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FCC Mulls November VoIP Vote

WASHINGTON -- In the absence of congressional action, Federal Communications Commission (FCC) Chairman Michael Powell has taken over the direction of Voice over IP policy in the Capitol, at least for the time being.

Speaking Tuesday at the Voice over Net (VON) conference in Boston, Powell said he would force a vote at the FCC before the end of the year to declare VoIP an interstate service and preempt state regulation and taxation over the emerging technology.

Today, Jeffrey J. Carlisle, the new chief of the FCC's Wireline Competition Bureau, said a VoIP decision might come as early as the next regularly scheduled FCC meeting on Nov. 9 because of "timing issues."

On Nov. 17, oral arguments are expected to get under way in Minnesota's appeal of a decision last year that ruled the Internet telephone service offered by Vonage was an interstate information service and not subject to Minnesota laws regarding traditional telephone carriers.

"Furthermore, we expect that there will continue to be various state commission decisions that take place through the end of the year in significant jurisdictions," Carlisle said. "It would be nice to get clarity out in the November timeframe so at least the states that are looking at these decisions will have something from us to read about before they make a decision."

Carlisle said the decision to put VoIP on the FCC's November agenda is ultimately up to Powell, but added, "I know a decision has been referred [by staff to the commissioners]. I'll leave it to the chairman's office on whether or not they want to move that [decision] forward."

Carlisle declined to comment about what particular issue the FCC staff has reached a decision. Both Vonage and SBC have petitioned the FCC to declare VoIP an interstate information service. In addition, the FCC is conducting a year-long rulemaking investigation into all IP-enabled services.

"[Vonage] is one of the possible vehicles that we have. Another possible vehicle would be to resolve it generally within the [rule-making process]. That would be a broader decision, obviously, because the commission would be making rules based on the record we've already received in that proceeding," Carlisle said.

At the VON show earlier this week, Powell said the first step is to establish federal jurisdiction over VoIP. Several bills were introduced in Congress this year to accomplish that, but lawmakers have failed to take any action in light of state resistance and a feeling that VoIP issues could be dealt with next year in a reform of telecom laws.

Nevertheless, when the VoIP legislation failed in the 108th Congress, U.S. Rep. Chip Pickering (R-Miss.) and 61 other members of Congress urged the FCC earlier this month to "immediately declare" that the FCC has sole jurisdiction over regulating VoIP services.

"Clearly, VoIP is interstate in nature and thus subject to FCC jurisdiction. This letter asks the FCC to expedite their ruling on the subject and provide jurisdictional and regulatory clarity," Pickering and the other lawmakers wrote to Powell.

Pickering and Sen. John Sununu (R-N.H.) authored unsuccessful legislation calling for VoIP services to be exempt from carrier access charges, state taxes and local regulations. The bills would have prevented the FCC from delegating VoIP regulatory authority to state and local officials.

"VoIP jurisdiction is particularly important because if we don't move forward on that relatively soon, we're running the risk of having multiple conflicting state and federal court decisions ... and then have to make rules on top of that," Carlisle said.

Carlisle also told reporters he favored a narrow approach to what Powell is seeking.

"My feeling is that the narrower decision is easier to move forward than a much broader decision at this particular point of time," he said. "I think decisions on the broader issues raised in the IP-enabled services proceeding in terms of however you classify it and whatever the jurisdiction is and what sort of regulatory regimes actually apply -- that's not going to be something that the commission is really going to be able to address until the first quarter of next year, at the earliest.

"So if you want to move on the jurisdiction issue sooner rather than later," Carlisle added, "doing it on a narrow basis is a reasonable way to go about doing it."

In its year-long VoIP review process, the FCC has already exempted Jeff Pulver's Free World Dialup (FWP) from state regulations because the free calls customers make are routed entirely over the Internet and never interconnect with the public switched telephone network . With a broadband connection, FWD members talk with each other computer-to-computer.

In a preliminary ruling issued in August, the FCC also said Internet telephony should be subject to traditional wiretap laws. The preliminary decision will force VoIP providers to comply with the same law enforcement rules as telephone carriers.

The FCC is also considering VoIP carrier obligations in regards to emergency 911 calling services and any contributions the VoIP industry should make to the Universal Service Fund.

"What the commission does really depends on how broad they want to do this. If they want to be very specific about it and say 'look, for these types of hybrid services which originate on the IP platform and terminate on the PSTN, this is what we believe the jurisdictional answer is,'" Carlisle said. "That's going to be narrower than saying anything over an IP platform -- or any VoIP service however defined in the order -- is going to be interstate. It just all depends on what the commission thinks is appropriate to do."