track the jurisdictional confines of customer calls would no longer qualify for the preemptive effects of our Vonage Order and would be subject to state regulation. This is because the central rationale justifying preemption set forth in the Vonage Order would no longer be applicable to such an interconnected VoIP provider.
The Petitioners primarily argued that the FCC’s finding of impossibility in the Vonage Order was inconsistent with its ruling in its VoIP 911 Order. The VoIP 911 Order requires VoIP providers to ensure that its customers have access to 911 dialing capabilities if an emergency arises. The Petitioners argued that this implies that the FCC is requiring the VoIP providers to know the end points of any given call to be able to provide this service, which is inconsistent with the finding of impossibility or impracticality. The Court ruled that the Orders are not inconsistent, because the FCC recognizes the difficulties inherent in identifying the end points of a VoIP transmission for purposes of 911 compliance. In recognizing these difficulties, the FCC allows VoIP providers to provide their customers with a means to register and update the location at which they would utilize the VoIP service, rather than requiring the provider to transmit the specific location of the caller to emergency personnel at the time of the 911 call.
The Petitioners may appeal this ruling to the Eighth Circuit en banc or directly to the United States Supreme Court. Based on the lack of certainty for fixed VoIP providers, it is likely that states will seek to impose their traditional telephone regulation schemes upon these type of providers. VoIP providers should examine whether the states are preempted from imposing this regulation. Providers should carefully examine this ruling, along with the FCC Vonage Order and the VoIP USF Order, in making their determinations. Further, the ultimate question as to whether VoIP service is a telecommunications service or an information service remains unanswered by the FCC. This decision, as well as any appeal of this case, should be monitored carefully.