Senate Commerce Committee Begins Mark Up of Communications Reform Bill

June 22, 2006. The Senate Commerce Committee (SCC) began its mark up the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006". See, third discussion draft [159 pages in PDF] of the bill, which was introduced as S 2686, but is now numbered HR 5252.

The SCC will resume at 10:00 AM on Tuesday, June 27, 2006. The SCC has dealt with over twenty amendments. Sen. Ted Stevens (R-AK), the Chairman of the SCC, told reporters after the meeting that there are over one hundred amendments, and that if the SCC does not finish on Tuesday, it will continue on Wednesday.

Members of the SCC made opening statements. These revealed that the one issue upon which there is substantial and intense division is network neutrality, which is addressed in Title IX of the bill. There is also considerable debate over video franchising, which is the subject of Title III.

The SCC substituted the third discussion draft for the bill as introduced, without objection. The SCC then approved without objection a package of eighteen amendments, eleven of which pertain to Title II, which addresses universal service and interconnection.

Sen. Stevens announced that the Committee would consider amendments to the bill, Title by Title, starting with Title I.

The SCC completed its consideration of amendments to Title I of the bill, which is titled "War on Terrorism". Title I includes provisions regarding interoperable emergency communications. The SCC considered several amendments to expand the types of entities eligible to receive interoperability grants. Sen. Stevens opposed such proposals, arguing that all of the funds should go to first responders. Although, the SCC approved one amendment offered by Sen. Ben Nelson (D-NE). Also, Sen. Jay Rockefeller (D-WV), who was absent, will be permitted to offer amendments when the mark up resumes on June 27.

The SCC began, but did not complete, its consideration of amendments to Title II, regarding universal service and interconnection.

Sen. John Sununu (R-NH) also offered, but withdrew, an amendment that would cap universal service taxes and subsidies at $6,520,066,000 per year, with annual increases based on the rate of inflation.

Rights and Regulation of VOIP Providers. Sen. Sununu (at right) also offered a first decree amendment, and two second degree amendments to his first degree amendment, regarding interconnected VOIP service providers, including interconnection and compensation rights and obligations, and preemption of certain types of state laws. The three amendments were considered together, and approved by one roll call vote of 14-8.

In short, the third discussion draft includes, in Title II, a section 715 titled "Rights and Obligations of IP-Enabled Voice Service Providers". Sen. Sununu's amendments revise Section 715, and add a new Section 1007 to Title X of the bill, the miscellaneous provisions title.

Several members of the SCC debated at length, and sought guidance from counsel regarding, what types of state regulation of VOIP service would be preempted, and what types would not be preempted.

Sen. Byron Dorgan (D-ND) argued against state preemption, and these amendments. He was joined in voting against the amendments by Senators Conrad Burns (R-MT), David Vitter (R-LA), Daniel Inouye (D-HI), Jay Rockefeller (D-WV), John Kerry (D-MA), Ben Nelson (D-NE), and Mark Pryor (D-AR). Some votes were cast by proxy.

The SCC will continue its consideration of amendments on this subject, and other amendments to Title II, on Tuesday, June 27.

The entirety of the Sections 715 and 1007 are set out below. The language from the third discussion draft is shown in normal font and color. Sen. Sununu's additions are displayed in bold and red print. His deletions are shown in strikethrough. Readers whose e-mail system deletes HTML font codes from e-mail messages will not be able to see the which language is added and deleted by Sen. Sununu's amendments.

SEC. 715. RIGHTS AND OBLIGATIONS OF IP-ENABLED VOICE SERVICE PROVIDERS.

(a) IN GENERAL.—A facilities-based (as determined by the Commission) IP-enabled voice service provider shall have the same rights, duties, and obligations as a requesting telecommunications carrier under sections 251 and 252, if the provider elects to assert such rights. A telecommunications carrier may not refuse to transport or terminate IP-enabled voice traffic solely on the basis that it is IP-enabled. A provider originating, transmitting, or terminating IP-enabled voice traffic shall not be exempted from paying compensation for interstate traffic owed to another provider or carrier solely on the basis that such traffic is IP-enabled, and any obligations to pay compensation with respect to traffic that originates or terminates on the public switched telephone network shall be reciprocal, including any payment to an IP-enabled voice service provider that receives traffic from, or sends traffic to, the public switched telephone network.

