Is VOIP Regulation a Done Deal?

David Isenberg thinks
the FCC has already decided how to regulate Internet telephony, based
on some comments from former FCC Chairman Reed Hundt and a letter by
current FCC Chairman Michael Powell.  I’m not convinced.

Not necessarily contracting anything Reed apparently said, but here are a few points:

  • To my knowledge there is no requirement that the FCC hold a
    notice of inquiry proceeding before acting.  The legal requirement
    under the Administrative Procedure Act is “notice and comment,” which
    means an NPRM.  An NOI is customarily done when first examining a
    new area, but plenty of FCC rulemaking proceedings happen without one.

  • I don’t know details of the December 1 meeting, but under the
    Sunshine Act, if three or more FCC Commissioners will be in the room at
    the same time, it has to be a formal, on-the-record, hearing.  The
    alternative is an informal gathering like the WISP event they did, but
    anything with people testifying to the Commission kicks in significant
    requirements.  Powell’s letter says “hearing,” while the FCC news
    release says “Forum”, which suggests there may have been some
    uncertainty about the event.

  • I understand that Jeff Pulver was invited to participate in the
    Dec. 1 event, so it’s not totally excluding the VOIP innovators and
    entrepreneurs.  We’ll have to see who’s on the speaker list when
    it’s released.

I remember when I received the ACTA petition to regulate VOIP back in
1996.  As a matter of course, the FCC puts petitions for
rulemaking on public notice, and we did so in that case.  There
was a huge outcry in the VOIP community that the speed of the public
notice meant the FCC was rushing to regulate.  Well, it has been
seven plus years since then, and five years sine the FCC’s “Stevens
Report” on VOIP.  From the beginning it was clear there was a hard
issue to address about the impact of VOIP on Universal Service. 
What’s nefarious about the FCC finally taking on that issue in a public
proceeding?

As to whether the Commission has already made its mind up about what it
plans to do, that’s a fair question.  The Chairman certainly went
into the media ownership and Triennial Review proceedings with a clear
point of view.  This time I’m not so sure.  Powell made a
point to stop by the FCC’s Technological Advisory Council last month to
ask for help in figuring out what to do about VOIP.  There’s
nothing in his prior record that suggests he’s hell-bent on regulating
the new technology like the old. 

I personally believe the FCC needs to take action on VOIP, in order to
eliminate regulatory uncertainty.  They emphatically should not
impose the litany of traditional telecom regulation, including
universal service obligations, on all forms of VOIP.  The best way
to avoid that happening in the future is for the current Commission to
draw some bright lines, rather than pretend the issue will go
away.