6/3. The Federal Communications Commission
(FCC) released the
text [90 pages in PDF] of its First Report and Order and Notice of Proposed
Rulemaking in its proceeding regarding the regulation of internet protocol (IP)
The FCC adopted, but did not release, this order and NPRM at its meeting of
May 19, 2005. The order portion of this item extends 911/E911 regulation to interconnected
voice over internet protocol (VOIP) service providers. The order states that it
requires compliance within 120 days of the effective date.
This item begins with the statement, "we
require providers of interconnected VoIP service to provide E911 services to all
of their customers as a standard feature of the service, rather than as an
optional enhancement. We further require them to provide E911 from wherever the
customer is using the service, whether at home or away from home." (See,
This item states that "We make no
findings today regarding whether a VoIP service that is interconnected with the
PSTN should be classified as a telecommunications service or an information
service under the Act." (See, Paragraph 24.) However, this order begins a
piecemeal application of telecommunications regulations to internet protocol
Then, having applied one category of common carrier regulation (911) to
interconnected VOIP service providers in its order, the NPRM portion of this item
asks about applying other types of common carrier
regulation to these service providers. The NPRM asks what disability access
requirements should be imposed upon interconnected VOIP service providers. (See,
Paragraph 63.) The NPRM also asks about what privacy requirements should be
applied to interconnected VOIP service providers. (See, Paragraph 62.)
This proceeding is titled "In the Matter of IP-Enabled Services" and numbered
WC Docket No. 04-36. This order and NPRM also assigns a second proceeding title, "E911
Requirements for IP-Enabled Service Providers",
and a second number, WC Docket No. 05-196. This item is numbered FCC 05-116. The 2004 NPRM
is numbered FCC 04-28.
Interconnected VOIP Services. The order creates a new Part 9 of the
FCC's rules, titled "Interconnected Voice Over Internet Protocol Services". The
FCC already has 911 rules, in Part 64, regarding "Miscellaneous Rules Relating
to Common Carriers". Also, the FCC has rules pertaining to numbering, at Part
52. The FCC order does not place the new rules in either of these locations.
Rather, the FCC order creates within the FCC's rules a new category, not tied to
any of the existing statutory categories. It also creates a location for placing
yet to be adopted rules affecting this new regulatory category.
That is, the Communications Act contains several regulatory categories. The
FCC's rules are divided into parts, many of which apply to one of the statutory
categories. Now, by this order, the FCC defines a category, interconnected VOIP
service providers, which it does not identify as belonging to any statutory
category, and assigns it an entirely new part within its rules.
The rules contained in the order define an interconnected VOIP service as "a
service that: (1) enables real-time, two-way voice communications; (2) requires a broadband
connection from the user’s location; (3) requires Internet protocol-compatible customer
premises equipment (CPE); and (4) permits users generally to receive calls that originate
on the public switched telephone network and to terminate calls to the public switched
The order also states that "We
tentatively conclude that a provider of a VoIP service offering that permits
users generally to receive calls that originate on the PSTN and separately makes
available a different offering that permits users generally to terminate calls
to the PSTN should be subject to the rules we adopt in today’s Order if a user
can combine those separate offerings or can use them simultaneously or in immediate
succession." (See, Paragraph 58.) However, the rules do not address this.
And notably, the rules adopted in this item do not define the term VOIP.
Jeff Pulver's Comments on Separate Services. VOIP pioneer
Jeff Pulver commented in his web site on
June 5 about the FCC's tentative conclusion regarding separate service
offerings, and the SkypeIn
and SkypeOut services.
He wrote that "It is my hope that the FCC's E911 rules for Interconnected
VoIP providers do not extend to services that no user would expect to offer
localized emergency response capabilities, such as a circumstance where a
computer has both SkypeIn and SkypeOut downloaded. (Should the Asian tourist in
America with SkypeIn and SkypeOut on her computer be precluded from using these
worthwhile applications?) Frankly, we had been led to believe by the FCC that
the rules currently would not apply to such combinations." (Parentheses in
original.) He added that "During our ex parte meetings with the FCC, we got every
indication that, at least for now, such combinations were not the intend target
of the FCC VoIP E911 Order."
