The Federal Communications Commission will vote Thursday on a plan that, according to Chairman Ajit Pai, will strip away regulations that prevent telcos from upgrading their networks.

But in doing so, the Republican-controlled FCC plans to eliminate a requirement that telcos provide Americans with service at least as good as the old copper networks that provide phone service and DSL Internet. The requirement relates to phone service but has an impact on broadband because the two services use the same networks.

As carriers like AT&T and Verizon turn off copper networks throughout much of the country, many people fear that the networks won't be replaced with fiber or something of similar quality. That's why the FCC in 2014 created a "functional test" for carriers that seek permission to abandon copper networks. In short, carriers have to prove that the replacement service is just as good and provides the same capabilities as what's being discontinued.

Ditching consumer protections

Pai's proposal, titled "Accelerating Wireline Broadband Deployment," would eliminate the functional test, claiming that it "deterred and delayed carriers from upgrading their networks."

But without the functional test, carriers could declare that an area is served with technology that's good enough as long as mobile service is available, consumer advocates say. Carriers wouldn't have to provide fiber, and they wouldn't even have to provide fixed wireless services, which beam signals to antennas on people's houses and provide a more stable connection than mobile service.

Especially in rural areas, where carriers don't make as much money, they might just decide not to provide either a wireline or fixed wireless connection to replace the copper. That could leave residents scrambling to find a better replacement for copper-based service. DSL Internet access over copper lines is, unfortunately, the best available service in some parts of the country.

A letter to the FCC by the Communications Workers of America, the consumer advocacy group Public Knowledge, the NAACP, and others, explains the concerns:

Under current rules, an incumbent carrier cannot discontinue, reduce, or impair service unless there is a replacement service that is as good as the discontinued service. This is called the Functional Test. The FCC's order will now interpret "service" to include a carrier's tariff. A tariff is a very basic description of what a carrier offers and at what rate. This means the Commission's remaining notice requirements will only apply to basic services, but will not include 911 services, ensure network reliability, or interconnection with devices consumers use such as medical monitors, alarm systems, fax and credit card machines, and equipment for people who are hearing impaired. In some cases, the sound of a dial tone may constitute service under the tariff test and therefore not even trigger a public comment and review.

Today, 16 US senators wrote to the FCC, urging the commission to reverse course and leave the consumer protections in place.

FCC plays “word games”

When contacted by Ars, a spokesperson for Pai countered the advocacy groups' statements but did not answer all of our questions.

"The allegations you cite are absolutely false," Pai's office told Ars. "Nothing in the declaratory ruling changes the Commission's rules requiring 911 service, or our rules governing the connection of consumer-premise equipment (such as medical monitors) to the network, or our requirement that providers of fixed voice service not discontinue that service without going through a process that requires public notice and comment and FCC review."

But the advocacy groups did not claim those exact rules are being eliminated. What's being eliminated, they say, is the requirement that carriers demonstrate that the replacement service meets 911 reliability standards and other standards.

"It is appalling that the chairman would stoop to playing word games when people's lives literally depend on the outcome of this proceeding," Harold Feld, a longtime FCC observer and senior VP of Public Knowledge, told Ars.

The FCC's proposal isn't entirely clear on all points. While it specifically proposes eliminating the "functional test" detailed in two previous orders passed in 2014 and 2015, it does not mention a related "adequate replacement test" detailed in a 2016 order.

The adequate replacement test goes into more detail on how carriers seeking permission to discontinue network services have to prove that replacement services offer equivalent network performance, service availability, and geographic coverage.

Pai's office told us that the adequate replacement test is not addressed in the new proposal. It is "neither discussed nor eliminated. It is still in the rules," a spokesperson said.

But by eliminating the functional test, the proposal makes it easier for carriers to avoid the review process in which the adequate replacement test is applied.

"That functional test was intended to determine when a carrier has to go through the discontinuance process," an FCC spokesperson told Ars.

With the functional test being eliminated, Pai's proposal says that "a carrier's description in its tariff—or customer service agreement in the absence of a tariff" will be considered "dispositive." Because the simple listing of services available will be enough to let carriers avoid the full review process, carriers won't have to pass that "adequate replacement test" when retiring copper networks.

"It's like, 'we're not going to repeal it, we're just going to make it so you never have to do it,'" Feld said.

