Minnesota Public Utilities Com'n v. F.C.C.
| Citation | 483 F.3d 570 |
| Decision Date | 21 March 2007 |
| Docket Number | No. 05-3118.,No. 05-1069.,No. 05-1122.,No. 05-3114.,05-1069.,05-1122.,05-3114.,05-3118. |
| Parties | The MINNESOTA PUBLIC UTILITIES COMMISSION; Petitioner, National Association of Regulatory Utility Commissioners; Intervenor on Behalf of Petitioner, Arizona Corporation Commission; State of New Jersey, Board of Public Utilities; State of Nebraska; State of California; State of Connecticut; Amici on Behalf of Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America; Respondents, Vonage Holdings Corporation; Time Warner, Inc.; Time Warner Cable, Inc.; America Online, Inc.; Level 3 Communications, LLC; Charter Communications, Inc.; High Tech Broadband Coalition; 8 X 8, Inc.; Bellsouth Corporation; Qwest Communications International, Inc.; Verizon; The Voice on Net Coalition, Inc.; Pulver.Com; Pacific Lightnet, Inc.; AT & T, Inc., formerly known as SBC Communications Inc. and AT & T Corp; Intervenors on Behalf of Respondents, California Public Utilities Commission; Amicus on Behalf of Respondents. National Association of State Utility Consumer Advocates; Petitioner, National Association of Regulatory Utility Commissioners; Intervenor on Behalf of Petitioner, Arizona Corporation Commission; State of New Jersey, Board of Public Utilities; State of Nebraska; State of California; State of Connecticut; Amici on Behalf of Petitioner, v. Federal Communications Commission; United States of America; Respondents, Vonage Holdings Corporation; Time Warner, Inc.; Time Warner Cable, Inc.; America Online, Inc.; Level 3 Communications, LLC; Charter Communications, Inc.; High Tech Broadband Coalition; 8 X 8, Inc. Bellsouth Corporation; Qwest Communications International, Inc.; Verizon; The Voice on Net Coalition, Inc.; Pulver.Com; Pacific Lightnet, Inc.; AT & T, Inc., formerly known as SBC Communications Inc. and AT & T Corp; Intervenors on Behalf of Respondents, California Public Utilities Commission; Amicus on Behalf of Respondents. Public Utilities Commission of Ohio; Petitioner, National Association of Regulatory Utility Commissioners; Intervenor on Behalf of Petitioner, Arizona Corporation Commission; State of New Jersey, Board of Public Utilities; State of Nebraska; State of California; State of Connecticut; Amici on Behalf of Petitioner, v. Federal Communications Commission; United States of America; Respondents, Vonage Holdings Corporation; Time Warner, Inc.; Time Warner Cable, Inc.; America Online, Inc.; Level 3 Communications, LLC; Charter Communications, Inc.; High Tech Broadband Coalition; 8 X 8, Inc.; Bellsouth Corporation; Qwest Communications International, Inc.; Verizon; Pulver.Com; The Voice on Net Coalition, Inc.; Pacific Lightnet, Inc.; AT & T, Inc., formerly known as SBC Communications Inc. and AT & T Corp; Intervenors on Behalf of Respondents, California Public Utilities Commission; Amicus on Behalf of Respondents. People of the State of New York; The Public Service Commission of the State of New York; Petitioners, National Association of Regulatory Utility Commissioners; Intervenor on Behalf of Petitioners, Arizona Corporation Commission; State of New Jersey, Board of Public Utilities; State of Nebraska; State of California; State of Connecticut; Amici on Behalf of Petitioners, v. Federal Communications Commission; United States of America; Respondents, Vonage Holdings Corporation; Time Warner, Inc.; Time Warner Cable, Inc.; America Online, Inc.; Level 3 Communications, LLC; Charter Communications, Inc.; High Tech Broadband Coalition; 8 X 8, Inc.; Bellsouth Corporation; Qwest Communications International, Inc.; Verizon; Pulver.Com; The Voice on Net Coalition, Inc.; Pacific Lightnet, Inc.; AT & T, Inc., formerly known as SBC Communications Inc. and AT & T Corp; Intervenors on Behalf of Respondents, California Public Utilities Commission; Amicus on Behalf of Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Before BYE, HEANEY,1 and COLLOTON, Circuit Judges.
