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FCC Files Amicus Brief in VoIP PUC Battle

By George Khoury, Esq. on November 15, 2017 | Last updated on March 21, 2019

The Federal Communications Commission has just filed an amicus brief in a case pending before the Eighth Circuit Court of Appeals that could change the VoIP game. And who the feds have chosen to support may (or may not) surprise you.

The case involves a rather significant battle over whether VoIP providers, like Vonage, should be regarded as traditional telecom companies, like Verizon, and subject to regulation by state run public utilities commissions. Right now, as the law currently stands, depending on whether a VoIP provider offers other more traditional communication (phone) or data (internet/cable) services, or not, the FCC regulations that apply are different. For standalone VoIP services, it is even less clear, despite the position of the parties.

"Hello ... Who's Suing?"

The case is between Charter Cable and the Minnesota Public Utilities Commission, whom didn't always see things so differently. In fact, up until 2013, Charter actually played by the MPUC's rules. However, in 2013, it formed a subsidiary company, moved all the Charter VoIP customers in the state to that subsidiary company, and then simply stopped paying and charging customers the MPUC imposed fees.

The MPUC then filed suit to declare the VoIP service a public utility subject to regulation, but lost at the District Court level, and are now awaiting argument on the federal appeal. Even though Charter had the gall to flat out admit that it created the subsidiary and moved its customers to avoid state regulations, the FCC seems to have no quam coming to their aid. Notably, the MPUC wants the VoIP providers to pay the same fees that regular telephone customers pay that go to support 9-1-1 services, and phone access for the poor.

Regulating Regulators

Fortunately for Charter, the FCC's brief is rather vocal in its support of the telecom company's ducking of the MPUC's rules. The amicus brief advises that there are several FCC orders that the MPUC could have looked to for clarity on what it can and cannot impose on a VoIP service that technically is not a telecom. Additionally, the brief notes that the state could have sought a declaratory relief action before the FCC to get even more clarity, as other state regulators have done.

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