Letting networks decay through neglect

We asked Pai's office if this means that carriers will be allowed to replace landline phone and Internet services with mobile service. Ars did not receive an answer. Pai's office did say that when carriers discontinue service, they are "obligated to provide access to 911 and access to people with disabilities."

The draft order is "extremely dodgy about what it is actually requiring, under what circumstances carriers will have to file, and what precisely they now have to show if they're terminating" copper service in any particular geographic area, Feld said.

Pai's proposal could also make it easier for carriers to let copper networks decay without making repairs or upgrades. The FCC in 2015 defined "retirement" of copper networks to include cases in which carriers simply let the networks deteriorate via neglect. The new FCC proposal eliminates this de facto copper retirement concept, freeing carriers of obligations in cases when they let networks deteriorate.

Carriers will be "free to let the copper rot," Feld said. "That is unrelated to the functional test/adequate replacement test but is simply one more way people are going to be screwed by this."

Pai's proposal would also result in customers being given less time to prepare for copper service discontinuations by reducing a waiting period from 180 days to 90 days. The proposal would also eliminate the requirement that carriers provide direct notice to retail customers before shutting off copper networks; instead, carriers would only have to provide direct notice to "telephone exchange service providers that directly interconnect" with the incumbent's network.

What happened on Fire Island

When Hurricane Sandy wiped out the communications infrastructure on New York's Fire Island in 2012, Verizon's solution was to end wireline telephone service altogether. Verizon intended to replace the landlines with Voice Link, a phone service that used Verizon's cellular network.

People complained that Voice Link wouldn't replace DSL Internet and wouldn't work with fax machines, heart monitors, or payment systems used by small businesses. Verizon only relented when faced with protests from residents and government officials, finally agreeing to replace the copper landlines with fiber.

The Fire Island incident played a role in the FCC's subsequent rulemakings that created the functional test and other requirements. In its 2014 rulemaking, the FCC said that Verizon's attempt to abandon wireline networks on Fire Island "foreshadowed issues with which the commission will have to contend as carriers reach a point at which they will rationally seek to retire network facilities and discontinue TDM [time-division multiplexing] services on a wide-scale basis across the nation."

But now that the FCC is controlled by Republicans, the majority wants to eliminate post-Fire Island consumer protections imposed by the previous Democratic majority.

Existing rules are just “impracticable”

Pai's proposal argues that the functional test is "impermissibly vague" and created "unnecessary confusion." Rejecting the functional test "will provide greater clarity to carriers and customers alike and will facilitate greater investment in next-generation services and infrastructure," the proposal says.

Pai's proposal relies on filings made by carriers to bolster his argument that the functional test "resulted in unnecessary and costly filings" and "can also delay network upgrades." The proposal dismissed the Communications Workers of America argument that the functional test doesn't create uncertainty, saying the union's argument is "directly contradicted by the comments of many carriers."

Because "carriers cannot know all of the myriad ways in which their services are used by customers," it would be "impracticable" to require that a replacement network offer all the same functionality, Pai's proposal said.

While carriers pushed the FCC to make the discontinuation process easier, the Pennsylvania Public Utility Commission objected to changing or eliminating the functional test. The Pennsylvania commission said:

Replacing copper with fiber or wireless potentially alters the capabilities of circuits. For instance, copper lines—unlike fiber—can deliver power, so voice service works during power outages as long as the customer has a telephone that will work without commercial power and the link with the central office is maintained and can supply direct current. Home-security alarms, fax machines, credit-card readers, medical-alert monitors, and similar devices that may depend on the TDM communications protocol may not optimally function with IP-only networks in the absence of appropriate network control software. Thus, TDM-to-IP transitions can impact functionality.

The National Association of Regulatory Utility Commissioners told the FCC that it should not eliminate requirements that carriers inform state utility commissions about impending copper retirements. The FCC's planned actions could "handicap" the ability of state governments to address problems caused by natural disasters or transitions to new technologies, potentially "impact[ing] the health and safety of consumers," the group said.

The FCC is, at least for now, not repealing a requirement that carriers offer backup batteries to customers in case of power outages that take out non-copper phone lines.

But Feld is frustrated that the other requirements are being repealed after five years of "painstaking negotiations" that led to their adoption under former FCC Chairman Tom Wheeler. After most FCC leadership changes, Feld said, "the incoming FCC has been sensitive to the fact that people need some sort of reasonable and settled expectations, and doing a complete reversal like this gives everybody whiplash and is terribly disruptive."