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%Ec E\Fv VIA HAND DELIVERY Sandra Squire, Executive Secretary Public Service Commission of West Virginia 201 Brooks Street Charleston, WV 25323

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%Ec E\Fv VIA HAND DELIVERY Sandra Squire, Executive Secretary Public Service Commission of West Virginia 201 Brooks Street Charleston, WV 25323 ATTORNEYS Jared M. Tully Attorney at Law 304.348.2404 December 1,2010 [email protected] Brg:B? pfi DEC @$ 2 20 PSC %Ec E\fV VIA HAND DELIVERY Sandra Squire, Executive Secretary Public Service Commission of West Virginia 201 Brooks Street Charleston, WV 25323 Re: CASE NO. 10-0383-T-C EMERGENCY OPERATIONS CENTER OF KANAWHA COUNTY, V. YMAX COMMUNICATIONS CORPORATION and MAGIC JACK, LP Dear Ms, Squire, Please find enclosed for filing in the above proceeding an original and twelve copies of the direct testimony of Billy Jack Gregg, W. Kent Carper, and Carolyn Karr Charnock on behalf of the Emergency Operations Center of Kanawha County. Copies of the same have been forwarded to parties of record. Thank you for your assistance in this matter. hclosures Terry C. Owen, Esq. Marc Weintraub, Esq. Richard M. Firestone, Esq. E. Dandridge McDonald, Esq. Laidley Tower, Suite 401 I Charleston, West Virginia 25301-3207 I 304.345.0111 I frostbrowntodd.com 500 Lee Street STATE OF WEST VIRGINIA PUBLIC SERVICE COMMISSION CHARLESTON, WEST VIRGINIA EMERGENCY OPERATIONS CENTER OF KANAWHA COUNTY and W. KENT CARPER, in his capacity as President of the EMERGENCY OPERATIONS CENTER OF KANAWHA COUNTY, Executive Committee Complainants, EC 0% 2@2f;psc EXEC Dn V. Case No. 10-0383-T-C YMAX COMMUNICATIONS CORPORATION And MAGIC JACK, LP Defendants. CERTIFICATE OF SERVICE I, Jared M. Tully, hereby certify that a copy of the foregoing Direct Testimony ofBilly Jack Gregg was served via US Mail, postage prepaid the lStday of December, 2010 upon the following parties: Terry C. Owen, Esq. Marc Weintraub, Esq. Legal Division Bailey & Glasser, LLP Public Service Commission of West Virginia 209 Capitol Street 201 Brooks Street Charleston, WV 25301 Charleston, WV 25301 Richard M. Firestone, Esq. E. Dandridge McDonald, Esq. Arnold & Porter, LLP Steptoe & Johnson, PLLC 555 Twelfth Street PO Box 1588 Washington, DC 20004- 1206 Charleston, WV 25326-1588 Jared M. Tully CHRLibrary 0117128.0568243 998237~1 CASE NO. 10-0383-T-C EMERGENCY OPERATIONS CENTER OF KANAWHA COUNTY V. YMAX COMMUNICATIONS CORPORATION AND MAGIC JACK, LP DIRECT TESTIMONY OF W. KENT CARPER On Behalf of the Emergency Operations Center Of Kanawha County Dated: December 1,2010 1 Q. WHAT IS YOURNAME AND BUSINESS ADDRESS? 2 A. My name is W. Kent Carper. My business address is 407 Virginia Street East, Charleston, 3 West Virginia. 4 Q. WHAT IS YOUR EDUCATIONAL AND PROFESSIONAL BACKGROUND? 5 A. I am the president of the Kanawha County Commission and the president of the Board of 6 Directors of the Metro Emergency Operations Center of Kanawha County (hereinafter 7 “Metro”) and a practicing attorney in Charleston, West Virginia. I graduated from West 8 Virginia State College with Honors and I earned my law degree from Ohio Northern 9 University. I have been in public service for 33 years. I am honored to serve as a 10 Kanawha County Commissioner and I am very proud of my time as an assistant 11 prosecutor in Kanawha County, Public Safety DirectorKhief of Police of Charleston and 12 West Virginia Deputy Securities Commissioner. I am also a former certified paramedic. I 13 also have an extensive background in communications, including emergency 14 communications. 15 Q. WHAT IS THE PURPOSE OF YOUR TESTIMONY? 16 A. My testimony is presented to describe the necessity of the county enhanced 911 fee and 17 the need for all subscribers to pay the fee as required by West Virginia law and Kanawha 18 County’s ordinance. Any reduction in our revenue will affect our ability to operate and to 19 serve Kanawha County. Simply put-the failure of any provider to collect and remit fees 20 impacts public safety and the ability of Metro to serve the citizens of Kanawha County. 21 Q. ARE YOU FAMILIAR WITH THIS PROCEEDING? 22 A. Absolutely. I sought this proceeding because Magic Jack and YMAX Communications 23 (hereinafter “YMAX”) are providing VoIP andor local exchange service in Kanawha 1 County and failing to collect and remit enhanced 91 1 fees. This results in lower revenues 2 for Metro and directly impacts the ability to fund vital communication services. 3 Additionally, Magic Jack and YMAX are gaining an unfair advantage over every other 4 provider of telephone or telephone type service because it is able to offer its service at a 5 rate that is lower than that of the other providers in part because it refuses to collect the 6 enhanced 91 1 fee from its subscribers. Unfair advantages will not, in the long run, benefit 7 Kanawha County. However, my concern in this proceeding is that Magic Jack and 8 YMAX, a regulated competitive local exchange carrier, are trying to manipulate the 9 system to avoid paying enhanced 91 1 fees that are vital to adequately fund 91 1 services. 