To All Telecommunications and I-VoIP Services Provider Clients-

The Nebraska Public Service Commission (“NPSC”) recently sent letters to all Nebraska telecommunications providers requiring certification of compliance with Nebraska Universal Service Fund (“NUSF”) and Enhanced Wireless 911 (“E911”) statutes, rules, regulations and NPSC orders.

The letter details the recent merger of the NPSC‘s NUSF and Enhanced Wireless Department into the Nebraska Telecommunications Infrastructure and Public Safety Department (“NTIPS”). The new department seeks signed and notarized affidavits certifying compliance with NUSF and E911 rules by October 30, 2009, with annual affidavits following. Specifically, NTIPS requests that each telecommunications service provider attest to the following:

1. Familiarity with the overall requirements of the NUSF and E911 Fund & of the NPSC
2. Whether the company provides Nebraska Telephone Assistance Program (“NTAP”) service
3. Whether the company provides telecommunications service and if so whether it provides the service in Nebraska
4. Whether the company has complied with all NPSC regulations and orders related to the collection and remittance of NUSF surcharges
5. Whether the company receives support from Nebraska‘s High Cost, Telehealth, NTAP or Dedicated Wireless programs
6. Whether the company provides wireless service and if so whether it provides the service in Nebraska
7. Whether the company has complied with all applicable statutes and orders related to the collection and remittance of the E911 surcharge

Finally, the NPSC requests contact information (including name, address, telephone number and email address) for the person charged with:

• Regulatory compliance
• Wireless E911 implementation
• Maintenance of NTAP reports
• Companies with which the certifying company has interconnection or resale agreements or contracts that are not already listed on the NPSC‘s website (https://www.psc.state.ne.us/home/NPSC/usf/NUSF_Companies.html) and whether these companies are providing service in Nebraska

The letter warns that failure to complete the affidavit and enclosed contact forms will result in administrative penalties.

CLIENT ADVISORY

Clients are encouraged to thoroughly review letters received from the NPSC requesting attestation of compliance with NUSF and E911 rules and regulations.  Although many of the requested certifications are not problematic, others may pose problems for carriers, particularly interconnected Voice over Internet Protocol (“I-VoIP”) providers.

Specifically, providers should carefully consider whether their services are appropriately categorized in Nebraska as “telecommunications services.”  For example, even though Nebraska presently considers nomadic I-VoIP services to be telecommunications services, thereby requiring compliance with the NUSF, the 8^th Circuit Court of Appeals recently affirmed that the FCC preempted the state‘s authority to assess USF fees on nomadic I-VoIP service providers.  Thus, clients- I-VoIP providers in particular- should consider the impact of this decision on their responsibilities with respect to the NPSC affidavit.

Clients should carefully review their past compliance with NUSF and E911 rules to ensure truthful attestations.  Furthermore, clients are encouraged to carefully consider the impact of each individual response and tailor responses accordingly, in particular due to the uncertain and shifting sands of state regulatory authority over VoIP services.

Clients who have any further questions or concerns about the information contained in the Advisory should contact Chris Canter at: cac@commlawgroup.com or 703-714-1308.