Tuesday, January 16, 2018

Restoring Internet Freedom Order Bolsters VoIP Freedom

In a blog post from October 2017, I wrote about "The Case for Keeping VoIP Free from Legacy Regulation." The blog discussed Charter Advanced Services (MN) v. Lange, a case with important implications as to whether VoIP services will remain largely free from state legacy regulation. The U.S. District Court decision under review rightly concluded that the VoIP offering at issue "engages in net protocol conversion, and that this feature renders it an 'information service' under applicable legal and administrative precedent." 
On January 10, counsel for Charter Communications filed a letter with U.S. Court of Appeals for the Eighth Circuit, outlining ways in which the Restoring Internet Freedom Order supports the conclusion that Charter's Spectrum Voice VoIP service is, in fact, a Title I information service. Among other things, the letter points out that the Restoring Internet Freedom Order:
  • [E]mphasizes the "narrow scope" of the [telecommunications management] exception [to Title I] and reiterates that features "designed to be useful to end-users rather than providers" do not fall within it.
  • Reiterates that information services can "include[] a transmission component," and that this "does not render broadband Internet access services telecommunications services; if it did, the entire category of information services would be narrowed drastically."

  • Applies the FCC's standards for assessing when information and telecommunications components are functionally integrated and what the provider "offers"… [and] …finds that "relevant classification precedent focuses on the nature of the service offering the provider makes, rather than being limited to the functions within that offering that particular subscribers do, in fact, use."
  • Expressly preempts the states from public utility regulation of broadband Internet services, reiterating to the "longstanding federal policy of nonregulation for information services" and emphasizing "Congress's approval" of that "preemptive federal

Certainly, broadband Internet access services offer much more transforming, processing, and other functional capabilities to end user subscribers than VoIP services. Yet, the highlighted analytical aspects of the Restoring Internet Freedom Order surely strengthen the conclusion that Charter's Spectrum Voice services are information services under Title I. In sum, the Restoring Internet Freedom Order bolsters VoIP freedom from state legacy regulation.