Is VOIP Regulation a Done Deal?. David Isenberg thinks the FCC has already decided how to regulate Internet telephony, based on some comments from former FCC Chairman Reed Hundt and a letter by current FCC Chairman Michael Powell.  I'm not convinced.

Not necessarily contracting anything Reed apparently said, but here are a few points:

• To my knowledge there is no requirement that the FCC hold a notice of inquiry proceeding before acting.  The legal requirement under the Administrative Procedure Act is "notice and comment," which means an NPRM.  An NOI is customarily done when first examining a new area, but plenty of FCC rulemaking proceedings happen without one.
  
  
• I don't know details of the December 1 meeting, but under the Sunshine Act, if three or more FCC Commissioners will be in the room at the same time, it has to be a formal, on-the-record, hearing.  The alternative is an informal gathering like the WISP event they did, but anything with people testifying to the Commission kicks in significant requirements.  Powell's letter says "hearing," while the FCC news release says "Forum", which suggests there may have been some uncertainty about the event.
  
  
• I understand that Jeff Pulver was invited to participate in the Dec. 1 event, so it's not totally excluding the VOIP innovators and entrepreneurs.  We'll have to see who's on the speaker list when it's released.

I remember when I received the ACTA petition to regulate VOIP back in 1996.  As a matter of course, the FCC puts petitions for rulemaking on public notice, and we did so in that case.  There was a huge outcry in the VOIP community that the speed of the public notice meant the FCC was rushing to regulate.  Well, it has been seven plus years since then, and five years sine the FCC's "Stevens Report" on VOIP.  From the beginning it was clear there was a hard issue to address about the impact of VOIP on Universal Service.  What's nefarious about the FCC finally taking on that issue in a public proceeding?

As to whether the Commission has already made its mind up about what it plans to do, that's a fair question.  The Chairman certainly went into the media ownership and Triennial Review proceedings with a clear point of view.  This time I'm not so sure.  Powell made a point to stop by the FCC's Technological Advisory Council last month to ask for help in figuring out what to do about VOIP.  There's nothing in his prior record that suggests he's hell-bent on regulating the new technology like the old. 

I personally believe the FCC needs to take action on VOIP, in order to eliminate regulatory uncertainty.  They emphatically should not impose the litany of traditional telecom regulation, including universal service obligations, on all forms of VOIP.  The best way to avoid that happening in the future is for the current Commission to draw some bright lines, rather than pretend the issue will go away. 
[Werblog]