10 Moreover, failing to pursue those who refuse to comply with 911 rules, regulations and 11 statutes creates a dangerous precedent and I have a duty to assure that enhanced 91 1 is 12 properly funded. 13 Q. WHAT DOES THE PUBLIC SERVICE COMMISSION REQUIRE OF VoIP 14 PROVIDERS? 15 A. The Commission requires interconnected VoIP providers to collect and remit the county 16 enhanced 911 fee as detailed in the Code of State Rules Section 150 Series 32. These 17 rules were effective November 19, 2008. They require providers of VoIP service to 18 collect and remit enhanced 91 1 fees. Additionally, and very interestingly, these rules also 19 provide for waiver of the rules in certain instances if a VoIP provider can show good 20 cause as to why it cannot meet *se requirements. The rules actually permit a VoIP 21 provider to propose a reasonable alternative to collect and remit fees. Magic Jack and 22 YMAX did not seek waivers and have not collected and remitted enhanced 91 1 fees. 23 Q. WHAT DOES STATE LAW PROVIDE FOR VoIP SERVICE? 2 1 A. West Virginia Code 5 7-1-3cc provides that a county commission may impose a fee upon 2 customers of local exchange service within that county for an enhanced emergency 3 telephone system. On July 1, 2006 the statute because effective for subscribers of VoIP 4 service too, assuming that the county had an enhanced 91 1 fee ordinance in place at the 5 time, which Kanawha County did. 6 Q* WHAT DOES FEDERAL LAW PROVIDE REGARDING VoIP AND 91 1 FEES? 7 A. The New and Emerging Technologies 911 Improvement Act of 2008, or the NET 911 8 Improvement Act specifically precludes any FCC regulation from preventing the 9 imposition and collection of a fee or charge for the support or implementation of 91 1 or 10 enhanced 91 1 services, provided that the fee is used solely to support 91 1 and/or 11 enhanced 91 1. The county enhanced 9 1 1 fee is specifically reserved for the support of 12 enhanced 911. West Virginia Code $ 7-1-3cc states that the “fee revenues may only be 13 used solely and directly for the capital, installation, administration, operation and 14 maintenance costs of the enhanced emergency telephone system and of the conversion to 15 city-type addressing and including the’ reasonable costs associated with establishing, 16 equipping, furnishing, operating or maintaining a county answering point.” 17 Q. WHAT IS YOUR UNDERSTANDING OF HOW MAGIC JACK AND/OR YMAX 18 OPERATE? 19 A. Based upon my review of the pleadings in this case, it appears that they have concocted a 20 plan for YMAX to offer separate services for incoming and outgoing calls. As I 2.1 understand it Magic Jack and YMAX argue that they are not “interconnected VoIP 22 providers” as required by our rules. They rely, it appears, upon the portion of the Federal 23 &nmunication Commission definition of interconnected VoIP which states that the 3 1 service must permit “users generally to receive calls that originate on the public switched 2 telephone network and to terminate calls to the public switched telephone network.” As I 3 understand it this means that the subscriber to the VoIP service must be able to call a 4 standard landline and to receive calls from a standard landline. When you purchase the 5 Magic Jack device and subscribe to the YMAX service, you are able to do this. Both 6 Magic Jack and YMAX operate as a single entity and offer citizens of Kanawha County 7 the ability, via VoIP telephony to send calls to the Public Switched Telephone Network 8 (“PSTN”) and to receive calls from the PSTN. Their attempts to avoid the sole area in 9 which they are regulated by the FCC are, in my evaluation, ineffective and a threat to 10 public safety. These entities operate from the same location, are run by the same people 11 and even share the same phone number! 12 Q. HAS YMAX BEEN COLLECTING AND REMITTING ENHANCED 91 1 FEES? 13 A. No. In fact, they take the position that they do not need to collect and remit fees. This is 14 particularly interesting given that YMAX is, in fact, a competitive local exchange carrier 15 with an interconnection agreement with Verizon, now Frontier. Clearly, this falls within 16 the class of individuals who are required to collect and remit fees. Additonally, YMAX is 17 a tariffed CLEC. The Public Service Commission, in Case No.: 06-1363-T-PC approved 18 an interconnection agreement with YMAX and Verizon (Please see Exhibits A and B 19 attached hereto). That approved agreement states that YMAX is a competitive local 20 exchange carrier. As such, it is subject to our fee ordinance.
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