The Jeff Pulver Blog: Reflections: On the Road to Petition

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February 20, 2004

Reflections: On the Road to Petition

The long and winding road to getting the Free World Dialup / "Pulver" Petition granted was first paved in January, 2003 when I first thought to file a petition on behalf of FWD. Free World Dialup as it is known today launched on November 11, 2002, marking the end of the recent dark ages for the IP Communications Industry.

Looking back, I was inspired to file the petition shortly after reading the PTT Pulse research report by Diawa Securities in London, dated January 10, 2003 (See Issue 49 "VoIPulverized?. I instantly realized that others besides myself understood that FWD had the potential to become a "multinational network", and that there were some in the communications industry who would prefer to see the Free World Dialup network nipped in the bud. I reached this conclusion after enduring a petition filed in the US by America's Carriers Telecommuniction Association (ACTA) in 1996 which requested (a) that the sale and use of Internet telephony software should be banned in the US, and (b) that the makers of such software should be regulated in the same manner as the phone company.

While the ACTA petition never was acted upon (indeed, ACTA as a trade association no longer exists), their petition was a perfect example of what often happens when an industry group feels perceives a threat to its membership. Ironically, it was the advent of the ACTA petition that made me jump into the regulatory advocacy space, leading me to found (with the help of Bruce Jacobs) the VON (Voice on the Net) Coalition in March, 1996 as a platform to fight the ACTA petition.

Naturally, I didn't want history to repeat itself in 2003 so I took the lead and began exploring the idea of launching a preemptive strike against naysayers by filing my own petition with the FCC. Such a petition would provide definitional clarity on the issue once and for all, specifying that end-to-end IP that doesn't touch the Public Switched Telephone Network (PSTN) is neither "telecommunications" nor a "telecommunications service."

After speaking to Bruce Jacobs and Glenn Richards of the law firm ShawPittman LLP, I decided to go forward and to draft the Free World Dialup Petition with their help, describing FWD as a peer-to-peer network that facilitates end-to-end IP communications. Interestingly, the only other recent VoIP petition filed with the FCC was that of AT&T, which dealt with what others consider to be "regulatory arbitrage." It certainly did not take into account the affect of the new ara of broadband connection on communications, in which the endpoints have nothing to do with the PSTN.

On February 5, 2003 pulver.com filed the petition with the FCC on behalf of FWD, asking for a Declaratory Ruling stating that Broadband Internet Telephony that does not touch the PSTN should not be considered either "Telecommunications" or as a "Telecommunications Service" as defined by the Telecom Act of 1996. On February 14, 2003 the FCC put the pulver.com petition out for public comment, giving the public until March 14, 2003 to file their comments. We then had until April 2nd to file replies to those comments. Reading the public comments made it clear that a "digital divide" existed across the broadband communications industry and that there were some organizations that supported the innovation represented by FWD and others that would fight such innovation as long as it made economic sense for them to do so.

A copy of the original petition is available here.

After the formal FCC reply comment period ended, in May, 2003 I began a series of road trips to Washington DC to meet with key people with an interest in the FWD Petition. These people included members of Congress, the Department of Justice / Federal Bureau of Investigation (DOJ/FBI), the FCC, the National Association of Regulatory Utility Commissioners (NARUC), the National Telecommunications and Information Administration (NTIA), The White House, and other "friends."

Towards the end of 2003 it became clear that the FCC would likely take action on the FWD Petition in February 2004. The petition's fate was looking good, in fact, until I learned on January 28, 2004 that the DOJ/FBI had sent a letter to the FCC which stated the following: "this letter confirms that the Department of Justice (DOJ), Federal Bureau of Investigation (FBI) and Drug Enforcement Administration (DEA) will jointly file a petition before the FCC seeking comprehensive rules to implement the Communications Assistance for Law Enforcement Act of 1994 (CALEA). The petition, which we intend to file within the next several weeks, will address a variety of issues including what broadband service providers and service providers should be subject to CALEA, as well as the procedures needed to bring those services and providers into compliance with CALEA."

Back in May of 2003 when the FWD team met with representatives of both the FBI and DOJ, we informed them that FWD would gladly work with the FBI/DOJ to provide access to pertinent information of interest to them. At no time did I ever consider the granting of the FWD Petition to imply that FWD was not subject to cooperating fully with Law Enforcement.

It was in college while earning my BBA in Accounting when I first encountered the rules of Generally Accepted Accounting Principles (GAAP), learning that the rules for GAAP and Tax Accounting can differ. US companies are expected to comply with both GAAP and Tax Accounting at all times and the treatment of an item is routinely different for GAAP and/or Tax purposes. Applying this accounting metaphor, the grant of the FWD Petition should not be a sign, directly or indirectly, that others who follow in the footsteps of FWD are not also subject to working with Law Enforcement. The FWD Petition was addressed specifically to the Communications Act and not to CALEA.

From my perspective, I feel it would be great if our federal law enforcement authorities recognize the need to be reasonable, working productively towards a reconciliation of contending policy objectives. In the end, this is exactly what happened: during the week of February 2nd, the DOJ/FBI and FCC worked out a compromise that gave the FCC the green light to take positive action on the FWD Petition.

During the February 12, 2004 FCC Meeting, in which the Pulver Petition was addressed as Agenda Item Number 4, I stopped counting how many times the name "Pulver" was mentioned in the proceeding. I had attained the status of an "Object Noun", a word that sits at the end of a sentence and waits to receive whatever action the Subject Noun (in this case, the FCC) decides to perform.

I greatly appreciate the opportunity that the FCC gave the IP Communications Industry in granting the FWD Petition, and I strongly support and applaud Chairman Powell's vision of where IP Communication is, where it is going, and the effects it will have on the future of what was once known as the telecommunications industry.

As Voice becomes an application and more services are offered that are separated from access, the scope of what is, was, and will be thought of as communications will continue to change.

The FCC's bold action sends a very loud and strong signal not only to the US states, some of which have their own pending VoIP proceedings, but to many of the US's overseas trading partners who are looking to the US for help in determining the best approach to the various issues that will arise as Voice over Broadband continues to gain acceptance worldwide.

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Posted by jeff on February 20, 2004 12:44 AM | Permalink

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