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July 24, 2006
A Little Rant on the Ongoing Mis-application of CALEA and E911 and Universal Service on Voice Applications and Some Ironic, Illogical Results:
CALEA:
On Friday, pulver.com
joined the Center for Democracy and Technology, the American Library
Association, the American Civil Liberties Union, the Electronic Frontier
Foundation and the Media Access Project, in seeking en banc review of the DC
Circuit’s ruling upholding the FCC’s Order extending CALEA
obligations to VoIP and broadband Internet access services. Particular kudos to John Morris of CDT
for taking much of the intellectual lead in our effort to get the law right.
We thought it was
particularly important to argue to the court that VoIP really is simply just
one of many applications that ride on telecom transmission media. VoIP has never been legally designated
or construed as a telecom service, and it seems disingenuous and illogical that
the historic telecom regulations are being extended to VoIP applications while
they are simultaneously being removed from telecom transmission services. The ever-growing litany of FCC Orders
over the past year (from Brand X to the Wireline Broadband Order, to the
elimination of the Computer Inquiry rules, to the E911 for VoIP Order, to the
CALEA for VoIP Order, to the USF for VoIP Order, to the Calling Card Order),
reveals a remarkable flip-flop in the regulatory structure governing the
Internet and communications. In the
process the FCC has redefined most telecom services as information services
free of telecom regulation, BUT has used its ancillary jurisdiction to impose
telecom regulation on SOME of those “information services” –
the unaffiliated, but interconnected, VoIP applications.
Frankly, I do fear that, if push came to shove, the FCC
might ultimately determine that the telecom transmission facilities are
“Information Service” and the applications that ride those services
are “Telecom Services” (unless, ironically, if that application is
being delivered by a traditional telecom carrier in conjunction with its broadband
Internet access services). I know
this all seems a bit complicated, convoluted and difficult to digest, but, hey,
I didn’t write the contradictory rules. I am just trying to interpret them. Good luck to anyone else who tries.
I have some concerns
that we might be pushing the FCC to define, officially and once-and-for-all,
the voice application as the “Telecom Service” as it grapples to
maintain some authority over communications in an Internet-enabled world in
which it has already gone down the path of deregulating the telecom
transmission services. It would
indeed be strange if, by application of Brand X, a voice application bundled
with a telecom transmission service is an unregulated “Information
Service” while a voice application not bundled with a telecom
transmission service (because it is offered by an unaffiliated application
provider), is miraculously converted into the regulated “Telecom
Service.” But that is the
path down which we are heading, and by challenging the FCC logic, we might be
pushing it to make that ultimate conclusion that will lead to broader
regulation of all Internet applications, not just voice. I also have grave concerns that a
victory in the Court will only drive Congress to pass legislation broadening
the scope of the CALEA statute to explicitly include Internet-delivered voice
applications (and perhaps other Internet applications).
In any event, I am, at
least for the moment, pleased that we have raised more aggressively the
argument that THERE IS NO FOUNDATION TO CONCLUDE THAT CALEA SHOULD BE EXTENDED
TO REACH VOIP SERVICES:
“In
2004 [in the pulver Order], the FCC
declared (for purposes of the Communications Act, not CALEA, but using the very
similar definition of information services that appears in both Acts) that
peer-to-peer Voice-over-Internet-Protocol (VoIP) was an information service.18
In the CALEA context, however, the FCC has flatly refused to state – one
way or another – whether any VoIP is or is not an information
service. As detailed above, information services are excluded from CALEA (even
if such services could be covered under the SRP), and thus the FCC simply
cannot extend CALEA to “interconnected” VoIP without deciding
whether it is an information service. At a bare minimum, this Court must vacate
the FCC’s extension of CALEA to VoIP and remand this matter to the agency
for a determination of this critical question. Although the undersigned believe
that VoIP is an information service, this FCC has not made that determination
in the first instance, and thus its extension of CALEA to any VoIP cannot stand
on this record.
“This
need for the FCC to clearly explain its treatment of VoIP is even stronger when
viewed in light of CALEA’s own definition of “electronic
messaging service” in § 1001(4), a definition that is specifically
incorporated in CALEA’s definition of information services that are
excluded from the statute. In § 1001(4), CALEA defines “electronic
messaging service” to mean “software-based services that enable the
sharing of data, images, sound, writing, or other information among
computing devices controlled by the senders or recipients of the
messages.” This definition precisely describes Voice over IP
services. The FCC cannot extend CALEA to cover VoIP without explaining why it
is not excluded as an information service, which incorporates the §
1001(4) definition of electronic messaging service.
