The Jurisdictional Swamp
I've been struggling to understand why the FCC thinks it has jurisdiction over any internet application that makes a deal to send and receive data from traditional telephone numbers. Let's take SkypeOut. (David Weinberger, among millions of other happy customers, loves SkypeOut.) [The following applies only if SkypeOut both allows calls in from and out to the traditional phone network, or (potentially) if different Skype services could be used together by customers to allow both in and out calls].
On SkypeOut's main web page, it says in bold type:
Skype is not a telephony replacement service and cannot be used for emergency dialing. (Thanks to commenter Frankenstein for pointing this out.)
But it doesn't matter what SkypeOut says. Although the Commission has determined “that customers today lack any expectation that 911 will function for non-voice services like data services,” it's absolutely convinced that consumers expect 911 to work for voice services that allow calls to and from the traditional phone system. (Voice is apparently hugely, clearly, distinguishably different from data.)
Having decided that consumers expect 911 to work for voice services that use traditional phone numbers, the Commission then elaborates on its sources of power.
The abridged version:
1. We have power to decide what entities should provide 911 services. (citing Title I; Section 251, which is FCC's numbering authority over common carriers; and a December 2003 order about various kinds of wireless services and their responsibility to provide 911 services)
2. Congress is clearly worried about public safety, and so are we. (citing 1999 wireless E911 act.)
3. We have power under Title I to regulate all radio and wire communications worldwide. Here, “interconnected VoiP” applications are necessarily radio and wire communications. And Congress has asked us to promote public safety (citing that 1999 wireless act again).
4. Also, because these applications use traditional telephone numbers, we have authority over the entities that provide these services.
Ergo, we're in charge and SkypeOut has to provide enhanced 911 services — which means telling an emergency call center where the caller is. (Result: SkypeOut is crushed by the costs associated with determining that piece of information reliably; consumers, who never thought 911 was provided by SkypeOut in the first place, are up in arms about the privacy impacts involved; and the incumbents swoop in to maintain control.)
The problem with this argument is that it is both circular and unlimited — a sort of moebius strip of jurisdiction. We have power because we say we do; we have power because Congress hasn't said we don't; we have power because wire and radio communications and transmissions are involved. And, over and over again, we have power because Congress said we should have one 911 number for wireless services in 1999. (The legislative history of that 1999 Act says nothing about VoIP or the internet.)
There's no limiting principle here. There's no difference, really, between voice and data. All online applications involve radio/wire communications. And any of them, apparently, could be subjected to any rule that the FCC decided on.
This is just the first “social policy” rule, this E911 step, coming out of the FCC's March 2004 IP-Enabled Services NPRM (the subject of Bellhead/Nethead nearly a year ago). Also on the list of “social policies” the FCC is thinking of imposing on IP-enabled services under Title I: CALEA, disabled access, universal service, consumer protection. Stay tuned.