Minnesota PUC Asks Supreme Court to Decide VoIP Classification
The Minnesota Public Utilities Commission sought Supreme Court review of the 8th Circuit U.S. Court of Appeals decision that interconnected VoIP is an information service, in a case about whether the state may regulate Charter Communications cable phone service. The agency Wednesday filed a writ of certiorari in case No. 18A889. That was expected (see 1903040025).
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"The question of whether states may regulate VoIP service is of national importance to the communications industry and to millions of consumers,” the PUC wrote. "As VoIP service takes over the landline market, one of the most pressing questions is whether it should meet the standards and regulations applicable to the technology it is replacing." The regulator said the 8th Circuit decision to pre-empt state regulation meant fewer protections for customers and “handed VoIP providers a major competitive advantage.” The court did so “based on three paragraphs of statutory analysis, without any discussion of the significant policy consequences," the PUC said. "The questions presented deserve far more attention and this Court’s review.”
Despite one judge’s “strong dissent,” the majority “concluded that the FCC’s policy against regulating information services conflicts with and preempts state regulation of VoIP service,” even though “the FCC has never applied this policy to VoIP,” the PUC said. While the FCC hasn't classified interconnected VoIP, the agency multiple times extended Title II obligations to the service, it said.
The 8th Circuit failed to follow "well-established methodology for classifying communications services,” the PUC said. "When classifying communications services, the FCC uses a functional approach based on consumer perception, a methodology this Court has upheld" in the 2015 Brand X ruling. VoIP is functionally equivalent to traditional phone service for consumers, it said. “Both transmit voice conversations between the caller and the called party without any change in the content of the conversation. The only difference is the underlying technology used to transmit the voice signal.”
The appeals court’s ruling was inconsistent with Supreme Court pre-emption precedents from a 2009 ruling in Wyeth v. Levine and a 2000 ruling in Geier v. American Honda Motor Co., the PUC said. “Because the FCC has not classified VoIP service as an information service, there is not an actual conflict between state regulation of VoIP service and the FCC’s information services policy.” The 8th Circuit ruling also conflicts with a Vermont Supreme Court's 2013 opinion that some but not all state regulation of information services is pre-empted, it said.
Getting review is no slam dunk but is the Minnesota PUC’s last best hope (see 1812140022).
NARUC supports the petition and thinks it “has a good shot,” emailed General Counsel Brad Ramsay. The Supreme Court grants only about 80 of up to 8,000 cert petitions per term, but “there is no question this petition raises issues worthy of Supreme Court review” and meets the court’s criteria, Ramsay said.
“I would be surprised if the Supreme Court heard this case, and even more surprised if the 8th Circuit decision was not affirmed,” said Voice on the Net Coalition Executive Director Glenn Richards, representing VoIP providers. Charter and the FCC didn’t comment Wednesday.