“It
is perhaps theoretically possible that, on remand, the FCC could craft an
explanation as to why “interconnected” VoIP is not an information
service (and thus could be covered by CALEA) even though peer-to-peer VoIP is
clearly an information service. The question of the classification of VoIP was
squarely raised in comments before the agency, yet the FCC wholly failed to
address this question. Until such time that the Commission makes such a
determination, this Court cannot allow the FCC’s extension of CALEA to
any VoIP to stand. …”
***
A
Bit of Irony on CALEA Compliance:
One
particularly ironic point that we have recently discovered is that all
interconnected VoIP providers will have to be CALEA compliant by next May, but,
after 10 years, only 10-20% of wireline switches will actually be CALEA
compliant. At current rates, it will take wireline companies 50 to 100
years to be 100% CALEA compliant. As the Bells said of VoIP, “there
should be no safe haven for terrorists.” Thus, they should also
become compliant by May of next year, or not be able to market or sell voice
service where they are not compliant if there is a CALEA compliant service that
can serve those customers – helping to ensure that in a post 9/11 world
that there are no safe havens for terrorists.
***
A
Bit on Irony on the E911 and Universal Service Rules:
I
also think it is especially ironic that the deep-pocketed wireless carriers are
still not fully E911 compliant after 17 years. Meanwhile, the VoIP providers must be
E911 compliant or cannot offer services.
AND, the nascent VoIP providers now have to pay into a Universal Service
Fund to which they are not eligible but to support wireline and wireless
operators who, themselves, are allowed to offer and market services where they,
themselves, are not E911 or CALEA compliant.
***
I would love to build a matrix that actually included all of
the FCC decisions that touch upon regulatory classifications and demonstrates
just how irreconcilable the competing rules are becoming and just how shaky is
the foundation of this every growing house of cards. At this point, the VoIP providers are
obligated to reconfigure their networks, services and technologies to offer
everything (and more) that the non-VoIP providers offer. Meanwhile, the traditional providers are
not similarly obligated to reconfigure their networks, services and technologies
to offer everything that the VoIP providers offer.
Tags: CALEA, e911, Jeff Pulver
(c) 2006 Jeff Pulver. All Rights Reserved.
(This blog posting is copyright protected by Jeff Pulver. Portions of this blog posting may be quoted or abstracted if attributed.)
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Posted by jeff on July 24, 2006 07:27 AM | Permalink
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Posted by: 升降机 at July 14, 2008 06:09 AM
let me start by saying that i am a huge fan of VOIP and your efforts in telecom reform and net neutrality.
with that said, i don't think that this is the right way to argue back at the incumbent telcos.
yes it is totally unfair that their lobbyists get to mold the rules in their favor. that is not surprising in the least and is pretty much standard operating procedure for verizon and at&t.
we all hear your side, and we all want voip to win this fight, but this response is weak.
the way to really get to the big telcos is to beat them at thier own game. VOIP networks are simpler, more flexible, and easier to upgrade than the aging krufty PSTN that the telcos needed government cheese to build. if anyone can live up to these contradictory regulations, it the guys with the cost effective networks.
if you claim that you are better at playing the telco game than the telcos themselves, then you need to go out there and play a better game. if they still aren't e911 and calea compliant, then achieve compliance before they do. do it faster and for far less, and then demand your share of the universal service fund as the spoils of war. do it right, and they will start complaining about how you have an unfair advantage because you can make changes faster than they can.
show us how slow moving and dull witted the telcos are. demonstrate to us how corrupt the telco lobbies are. work with your competitors in the VOIP space to come up with an elegant method of achieving complaince. show the telco establishment that you have what it takes to deliver more features for less money.
don't back down and admit that VOIP is not a substitute for "real" telephone service. step up and become not just a substitute, but a superior offering.
do it, not just for us, not just for your work, do it because the united states will still need to make 911 calls long after the telcos have put themselves out of business.
Posted by: chris at July 25, 2006 05:29 PM