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June 6, 2005, 9:00 AM ET, Alert No. 1,148.
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FCC Releases VOIP E911 Order

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) enabled services.

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, Paragraph 1.)

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 services.

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 telephone network."

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 other devices.

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 broadcast flag 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, story 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, story 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 Public Law 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 consistency.

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.

Supreme Court News
6/6. The Supreme Court issued three opinions. However, it has yet to issue opinions in the important technology related cases: MGM v. Grokster (regarding copyright and P2P systems), NCTA v. Brand X (regarding regulation of broadband internet services), and/or Merck v. Integra (regarding a research exemption to patent infringement).

The Supreme Court did issue its opinion [79 pages in PDF] in Ashcroft v. Raich, Sup. Ct. No. 03-1454, a case regarding the authority of Congress to enact criminal statutes based upon the Commerce Clause. The Court upheld a section of the Controlled Substances Act as a valid exercise of federal power.

This case pertains to rnarijuana. However, the analysis of the Court may also be pertinent to constitutional challenges to certain federal technology related criminal statutes.

Washington Tech Calendar
New items are highlighted in red.
Monday, June 6

The House will not meet. See, Republican Whip Notice.

The Senate will return from its Memorial Day recess. See, Senate calendar.

The Supreme Court will meet. It is possible that it will issue opinions in MGM v. Grokster (regarding copyright and P2P systems), NCTA v. Brand X (regarding regulation of broadband internet services), and/or Merck v. Integra (regarding a research exemption to patent infringement).

TIME? The U.S. District Court (DC) will hold a status conference in U.S. v. Microsoft, D.C. No. 98-1232 (CKK). Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sandisk v. Memorex, a patent infringement case involving flash memory technology. This is App. Ct. No. 04-1422. It is an appeal from the U.S. District Court (NDCal). Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 203.

SOLD OUT. 12:00 NOON. The Federal Communications Bar Association's (FCBA) will hold an event titled "Annual Meeting and Luncheon". The speaker will be Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee. See, registration form [MS Word]. Prices range from $35-$65. Location: Capital Hilton, Congressional Ballroom, 16th and K Streets, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [15 pages in PDF] regarding implementation of the satellite broadcast carriage requirements in the noncontiguous states, as required by Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). The FCC adopted this NPRM at its April 29, 2005 meeting. This NPRM is FCC 05-92 in MB Docket No. 05-181. See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Pages 29252-29253.

Tuesday, June 7

The House will meet at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

8:00 AM. The U.S. Chamber of Commerce will host a breakfast. The speaker will be Rep. Bill Thomas (R-CA), the Chairman of the House Ways & Means Committee. The price to attend ranges from free to $55. See, notice. Location: US Chamber, 1615 H Street, NW.

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will meet. The agenda includes updates on encryption controls, AES, and the proposed rule on deemed export related regulatory requirements. See, notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Page 29478. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in International Rectifier Corp. v. Samsung. This is App. Ct. No. 04-1429. This is an appeal from the U.S. District Court (CDCal) in a patent case. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Current Intellectual Property Issues in Europe". The speakers will be Alexander Leisten, Peter Ruess, and Barbara Berschler. The price to attend ranges from $10-$30. For more information, contact 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:30 PM. The Senate Foreign Relations Committee's Subcommittee on East Asian and Pacific Affairs will hold a hearing titled "The Emergence of China Throughout Asia: Security and Economic Consequences for the U.S." See, notice. Location: Room 419, Dirksen Building.

Wednesday, June 8

The House will meet at 10:00 AM for legislative business. The House may consider HJRes 27, a resolution pertaining to the World Trade Organization (WTO), and/or HR 2475, the Intelligence Authorization Act for FY 2006. See, Republican Whip Notice.

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:30 AM. The Senate Commerce Committee's Subcommittee on Technology, Innovation, and Competitiveness will hold a hearing titled "Manufacturing Competitiveness in a High-Tech Era". See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee will hold a hearing titled "Reauthorization of the USA PATRIOT Act". The hearing will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

RESCHEDULED FOR SEPTEMBER 8. 3:00 - 5:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 1 (Terrestrial and Space Science Services) will meet. See, notice [PDF]. Location: Lockheed Martin, 1550 Crystal Drive, Suite 300, Arlington, VA. See, FCC's June 3 notice [PDF].

