Draft of S 2281 RS, the "VOIP Regulatory Freedom Act of 2004".
Sponsor: Sen. John Sununu (R-NH).
Date: approved by Senate Commerce Committee on July 22, 2004.
Source: Senate Commerce Committee.

[Report No. 108– ]

To provide a clear and unambiguous structure for the jurisdictional and regulatory treatment for the offering or provision of voice-over-Internet protocol applications, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 5, 2004

Mr. SUNUNU introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

AUGUST ____, 2004

Reported by Mr. MCCAIN, with an amendment in the nature of a substitute [Strike all after the enacting clause and insert the part printed in italic]

A BILL

To provide a clear and unambiguous structure for the jurisdictional and regulatory treatment for the offering or provision of voice-over-Internet-protocol applications, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

(a) SHORT TITLE.---This Act may be referred to as the ‘‘VOIP Regulatory Freedom Act of 2004’’.

SEC. 2. ASSERTION OF FEDERAL JURISDICTION.

(a) IN GENERAL.---Notwithstanding any other provision of law, authority to regulate the offering or provision of a voice-over-Internet-protocol application is reserved solely to the Federal Government.

(b) PROHIBITION OF STATE REGULATION.---No State or political subdivision thereof may enact or enforce any law, rule, regulation, standard, or other provision having the force or effect of law that regulates, or has the effect of regulating, the offering or provision of a VOIP application.

(c) PRESERVATION OF CONSUMER PROTECTION.---Nothing in this Act shall be construed to affect the authority of a State to enact or enforce criminal laws or regulations of general applicability regarding doing business in that State, consumer protection, or unfair or deceptive trade practices.

(d) 911 AND ENHANCED-911 SERVICES JURISDICTION.---Notwithstanding any other provision of law, nothing in this Act limits---

(1) State jurisdiction of 9-1-1 or enhanced 9-1-1 services, including State jurisdiction over connected VOIP applications with respect to 9-1-1 and enhanced 9-1-1 services; or

(2) the ability of State and local governments to require providers of all connected VOIP applications to collect fees to support the provision of 9-1-1 or enhanced 9-1-1 services.

(e) PRESERVATION OF UNIVERSAL SERVICE AND INTERPROVIDER COMPENSATION.---Nothing in this Act shall be construed to exempt providers of a VOIP application from requirements imposed by a State commission on all providers of telecommunications services---

(1) to pay appropriate compensation for the transmission of a VOIP application over the facilities and equipment of another provider; or

(2) to contribute on an equitable and nondiscriminatory basis to the preservation and advancement of universal service.

SEC. 3. NO IMPACT ON TRANSMISSION FACILITIES.

Nothing in this Act shall affect the authority of the Federal Communications Commission or any State to regulate the transmission facilities used to transmit a voice communication of a VOIP application. This section may not be construed to authorize the Federal Communications Commission or any State to regulate the offering or provision of a VOIP application by regulating such transmission facilities.

SEC. 4. 9-1-1 AND ENHANCED 9-1-1 SERVICES.

(a) COMMISSION AUTHORITY.—Not later than 180 days after the date of enactment of this Act, the Commission shall conclude a proceeding establishing a transition period at the end of which all providers of connected VOIP applications are required to provide, to the extent technically feasible and not economically unreasonable, 9-1-1 and enhanced 9-1-1 services comparable to those provided by other telecommunications carriers.

(b) REPORTS TO CONGRESS.---No later than the first day of October each year during the transition period established under subsection (a), the Commission shall transmit a report to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce on the progress of enhanced 9-1-1 implementation for connected VOIP applications. In its report, the Commission shall include summaries of comments it has received from the public regarding the performance of connected VOIP application providers in providing 9-1-1 and enhanced 9-1-1 services and examine issues related to non-discriminatory access between connected VOIP applications and incumbent 911 networks and data systems.

SEC. 5. LAW ENFORCEMENT.

(a) IN GENERAL.—Nothing in this Act shall be construed to modify, impair, or supersede the Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 et seq.) or the authority of the Commission thereunder, nor shall anything in this Act alter the obligation of a provider of a VOIP application to furnish to an authorized law enforcement agency, pursuant to a court order under chapter 119 or 206 of title 18, United States Code (or comparable provisions of State law), or under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), all information, facilities, and technical assistance necessary to accomplish an interception or the installation of a pen register or trap and trace device.

(b) GAO REPORT.---Not later than 6 months after the date of the enactment of this Act, the Comptroller General shall submit a report to the Senate Committee on Commerce, Science, and Transportation, the Senate Committee on the Judiciary, the House of Representatives Committee on Energy and Commerce, and the House of Representatives Committee on the Judiciary that includes---

(1) an assessment of law enforcement’s current technical capability to intercept and analyze communications over the public Internet or using the Internet protocol;

(2) an assessment of problems, if any, law enforcement has encountered in intercepting or analyzing communications over the public Internet or using the Internet protocol;

(3) a description of options for addressing any such problems, including such options as capability requirements or providing additional resources for law enforcement agencies to acquire the skills and equipment to analyze Internet communications;

(4) an evaluation of such options for different configurations of broadband access, connected VOIP service, and VOIP applications in terms of effectiveness, effect on innovation, effect on privacy, and the cost to consumers; and

(5) an assessment of the first 10 years of implementation of the Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 et seq.), including---

(A) an assessment of the level of compliance with that Act within different segments of the communications industry and an identification of the reasons for less-than-full compliance in particular segments of the industry;

(B) a cost-benefit analysis of the impact of that Act on the communications industry, including the costs expended by industry to implement specific capabilities, the frequency of use by law enforcement of those features and the impact on privacy, including the changes, if any, in the nature or frequency of law enforcement’s interception of transactional information; and

(C) an assessment of the degree of representation and involvement of consumer or user organizations in the standards development process.

(c) FCC STUDY.---Not later than 6 months after the date of the enactment of this Act, the Federal Communications Commission shall submit a report to the Committees to which reference is made in subsection (b) that includes an assessment of the first 10 years of implementation of the Communications Assistance for Law Enforcement Act (47 U.S.C. 1001 et seq.) in terms of the technical standards development process as it related to that Act; the impact of that Act’s procedures on the telecommunications industry, on law enforcement, and on privacy; and the Commission’s views as to what the definitions and requirements of that Act would mean if applied to Internet communications.

SEC. 6. EXPIRATION.

This Act shall cease to be effective 3 years after the date of enactment.

SEC. 7. DEFINITIONS.

In this Act:

(1) VOICE-OVER-INTERNET-PROTOCOL APPLICATION; VOIP APPLICATION.—The terms ‘‘voice-over-Internet-protocol application’’ and ‘‘VOIP application’’---

(A) mean the use of software, hardware, or network equipment for real-time 2-way or multidirectional voice communications over the public Internet or a private network utilizing Internet protocol, or any successor protocol, in whole or part, to connect users notwithstanding---

(i) the underlying transmission technology used to transmit the communications;

(ii) whether the packetizing and depacketizing of the communications occurs at the customer premise or network level; or

(iii) the software, hardware, or network equipment used to connect users; but

(B) do not include an application that is used solely for voice communications that both originate and terminate on the public switched telephone network.

(2) CONNECTED VOIP APPLICATION.---The term ‘‘connected VOIP application’’ means a VOIP application that is capable of receiving voice communications from, or sending voice communications to, the public switched telephone network.