He continued that "If the Order is construed as applying to a circumstance
where a computer has both SkypeIn and SkypeOut software, there might be some
rather bizarre consequences. First of all, the FCC will have essentially
compelled every Internet voice application provider to offer only inbound or
outbound voice applications, but not both (or set up a convoluted corporate or
partnering arrangement such that no single entity offers both inbound and
outbound voice applications)." (Parentheses in original.)
He concluded, "I fear that this interpretation might relegate America to a VoIP
ghetto, where anyone wishing to use both an inbound and outbound voice
application on her computer had better not step foot in America. Should Skype
consider turning off either its inbound or outbound service in America? Who
could gain from such an amputation?"
Mandates for Interconnected VOIP Service Providers. The rules
contained in the order provide that "Interconnected VoIP service
providers must, as a condition of providing service to a consumer, provide that
consumer with E911 service ..." The rules also require that "Interconnected VoIP
service providers must transmit all 911 calls, as well as ANI and the caller’s
Registered Location for each call, to the PSAP, designated statewide default
answering point, or appropriate local emergency authority that serves the
caller’s Registered Location and that has been designated for telecommunications
carriers pursuant to section 64.3001 of this chapter, provided that ``all 911
calls´´ is defined as ``any voice communication initiated by an interconnected VoIP user dialing 911´´.
(ANI is Automatic Number Identification. PSAP is Public Safety Answering Point.)
Further, the rules require that "All 911 calls must be routed through the use
of ANI and, if necessary, pseudo-ANI, via the dedicated Wireline E911 Network; and ...
The Registered Location must be available to the appropriate PSAP, designated statewide
default answering point, or appropriate local emergency authority from or through the
appropriate automatic location information (ALI) database."
Currently, not all PSAPs can process E911 calls. Hence, the rules add that "if
a PSAP, designated statewide default answering point, or appropriate local emergency
authority is not capable of receiving and processing either ANI or location information,
an interconnected VoIP service provider need not provide such ANI or location information;
The rules also impose customer location mandates. The rules provide that
interconnected VOIP service providers must "(1) Obtain from each customer, prior to
the initiation of service, the physical location at which the service will first be
utilized; and (2) Provide their end users one or more methods of updating their Registered
Location, including at least one option that requires use only of the CPE necessary to access
the interconnected VoIP service. Any method utilized must allow an end user to update the
Registered Location at will and in a timely manner."
The new rules also provide that interconnected VOIP service providers must
notify "every subscriber, both new and existing, prominently and in plain
language, of the circumstances under which E911 service may not be available
through the interconnected VoIP service or may be in some way limited by
comparison to traditional E911 service."
The rules also provided that "All interconnected VoIP providers must submit a
letter to the Commission detailing their compliance with this section no later
than" 120 after the effective date of these new rules.
NPRM. This item also includes a NPRM. (It is not designated a further or
second NPRM, even though the FCC commenced this proceeding on February 12, 2004, by adopting
a Notice of
Proposed Rulemaking [97 pages in PDF].)
This item begins by stating that the FCC intends a "future order"
addressing, among other things, location information.
First, the NPRM notes that "there is no way for portable VoIP providers
reliably and automatically to provide location information to PSAPs for these
services without the customer’s active cooperation". Hence, it asks, how can the
FCC mandate that service providers provide location information, in a manner
that does "not depend on a customer providing his or her location information"?
The NPRM suggests that the FCC is considering mandatory registration of all
wireless access points, mandatory registration of all access jacks, various
methods of signal triangulation, and mandating GPS systems.
Some of the potential technologies for obtaining location information would
entail requiring equipment manufacturers to redesign their products. Hence, the
NPRM further asks what statutory authority the FCC has to require consumer
electronics manufacturers to incorporation location technology into PCs and
The NPRM asks if the FCC should broaden the scope of these rules to other
providers of VOIP services.
