SBA SAYS FCC MAY HAVE TO LAUNCH SUPPLEMENTAL VoIP RULEMAKING

The FCC’s IP rulemaking is so vague that it’s impossible to provide a regulatory analysis of its impact, according to the U.S. Small Business Administration (SBA). The Dept. of Homeland Security, meanwhile, said the FCC may need to become even more active in regulating IP-enabled services, in comments on the FCC rulemaking (CD June 1 p1). Other commenters questioned the FCC’s authority to regulate IP services at all.

“The proposed rule does not contain concrete proposals and is more akin to an advance notice of proposed rulemaking or a notice of inquiry,” SBA said in its comments to the FCC. Before adopting any specific regulations, the SBA said, the FCC should seek comment on a further notice of proposed rulemaking that provides more details that can be evaluated.

It may require “exceptional government regulatory consideration” to ensure national security and emergency preparedness officials get “priority treatment” during national emergencies in the VoIP world, the Dept. of Homeland Security (DHS) said in its comments. As a result, it said, the FCC shouldn’t close the door on regulating IP. DHS also supported the Justice Dept. and others on extending CALEA requirements to IP.

VoIP isn’t just another way of doing telephony, the Telecom Industry Assn. (TIA) said: “It is a new class of platform-agnostic applications riding new kinds of networks that will create opportunities for businesses and consumers to communicate in new ways.” It said the Communications Act gives the FCC “only limited regulatory authority” over the Internet and IP services, though the interstate nature of IP “translates to federal jurisdiction.” TIA also said FCC decisions on IP will have “a significant impact” on other countries, and since IP doesn’t recognize borders “an overly restrictive regulatory environment in the U.S. also ultimately could be ineffective and counterproductive.”

Only IP-based voice services “have raised any questions that could possibly lead to the need for regulation,” said the Information Technology Industry Council (ITI), adding there’s “some question” whether the FCC has jurisdiction over nonvoice IP. ITI did say the FCC should assert jurisdiction over VoIP but not apply universal service and intercarrier compensation policies.

CEA agreed it’s questionable whether the FCC has jurisdiction over all IP services: “Given the vibrancy of the IP-enabled services marketplace, neither the Commission nor the states should attempt to pull all IP-enabled services into its regulatory construct.” It said VoIP will drive broadband, so VoIP shouldn’t be “hampered” by regulation.

The FCC should separate E-911 from other IP issues, said the Assn. of Public-Safety Communications Officials (APCO). It said it understands the FCC’s desire to resolve all issues at once, but “by the time that the Commission resolves all of the issues in the nearly 100-page NPRM, VoIP will have proliferated without any E-911 requirements.”

The National Assn. of Telecom Officers & Advisors (NATOA) and other city and county organizations said in their comments the Commission should ensure its actions don’t threaten the effectiveness of social policies, such as universal service, CALEA, 911, access to persons with disabilities and consumer protections. They said public safety and homeland security demand that all providers of IP telephony and data services capable of 911 emergency communications be required to use the technology necessary to deliver automatic number and location information to 911 centers for emergency callers on their systems.

Local govts. said the FCC should also take into account other policy considerations not addressed in the rulemaking: (1) The federal govt. should “respect and preserve” the police powers of state and local govts., including rights-of- way management, zoning and cable customer service. (2) Facilities owners that don’t have meaningful competition should be regulated accordingly. (3) Commission action shouldn’t result in undermining local taxing authority. (4) Users of public rights- of-way should pay fair prices for use of public property.

The FCC’s asserting jurisdiction but forbearing from regulation isn’t the answer, they said. The FCC’s forbearance power is limited to telecom carriers and services, so it isn’t a universal principle, they said. Local govts. said they believe any action the Commission takes must be consistent with Telecom Act Titles 2, 3 and 6: “If the Commission is to take any action outside that framework, it must first obtain specific authority from Congress.”

NCTA detailed its plan for a “light” regulatory framework for VoIP providers that would exclude from regulation anything not resembling plain old telephone service (POTS). It outlined the proposal earlier this year (CD Feb 3 p3), suggesting a regulatory scheme focusing on what it calls rights and responsibilities. NCTA said only VoIP services meeting specific criteria should be subject to regulation, and generally IP-enabled services other than voice services should remain unregulated interstate information services. The FCC should adopt a framework with the “utmost urgency,” NCTA said, so providers can make business decisions.

NCTA urged the Commission to establish regulations based on a 4-pronged test. Under NCTA’s criteria, regulation would be limited to services that represent a possible replacement for current telephone services, but not for services like voice-enabled instant messaging and gaming. To quality for “light” regulation, a service would: (1) Use North American Numbering Plan (NANP) resources. (2) Be capable of receiving calls from or terminating calls to the Public Switched Telephone Network (PSTN). (3) Represent a possible replacement for POTS. (4) Use IP transmission between the service provider and customer, including an IP terminal adapter, an IP-based telephone set or both. NCTA said even a service with a voice component that doesn’t satisfy all the first 3 prongs should remain unregulated for now, and only regulations “essential to preserving public health, safety and related concerns should be imposed” on those meeting the test.

The regime NCTA proposed would include the rights to: (1) Interconnect and exchange traffic and control signaling peer to peer with both IP and the public switched telephone network. (2) Obtain telephone numbers, including through number portability, to assign them to VoIP customers and have them published in incumbent providers’ telephone directories and directory assistance databases. (3) Access at “reasonable and nondiscriminatory rates” to the facilities necessary to provide VoIP customers with full E911 services, including interconnection and access to master street address guides. (4) Establish uniform, enforceable and efficient terms for services with customers, though providers would be under no obligation to do so. (5) Establish uniform, enforceable and efficient terms for carrier interconnection, but again without obligation to do so. (6) Be compensated fairly for terminating traffic delivered from other entities in accordance with an industry-wide review of payments for traffic termination and origination that specifically addresses VoIP. (7) Draw from universal service mechanisms for high-cost/rural and low-income support.

Under the NCTA regime, VoIP providers would also have obligations, including to: (1) Contribute to universal service programs. (2) Compensate other network providers for carriage of the VoIP providers’ traffic “under a rational and reformed intercarrier compensation scheme.” (3) Cooperate with law enforcement, including CALEA compliance. (4) Provide consumers access to E911 and collect and remit funding for state or municipal E911 systems. (5) Make services available to disabled consumers and collect funding for state and federal Telecom Relay Service systems.

In other comments: (1) CompTel said the FCC should continue its “hands-off” approach to IP but should preempt state regulation. (2) A joint Rural Carriers filing asked the FCC to ensure IP telephony pays its fair share of public switched network costs. (3) Microsoft said the FCC should “tread lightly” on IP regulation, recognizing the “fundamental distinction” between transmission facilities and applications and services carried over them. (4) Vonage said the FCC should establish 4 separate layers of regulation -- for content, applications, logical network and facilities- based physical networks -- with only the owners of physical networks, not Vonage’s “information service,” subject to universal service and other regulations. (5) Virgin Mobile said exempting VoIP from universal service costs would be discriminatory. (6) Time Warner Telecom disputed SBC claims that there are few barriers to entry into IP services, citing barriers to building competing fiber loops.