FCC Rules on Pulver's Free World Dialup VOIP Service
February 12, 2004. The Federal Communications Commission (FCC) adopted, but did not release, a Declaratory Ruling (DR) on Pulver.com's petition for declaratory ruling regarding the classification of its Free World Dialup (FWD) service. The FCC issued a press release [PDF] that reveals almost nothing about the content of the DR.
Terri Natoli, of the FCC's Wireline Competiton Bureau's (WCB) Competition Policy Division (CPD), presented this item at the FCC's February 12 meeting. She stated that the DR finds that FWD is "not telecommunications as defined by the Act", that FWD is "not telecommunications service as defined by the Act", and that FWD is "an information service as defined by the Act".
Natoli stated that "This item is one of a number of initiatives currently underway within the Commission to bring the benefits of internet protocol based services to American consumers. The item before you declares Pulver.com's Free World Dialup offering to be an unregulated information information service. In so doing, we formalize the Commission's policy of non-regulation to insure that internet applications, like Free World Dialup, remain free from burdensome economic regulation at both the federal and state levels."
She stated that "Free World Dialup is an internet application. It offers membership in a directory lookup service and enables online consumers anywhere in the world to engage in peer to peer communications when other online Free World Dialup members, similar to instant messaging and e-mail. Free World Dialup members must have broadband internet access and specialized customer premises equipment or software on their PCs. Pulver assigns members a five or six digit identifier number for their use in determining whether other members are online, and if so, at what internet address, or addresses, they can be reached. Free World Dialup also provides voicemail, e-mail responses, conferencing capabilities, and address repair features."
Natoli continued that "The item makes several key findings. First, the item finds that Free World Dialup is not telecommunications as defined by the Act. Pulver neither offers, nor provides, transmission to its members, and the information it conveys is new information -- information such as the online availability of other members, and at what addresses they can be reached."
"Second, the item finds that Free World Dialup is not telecommunications service as defined by the Act. To provide a telecommunications service, an entity must, at a minimum, offer telecommunications for a fee. Free World Dialup is not telecommunications, nor is there a fee to register or use the service. Free World Dialup is free."
"Third, the item finds that Free World Dialup is an information service, as defined by the Act."
"Finally, consistent with the Commission's over 30 old year policy of non-regulation of information services, state attempts to impose economic regulation on Free World Dialup would almost certainly conflict with our national policy, and Congress' expressed preference that the internet and other interactive computers services remain unfettered by federal and state regulation", said Natoli.
Pulver.com filed its petition [11 pages in PDF] with the FCC on February 5, 2003 seeking a ruling that its service is neither "telecommunications" nor a "telecommunications service". This DR is FCC 04-27 in WC Docket No. 03-45.
There are several other pending VOIP related petitions pending before the FCC. See, stories titled "Level 3 Files VOIP Petition With FCC" and "Summary of Other VOIP Proceedings at the FCC" in TLJ Daily E-Mail Alert No. 815, January 14, 2004. However, the FCC did not address these in the DR adopted on February 12.
AT&T has filed one of these. It seeks a ruling that access charges do not apply to its service in which calls originate and terminate on circuit switched PSTN facilities, but are routed on internet backbone. AT&T filed its petition [37 pages PDF] on October 18, 2002. This is WC Docket No. 02-361. On January 29, Rep. Billy Tauzin (R-LA), the outgoing Chairman of the House Commerce Committee, wrote a letter to FCC Chairman Michael Powell, and the other FCC Commissioners, regarding AT&T's petition. See, story titled "Tauzin Asks FCC for Prompt Response on AT&T VOIP Petition" in TLJ Daily E-Mail Alert No. 827, February 2, 2004.
Bill Maher, the WCB Bureau Chief, was asked about the AT&T petition during a press conference following the Commission meeting. He stated that "it is under consideration, very actively".
FCC Chairman Michael Powell wrote in a separate statement [PDF], which he read at the meeting, that "Our ruling formalizes the Commission's policy of ``non-regulation´´ of the Internet and, in so doing, preserves the Internet as a free and open platform for innovation. Just as important, today’s ruling removes barriers to investment and deployment of Internet applications and services by and ensuring that Internet applications remain insulated from unnecessary and harmful economic regulation at both the federal and state levels."
FCC Commissioner Michael Copps wrote in a separate statement [PDF] that "Many persuasive arguments were made as to why Pulver.com’s Free World Dialup (FWD) is not telecommunications or a telecommunications service. I concur that this service is not telecommunications or a telecommunications service and in practice should remain largely unregulated. In particular, the peer-to-peer nature of FWD differs in significant respects from traditional ``telecommunications services´´ that traditional phone companies have offered."
However, Copps added that "I cannot fully join today’s pulver.com Order because it reaches far beyond the petition filed by pulver.com and, regrettably, speaks prematurely to many of the important questions raised in today’s NPRM."
"Despite attempts to characterize this Order as limited to the specific facts of pulver.com's FWD, I am concerned that the decision speaks much more expansively. By deciding the statutory classification of pulver.com's service as an interstate information service, the Order raises a host of questions about the continuing relevance of those most fundamental telecommunications policy objectives that Congress has entrusted to this Commission", said Copps.
See also, Commissioner Kathleen Abernathy's separate statement [PDF]. Commissioner Kevin Martin's separate statement [PDF], and Commissioner Jonathan Adelstein's separate statement [PDF].
In related matters, the FCC adopted a Notice of
Proposed Rulemaking regarding internet enabled services, and FCC members
discussed the DOJ/FBI's forthcoming petition for a rulemaking regarding the
Communications Assistance for Law Enforcement Act (CALEA). TLJ will provide
coverage of these matters in the Monday issue.