WASHINGTON—A federal appeals court appears willing to agree with the Federal Communications Commission that Voice over Internet Protocol technology substantially replaces standard telecommunications services—but at least one judge believes the FCC’s argument that broadband Internet access is also a telecom replacement is “disingenuous” and “ridiculous.”
Whether VoIP and broadband Internet access replace telecommunications is the pivot point on whether such services must comply with the Communications for Law Enforcement Act of 1994. Congress passed CALEA just as the use of mobile telephony was taking off, and law enforcement began having trouble wiretapping those using cellular phones—even though the thinking behind CALEA was that law enforcement needed to maintain its surveillance capabilities even as technology changed. Congress, however, wanted to make sure that the government didn’t overreach, so it put in place an exemption for information services. How or whether to apply that exemption was the argument presented before the U.S. Court of Appeals for the District of Columbia Circuit this morning.
The issue has clear implications for third-generation wireless providers, which offer services comparable to cable modem and digital subscriber line connections that support VoIP calls.
“It would seem parts of this are going back to the FCC, thus demonstrating that Congress needs to intervene,” said Michael Altschul, CTIA senior vice president and general counsel, who attended this morning’s argument.
The FCC said last fall that both VoIP and broadband Internet access were subject to CALEA. While the three-judge panel seemed to agree with the FCC that VoIP must comply with CALEA, they did not agree that broadband Internet access was subject to the legislation. Jacob Lewis, arguing on behalf of the FCC, found himself trying to explain why the FCC pressed its definition of an information service under the Communications Act all the way to the Supreme Court and won—but then seemed to ignore that definition when it came to CALEA.
“The question is whether it should be regulated under a market statute—the Communications Act or under CALEA,” argued Lewis. “Those statements (referring to the Brand X Supreme Court case) were made under the Communications Act.”
But Senior Judge Harry Edwards didn’t seem to buy Lewis’ argument.
“There is nothing in this statute to say it (information services) was anything different than what the FCC has always said it was,” said Edwards. “Once a technical term has a clear meaning, you have to point to something in CALEA to say that it means something different. You can’t now say that a telephone is an orange because you are defining the telephone under a different statute—that will not make the telephone a fruit.”
If the other two judges on the panel agree with Edwards’ reasoning—and he seemed to get some support from Judge David Sentelle—then broadband Internet access providers will not have to reconfigure their networks at their own cost to comply with government specifications.
As for telecommunications providers, the FCC Wednesday reaffirmed that carriers have one year to comply with CALEA. The agency also ruled that carriers cannot be reimbursed for the reconfiguration.
Thus, VoIP providers likely will need to start working on CALEA compliance because even Edwards said VoIP substantially replaces standard telecommunications services.
Cost had been expected to be a major topic during the hearing since the lead opponent to the FCC was the American Council of Education, which represents colleges and universities. ACE had argued in its briefs that it would be too costly to reconfigure its private networks. CALEA has exemptions for both information services and private networks.
Matthew Brill, ACE outside counsel, took issue with the FCC’s argument that colleges only had to upgrade their connection to the public-switched telephone network. Brill said such an upgrade, or gateway, would still run up against the private network exemption.
“They rely on the argument that a gateway is covered. That is the same thing as my driveway. It is still on private property,” said Brill. When Sentelle questioned whether Brill was trying to say that search warrants did not cover driveways and thus wiretap orders did not cover private networks, Brill reassured him that private networks will still comply with wiretap orders. “They simply won’t continue under CALEA,” he added.
Brill is a former senior legal adviser to former FCC Commissioner Kathleen Abernathy who warned last year the FCC was on shaky legal ground in its analysis.
Verizon Wireless Wednesday said it was supporting the FCC’s CALEA positions.
“That’s another demonstration of Verizon Wireless’ firm commitment to assisting law enforcement in accomplishing its mission every day,” said Steve Zipperstein, Verizon Wireless vice president for legal and external affairs.
The rest of the industry did not take a side in the dispute.
