Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, June 12, 2006

DC Circuit Uphelds FCC Rule Allowing Wiretaps of VoIP

In American Council on Education, v. FCC, the DC Circuit has held that the FCC's determination that CALEA (the Communications Assistance for Law Enforcement Act) "applies to providers of broadband Internet access and voice over Internet protocol ("VoIP") "telecommunications carriers"..." is justified. CALEA, said the court, "applies only to "telecommunications carriers."...The Act defines a "telecommunications carriers" as an entity engaged in the transmission or switching or wire or electronic communications as a common carrier for hire."...However, in addition...CALEA's definition ...also includes [1] a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that [2] the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service and that [3] it is in the public interest to deem such a person or entity to be a telecommunications carrier...."

The court continued, "The FCC then concluded that broadband and VoIP are hybrid services that contain both "telecommunications" and "information" components....The Commission explained that CALEA applies to providers of those hybrid services only to the extent they qualify as "telecommunications carriers" under the three prongs of the SRP [Substantial Replacement Provision [ed.]]. First, providers of both technologies must perform witching and transport functions...Second, providers...serve as replacement for a substantial functionality of local telephone exchange service....Third, the public interest requires application of CALEA to the "telecommunications" componenet of both technologies...."

"ACE raises three arguments in its petition for review. First ACE argues that broadband Internet access is an integrated "information service" under CALEA, and as such, it is uniformly excluded from the Act's substantive requirements. Second, ACE argues that VoIP similarly qualifies for CALEA's information-services exclusion. Third, ACE argues that the Commission unlawfully applied the Act to "private networks."


"ACE first argumes that broadband Internet access is an "information service"....The Supreme Court has upheld the FCC's classification...under the Telecom Act. CALEA's definition of "information service" is virtually identical....Therefore, ACE concludes broadband providers must fall within the ambit of CALEA's identical "information services" exclusion....We disagree....CALEA and the Telecom Act are different statutes."


"ACE next argues that the Commission arbitrarily and capriciously "refused to classify VoIP as either a telecommunications service or an information service."...As we explained above, CALEA says nothing about "telecommunications service[s]." To the extent ACE and its fellow petitioners confusedly petitioned the Commission to (mis)classify VoIP...the FCC did not err by declining...."


"ACE's third and final argument focuses on a single word in a single sentence in a single footnote from the Order....Relying on language from the proposed rule, ACE insists that the inclusion of the word "support" in the...rule "provides no real comfort" ...that the Commission will extend its regulatory authority "throughout [an] entire private network."...Although ACE's argument suggests the point is not necessarily self-evidence, it should go without saying that a proposed rule is not a final rule."


"If and when the Commission expands its interpretation, an aggrieved party can bring a petition for review at that time. For the reasons set forth above, the petition for review is Denied."

Read the entire ruling here.

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