastructure was uneconomical to repair. (19) The proffered alternative was Voice Link.

   Introduced by Verizon Senior Vice President Tom Maguire, Voice Link is "a device that ... emulates the key features and functionalities of a traditional telephone line." (20) The difference, he said, was, "rather than be connected to a wire that's up in the air or underground, it actually uses [an] antenna to connect to ... the Verizon wireless network." (21) According to the company website, Voice Link requires commercial power and is equipped with a battery unit that uses standard AA batteries. (22) If users are ever in an emergency situation, they can dial 911, and the technology identifies the address for the 911 systems and operator, just like any traditional landline phone service. (23)

   Based on Verizon's characterizations alone, one might believe that Voice Link is a fair, plausible substitute to the old copper landline system. However, many customers living in the storm-trodden areas adamantly opposed the technology due to its shortcomings, mainly that "it can not do almost any data application that is part of the traditional utility-based phone network, commonly called the "PSTN," Public Switched Telephone Networks, or sometimes referred to as "POTS," Plain Old Telephone Service." (24) In other words, "the service can't do ... fax or credit card handling or DSL (broadband) or even dial-up

   Internet service using a modem and a phone line." (25) Perhaps most alarming, however, is that:

   [I]f the power fails--a backup battery provides two hours of talking time, hardly reassuring to people battered by Sandy--but Verizon warns Voice Link users that calls to 911 under normal conditions might not go through because of network congestion. Medical devices that require periodic tests over phone lines, like many pacemakers, cannot transmit over Voice Link. (26) Voice Link's debut undoubtedly came at a difficult time; it was perhaps destined for controversy. Yet, the criticisms began long before Superstorm Sandy was ever imaginable when Verizon CEO declared his long-term goal was "to kill the copper." (27) Over the past several years, Verizon and AT&T have been lobbying for permission to break away from copper networks and either upgrade to fiber networks or go completely wireless. (28) Consequently, opponents of Voice Link view the switch from copper networks to Voice Link as a bad faith attempt to offer a glimpse into the inevitable--a completely wireless world. (29) Regardless of whether these speculations hold any merit, Superstorm Sandy can conceivably be viewed as an accidental pilot program. Many consumers believe it is only a matter of time before we transition completely off of wireline technologies. Others, including policymakers. New Jersey residents, labor unions, and consumer groups, are more concerned with how the transition occurs.

   Apart from the public outcries over Voice Link's inferiority, several organizations and government officials joined in opposing Verizon's conduct on legal grounds. (30) In New Jersey, the State Board of Public Utilities and Division of Rate Counsel argued that if Verizon was allowed to discontinue landline service, it would be dodging its carrier of last resort obligations as an incumbent local exchange carrier ("ILEC"). (31) Similarly, over one thousand advocates in New York submitted negative comments to the New York Public Service Commission. (32) In light of this overwhelming pressure, the company withdrew its plans in New York. (33)

   In New Jersey, the conflict over Voice Link persists. Verizon maintains that its justifications for imposing Voice Link on the barrier islands of New Jersey are valid (34) based on the fact that, unlike Lire Island--a large island off the coast of Long Island, New York--there are other service providers near the New Jersey shore. (35) However, this rationale ignores Verizon's unique status as a regulated incumbent phone company in the local telephone market. Basic services have long made wirelines compatible with many functions other than just a dial tone, and have broadened society's expectations for what a telecommunications company provides. The question is, do these expectations matter? Are we entitled to all the services a telephone company is capable of providing, or only those that fall in line with technological trends and business practices? At what point do business determinations take weight over the public interest?

   To fully understand the legality of Verizon's conduct in New Jersey, one must first assess the history under which telecommunications services developed, and how federal law has tried to stay current with the continuously developing telecommunications industry. Such analysis demonstrates the repeated lagging of the law behind technology and how a narrow reform in the context of natural...