Time to Switch the Packets: VoIP and the Regulatory Disconnect

Several commentators have remarked the high reliance placed by the campaign managers of Barack Obama on the internet. John Perry Barlow author of the Internet Manifesto has himself described the 2008 election as the first internet election. Thus it comes as no surprise that Barack Obama had a dossier on various issues which confronted the internet and proposed solutions to them. These changes were perceptible even before Barack Obama officially took oath as the next president, by announcing the appointment of his, transformation team. Members of this transformative team include Kevin Wireback. Kevin, a former FCC staffer, organizer of the annual tech conference Supernova, and a Wharton professor will review the working of the Federal Communications Commission. What makes his appointment interesting is that he has been one of the most vocal proponents of the layered model of regulation due to the increased adoption of Voice over Internet Protocol Services. The model which is explained in detail later marks a fundamental change in the regulation of telecommunications law and policy of the United States which has been in places since 1934. The present article evaluates the layered model as well as other solutions which have been proposed to the problems which emerge in a legal structure not designed to regulate the intersection of traditional telecommunications and internet protocol enabled activities. In the course of the evaluation of the competing models of regulation, the present actions by the FCC in forbearing to classify VoIP and making piecemeal regulations is seen as self defeating and the change in the regulatory framework is asked for. Part I lays out the background to the problem of classification of VoIP services. It discusses the underlying technology as well as its substantial resemblance to telecommunications services and poses the problem of classification. Part II provides an overview of the present policy framework on the regulation of VoIP services. Through a review of the FCC's orders on VoIP services its duo policy of forbearance to classify as well as piecemeal rulings is discerned. Part III contains an appraisal of the present policies and how they work against the objectives sought to be achieved. The appraisal sets the backdrop to developing a theoretical alternative. Part IV reviews the alternative of a layered model of regulation and shows the problems and the critisms which are leveled at it. Due to these concerns it is unlikely that the model will be adopted anytime soon. Then a traditional model of regulation is evaluated through a legislative amendment of the Telecommunications Act, 1996. In such an evaluation a nuanced proposal is made premised on the need to protect innovation through classification as well as balancing competing interests and addressing the issues which arise from this technology.