(b) DISABLED ACCESS.---An IP-enabled voice service provider or a manufacturer of IP-enabled voice service equipment shall have the same rights, duties, and obligations as a telecommunications carrier or telecommunications equipment manufacturer, respectively, under sections 225, 255, and 710 of the Act. Within 1 year after the date of enactment of Internet and Universal Service Act of 2006, the Commission, in consultation with the Architectural and Transportation Barriers Compliance Board, shall prescribe such regulations as are necessary to implement this section. In prescribing the regulations, the Commission shall take into account the differences between IP-enabled voice service and circuit-switched communications and the functionalities required by the disabled community.

(c) IP-ENABLED EMERGENCY RESPONSE SYSTEMS.---Prior to installation or activation of an IP-enabled voice service for a customer, an IP-enabled voice service provider shall provide clear and conspicuous notice to the customer that---

   (1) such customer should arrange with his or her emergency response system provider, if any, to test such system after installation;

   (2) such customer should notify his or her emergency response system provider as soon as the IP-enabled voice service is installed; and

   (3) a battery backup is required for customer premises equipment installed in connection with the IP-enabled voice service in order for the signaling of such system to function in the event of a power outage.

(d) STATUS.---Notwithstanding any other provision of law, IP-enabled voice service is an interstate service and is subject only to Federal regulations except as provided in section 254.

(e) (d) DEFINITIONS.---In this section:

   (1) EMERGENCY RESPONSE SYSTEM.---The term ‘emergency response system’ means an alarm or security system, or personal security or medical monitoring system, that is connected to an emergency response center by means of a telecommunications carrier or IP-enabled voice service provider.

   (2) EMERGENCY RESPONSE CENTER.---The term ‘emergency response center’ means an entity that monitors transmissions from an emergency response system.

   (3) IP-ENABLED VOICE SERVICE.---The term ‘IP-enabled voice service’ means the provision of real-time 2-way voice communications offered to the public, or such classes of users as to be effectively available to the public, transmitted through customer premises equipment using IP protocol, or a successor protocol, for a fee (whether part of a bundle of services or offered separately) with interconnection capability such that the service can originate traffic to, and terminate traffic from, the public switched telephone network.

SEC. 1007. CLARIFICATION OF CERTAIN JURISDICTIONAL ISSUES.

(a) IN GENERAL.---Notwithstanding any other provision of law, the Commission shall have authority to issue, and shall not undermine, alter, or amend decisions made in Vonage Holdings Corp. Petition for Declaratory Ruling Concerning an Order of the Minnesota  Public Utilities Commission, WC Docket 04-267 (November 9, 2004) or Petition for Declaratory Ruling that pulver.com's Free World Dialup is Neither Telecommunications Nor a Telecommunications Service, WC Docket No. 03045 (February, 19, 2004), except to apply such decisions to other similar services that share similar basic characteristics.

(b) PENDING CHALLENGES.---Any pending challenges to the decisions described in subsection (a) shall be dismissed.

(c) CLARIFICATION.---Nothing in this section shall be construed to supercede or preempt the consumer protection laws of any State, including any privacy or anti-child pornography law of a State, except to the extent that such laws regulate the rates for entry or exit by a provider of such services.

Editor's Notes:

See, FCC's Pulver order [PDF], and stories titled "FCC Rules Pulver's FWD Is Not Telecommunications, Is Not Telecommunications Service, and Is Information Service" and "Reaction to the FCC's Pulver Ruling" in TLJ Daily E-Mail Alert No. 836, February 13, 2004.

See, FCC's Vonage order [PDF], and stories titled "FCC Adopts Order on Vonage's VOIP Petition" in TLJ Daily E-Mail Alert No. 1,015, November 10, 2004, and "FCC Releases Vonage VOIP Order" in TLJ Daily E-Mail Alert No. 1,018, November 15, 2004.