Wednesday, December 03, 2003
FCC VoIP Hearing: Kevin Werbach on insider "forbearance" conversation
Kevin Werbach writes:
The panelists didn't understand what was going on when Martin asked the question about forbearance and Powell made his followup comment [saying that it is not so easy to forbear -- David I]. It was FCC-insider shorthand for a very specific legal issue.
If the FCC wants to avoid regulating VOIP, it can either declare it an "information service" or it can "forbear." Calling it an information service means making a determination that it fits the requirements of that term as defined in the Communication Act. If it does, none of the rules governing "telecommunications service" apply. (Some other rules might apply, but the FCC has fairly wide latitude.) On the other hand, the FCC's decision that the service fits the definition could be challenged in court. This is what happened with cable modem service. Powell pushed through an order calling it an information service (meaning no open access requirement), but the 9th circuit reversed the FCC, saying that it was telecommunications.
On the other hand, the FCC can forbear. "Forbearance" has a particular meaning under the 1996 Telecom Act. It doesn't just mean they do nothing, contrary to what Tom Evslin said. They have to make a set of affirmative findings that satisfy a legal test in the statute, and they probably have to do so for each rule they forbear from applying. So, they would likely have to do an order that has dozens or hundreds of pages explaining why, for example, they don't apply section 251 to VOIP, then why they don't apply section 254, and so forth. All of which is also subject to court review. Powell thinks this course of action is a longer and more difficult one than just calling it all an information service. Martin isn't so sure.
Again, none of this means they will come out a particular way on the overall issue. The clear point is that there is sufficient desire and support at the FCC to pre-empt the states. But on what happens to "phone-to-phone" services, it's still an open question.
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