Thursday, June 9

The House will meet at 10:00 AM for legislative business. The House may consider HJRes 27, a resolution pertaining to the World Trade Organization (WTO), and/or HR 2475, the Intelligence Authorization Act for FY 2006. See, Republican Whip Notice.

8:30 AM - 12:00 NOON. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:00 AM. The House Judiciary Committee's Subcommittee on Courts the Internet and Intellectual Property will hold a hearing titled "H.R. __, "The Patent Act of 2005". The hearing will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee (SJC) has scheduled an executive business meeting. The SJC frequently cancels meetings without notice. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 224, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Broadcast Innovation v. Charter Communications. This is App. Ct. No. 05-1008. It is a patent infringement case appealed from the U.S. District Court (DColo). Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 203.

RESCHEDULED FOR JULY 21. 12:15 PM - 2:00 PM. The Forum on Technology will host a luncheon panel discussion titled "Basic Research - The Foundation of the Innovation Economy". See, notice. Location: Room 902, Hart Building, Capitol Hill.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "2nd Annual Spring Reception with FCC Commissioners and Legal Advisors". The price to attend ranges from $30 to $60. The FCBA requests an RSVP. See, registration form [PDF]. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

The Federal Trade Commission (FTC), American Intellectual Property Law Association (AIPLA), and National Academies' Board on Science, Technology, and Economic Policy (STEP) will jointly host a public meeting on patent reform. See, FTC notice. See also, story titled "FTC, AIPLA, and National Academies to Host Series of Public Meetings on Patent Reform" in TLJ Daily E-Mail Alert No. 1,043, December 23, 2004.

Friday, June 10

The House may meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will hold a meeting. See, FCC notice [PDF] and notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages 31469 - 31470. Location: Commission Meeting Room (TW-C305), 445 12th Street, SW.

People and Appointments

6/3. Federal Communications Commission (FCC) Chairman Kevin Martin announced his intent to appoint Donna Gregg to be Chief of the FCC's Media Bureau, Roy Stewart to be Senior Deputy Chief of the Media Bureau, and Deborah Klein to be Deputy Chief of the Media Bureau. See, FCC release [PDF]. Gregg currently works for the Corporation for Public Broadcasting (CPB). Before that, she was a partner in the Washington DC law firm of Wiley Rein & Fielding (WRF). Martin also previously worked at WRF. Stewart is an oddity at the FCC. While most senior officials work at the FCC for only short periods of time, Stewart has worked at the FCC for forty years. Klein is currently the acting Chief of the Media Bureau. She has worked at the FCC since 1994.

6/3. David Stone announced his resignation as Assistant Secretary of Homeland Security, in charge of the Transportation Security Administration (TSA). Secretary Michael Chertoff praised his work. See, DHS release.

6/3. Trey Hodgkins was named director of defense programs at the Information Technology Association of America (ITAA). See, ITAA release.

5/31. Verisign named Louis Simpson to its Board of Directors. Sampson is also P/CEO of GEICO Corporation's Capital Operations. See, Verisign release.

6/2. Comcast elected directors at its annual meeting in Philadelphia, Pennsylvania. All twelve board nominees were elected. See, Comcast release.

More News

6/2. Sun Microsystems and Storage Technology announced that they "entered into a definitive agreement under which Sun will acquire StorageTek." The transaction requires regulatory approval. See, Sun release.

6/2. CompTel/ALTS released a updated version of its report [PDF] titled "Regulatory Scorecard". It compares the "relative effectiveness of the regulatory frameworks for electronic communications" in the U.S. Belgium, Denmark, France, Germany, Ireland, Italy, the Netherlands, Spain, Sweden and the United Kingdom. It concludes that the U.S. regulatory regime scores lower than those of all of the European nations in the study, except those of Belgium and Germany. Earl Comstock, CEO of CompTel/ALTS, stated in a release that "For the past several years, the FCC has failed to adopt regulations that properly implement the network access provisions of the 1996 Act ... Congress created a regulatory framework so that businesses and consumers would have lower prices and more choices for broadband services. This report illustrates that the FCC has the authority to fix the problem of broadband penetration if it wants to. This report also demonstrates that U.S. regulators -- in their zeal to appear ``deregulatory´´ -- have closed networks to competition and denied consumers the benefits of the 1996 Act. As a result, the U.S. continues to fall further behind the broadband penetration levels of countries that maintain consistently enforced regulatory regimes that guarantee network access at nondiscriminatory rates."

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