The NPRM asks "How should the use of wireless broadband connections such as
Wi-Fi or WiMax impact the applicability of the obligations we adopt today? Would
providers of wireless interconnected VoIP service be more appropriately subject
to our existing 911/E911 rules for CMRS?"
The NPRM asks about expanding the reporting requirements for interconnected
VOIP service providers.
The NPRM asks what role state regulators should play in regulating
interconnected VOIP service providers.
Statutory Authority. This item also contains a statement of the asserted
statutory authority. It asserts that "we have authority under Title I of the Act
to impose E911 requirements on interconnected VoIP providers". It also asserts that
"we have authority to adopt these rules under our plenary numbering authority pursuant
to section 251(e) of the Act".
This item also states that the FCC "in no way prejudges how the Commission might
ultimately classify these services. To the extent that the Commission later finds these
services to be telecommunications services, the Commission would have additional authority
under Title II to adopt these rules."
This section is atypically long. It is six pages, and includes 33
footnotes. It resembles a brief in opposition to a petition for review. It also resembles the statutory authority section of the FCC's
Report and Order and Further Notice of Proposed Rulemaking [72 pages in
PDF], which the FCC adopted and released on November 4, 2003. Both rely on Title
I of the Communications Act. Both rely on many of the same cases. Indeed, some
of the language in the two items is identical. See also,
titled "FCC Releases Broadcast Flag Rule", also published in
TLJ Daily E-Mail
Alert No. 772, November 5, 2003.
On May 6, 2005, the U.S.Court of
Appeals (DCCir) issued its
opinion [34 pages in PDF] in American Library Association v. FCC,
overturning the FCC's broadcast flag rules. It held that the FCC did not have
authority under Title I to promulgate the broadcast flag rules. See also,
titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail
Alert No. 1,131, May 9, 2005.
Another section of this item states that it is the "view" of the FCC
"that while a provider of VoIP service enjoys the opportunity" to provide new
services, "that opportunity brings with it the responsibility to ensure that public
safety is protected." The order cites no authority for this proposition.
Immunity. There is nothing in the new rules extending any immunity to
interconnected VOIP service providers.
Section 4 of the Wireless Communications
and Public Safety Act of 1999 enumerates several grants of protection from liability for
various entities, including communications carriers. Section 4 is codified at
47 U.S.C. § 615a.
VOIP providers argued in comments filed with the FCC in this proceeding,
essentially, that if they are to be subjected to the regulatory regime imposed upon
communications carriers, then they should also enjoy the associated limitations of
liability extended to communications carriers.
The 1999 Act is
No. 106-81. Various provisions of the Act are now codified in various
sections of the U.S. Code, including
47 U.S.C. § 222,
47 U.S.C. §251(e),
47 U.S.C. § 615, and
47 U.S.C. § 615a. This Act was S 800,
sponsored by Sen. Conrad Burns (R-MT).
The FCC wrote in its order and NPRM that "We decline to exempt providers of
interconnected VoIP service from liability under state law related to their E911
services." It stated its reason: "Congress has enacted no similar protection for
providers of interconnected VoIP service."
But then, the Congress has enacted no statutory grant of authority to impose 911/E911
obligations on any entities other than common carriers. This order lacks
Regulatory Flexibility Act of 1980. There are VOIP service providers
that are small businesses that may be economically harmed, if not driven out of
business, by the rules contained in this item. This item contains the required
Regulatory Flexibility Act (RFA) analysis.
It states that "it is reasonable to expect any business electing to
interconnect with the PSTN to the extent required to provide interconnected VoIP
service also to provide E911 service in order to protect the public interest".
Moreover, the FCC reasons that these rules do not burden small businesses,
because small businesses do not have to provide interconnected VOIP services. Thus, it
concludes, "We therefore have provided alternatives for small entities."
It adds that the order has "minimized the burdens of this regulation by not
mandating any particular technical solution".
Permit But Disclose. This proceeding is permit but disclose proceeding
within the meaning of the FCC's ex parte rules, which are codified at 47 C.F.R.
§ 1.200 et seq.