Before the court are consolidated petitions for review which challenge an order of the Federal Communications Commission (FCC) preempting state regulation of telecommunication services which utilize a relatively new technology called Voice over Internet Protocol (VoIP). The FCC preempted state regulation after determining it would be impractical, if not impossible, to separate the intrastate portions of VoIP service from the interstate portions, and state regulation would conflict with federal rules and policies. We conclude the issue raised in the petition filed by the Public Service Commission of the State of New York is not ripe for review and otherwise affirm the FCC's order and deny the petitions for review.
VoIP is an internet application utilizing "packet-switching" to transmit a voice communication over a broadband internet connection. In that respect, it is different from the "circuit-switching" application used to route traditional landline telephone calls. In circuit-switched communications, an electrical circuit must be kept clear of other signals for the duration of a telephone call. Packet-switched communications travel in small digital packets along with many other packets, allowing for more efficient utilization of circuits. While sophisticated, the application is also more cost effective than traditional circuit switches.
VoIP communications also differ from traditional circuit-switched telephone communications in another significant way. The end-to-end geographic locations of traditional landline-to-landline telephone communications are readily known, so it is easy to determine whether a particular phone call is intrastate or interstate in nature. Conversely, VoIP-to-VoIP communications originate and terminate at IP addresses which exist in cyberspace, but are tied to no identifiable geographic location. For example, a VoIP customer residing in Minnesota but visiting New York could connect a laptop computer to a broadband internet connection and communicate with a next-door neighbor via computer back in Minnesota, while the next day the same "caller" could be in Los Angeles and talk to the same friend who now happens to be in Los Angeles as well. The Internet would recognize both communications as taking place between the same two IP addresses, but when considering the geographic locations of the caller and recipient, the first call would be interstate while the second intrastate in nature.
Similarly, in VoIP-to-landline or landline-to-VoIP communications, known as "interconnected VoIP service,"2 the geographic location of the landline part of the call can be determined, but the geographic location of the VoIP part of the call could be anywhere in the universe the VoIP customer obtains broadband access to the Internet, not necessarily confined to the geographic location associated with the customer's billing address or assigned telephone number. Furthermore, using the North American Numbering Plan (NANP) (i.e., the system of using a three-digit area code followed by a seven-digit number) or a VoIP customer's billing address as "proxies" for the originating or terminating points of interconnected VoIP communications causes some interstate calls to appear to be intrastate in nature and vice versa. In the example used above, if we assume both the caller and recipient had Minnesota billing addresses and NANP numbers with Minnesota area codes, both communications would appear to be intrastate Minnesota calls if the billing addresses or NANP numbers were used as proxies for the originating and terminating points of the communications, even though the first was an interstate call between New York and Minnesota and the second an intrastate California call.
The use of such proxies as substitutes for the actual originating and terminating points of VoIP communications is further complicated by the fact VoIP customers can choose NANP numbers with area codes different from those associated with their billing addresses. Again referring to the example used above, assume the VoIP customer residing in Minnesota chose a NANP number with an Arizona area code. In such a case, the interstate communication between New York and Minnesota would appear to be a Minnesota intrastate call if the customer's billing address were used as a proxy for the originating point, but appear to be an interstate call between Arizona and Minnesota if the NANP number were used as a proxy for the originating point.
A distinction can be drawn, however, between what is referred to as "nomadic" VoIP service and "fixed" VoIP service. Nomadic service is the type described above, where a VoIP customer can use the service "nomadically" by connecting with a broadband internet connection anywhere in the universe to place a call. Fixed VoIP service describes the use of the same technology, that is, converting a voice communication into digital packets before transmitting it to another location, but in a way where the service is used from a fixed location. For example, cable television companies offer VoIP service to their customers, but when they do so the ensuing transmissions use the cable running to and from the customer's residence. As a result, the geographic originating point of the communications can be determined. Thus, when VoIP is offered as a fixed service rather than a nomadic service, the interstate and intrastate portions of the service can be more easily distinguished.
The use of VoIP technology has grown rapidly, and with this growth has come controversy over the technology's regulatory...
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