FCC Rings New Round of Regulatory Uncertainty

The Federal Communications Commission’s (FCC) rules on Voice over IP wiretapping accessibility is likely to set off another round of regulatory uncertainty, all in the name of regulatory certainty.Since the FCC began investigative proceedings on VoIP almost two years ago, the agency has promised a light regulatory approach but stressed that Internet telephone services would have certain legal obligations, particularly in the areas of law enforcement and public safety.

The FCC first took up public safety, ordering Internet telephone companies provide the same E911 calling services as traditional telephone firms. One lawsuitis already pending on that order.

In early August, the FCC mandatedthat wireline broadband providers and Internet telephone companies have 18 months to comply with the network wiretap accessibility rules of the Communications Assistance for Law Enforcement Act (CALEA).

Last weekend, the FCC quietly released the actual rules backing up its unanimous August vote. The issuance of the rules is likely to set in motion months, if not years, of even more litigation, a possibility not overlooked by the commissioners.

“Because litigation is as inevitable as death and taxes, and because some might not read the statute to permit the extension of CALEA to the broadband Internet access and VoIP services at issue here, I have stated my concern that an approach like the one we adopt today is not without legal risk,” wrote Republican Commissioner Kathleen Abernathy.

Democrat Michael Copps added, “Though I approve today’s decision, I continue to note that it is built on very complicated legal ground. The statute is undeniably stretched to recognize new service technologies and pushed very hard to accommodate new and emerging telecommunications platforms.

At issue is the statutory scope of CALEA, a controversial measure passed by Congress in 1994 and originally meant to apply only to traditional telephone networks. In fact, CALEA specifically exempts information services.

But in an effort to deal with the Department of Justice’s concerns that VoIP networks, with no obligation to accommodate legal wiretaps, could become the phone service of choice for terrorists and other criminals, the FCC stretched CALEA’s definitions to include VoIP.

“Although I believe that new technologies and services should operate free of economic regulation, I also believe that law enforcement agencies must have the ability to conduct lawful electronic surveillance over these new technologies,” FCC Chairman Kevin Martin said in a statement.

“We must strike a balance between fostering competitive broadband deployment with meeting the needs of the law enforcement community.”

Martin said the FCC would issue further rules in the coming months about VoIP and wiretap obligations, including cost recovery, standards, and enforcement.

“We firmly expect that interconnected VoIP and facilities-based broadband Internet providers use the regulatory clarity provided by this order to begin tackling the technical issues necessary for full compliance,” Martin wrote. “I am committed to ensuring that these providers take all necessary actions to incorporate surveillance capabilities into their networks in a timely fashion.”

Almost immediately after the new CALEA rules were published over the weekend, the public advocacy group Center for Democracy and Technology (CDT) began sharpening its legal briefs.

“CDT and others are likely to challenge the FCC’s order in court, arguing that the decision exceeds the terms of the statute, imposes undue burdens on innovation and threatens the privacy of Internet users,” the CDT wrote in a brief statement.

Abernathy, as she has done for more than a year, again urged Congressional action to clarify the matter.

“Because some parties will dispute our conclusions, the application of CALEA to these new services could be stymied for years,” she wrote. “For this reason, I continue to believe that the Commission, the law enforcement community, and the public would benefit greatly from additional Congressional guidance in this area.

Or, as Copps put it, “If CALEA is not judged to apply to these new services, our efforts here will have done more harm than good.”

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