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HR 4129 IH

To provide a clear and unambiguous structure for the jurisdictional and regulatory treatment for the offering or provision of voice-over-Internet-protocol applications, and for other purposes.

April 2, 2004

Mr. PICKERING introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To provide a clear and unambiguous structure for the jurisdictional and regulatory treatment for the offering or provision of voice-over-Internet-protocol applications, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; PURPOSE.

(a) Short Title- This Act may be referred to as the `VoIP Regulatory Freedom Act of 2004'.

(b) Purpose- The purpose of this Act is to prevent the imposition of harmful obligations or a patchwork of multiple and discriminatory regulations on the providers of applications that utilize the Internet protocol or any successor protocol to offer 2-way or multidirectional voice communications.

SEC. 2. ASSERTION OF FEDERAL JURISDICTION.

(a) In General- Notwithstanding any other provision of law, responsibility and authority to regulate the offering or provision of a voice-over-Internet-protocol application is reserved solely to the Federal Government.

(b) Prohibition of State Regulation- No State or political subdivision thereof may enact or enforce any law, rule, regulation, standard, or other provision having the force or effect of law that regulates, or has the effect of regulating, the offering or provision of a VoIP application.

(c) Prohibition of Delegation to States- Any responsibility or authority to regulate the offering or provision of a VoIP application that, pursuant to subsection (a), is reserved by the Federal Government may not be delegated, by any Federal agency or officer, to any State or political subdivision thereof.

SEC. 3. PREEMPTION OF BROAD FCC AUTHORITY.

Except as specifically provided in this Act and notwithstanding any other provision of law, the Commission shall not impose any rule or regulation on, or otherwise regulate, the offering or provision of a VoIP application.

SEC. 4. FCC AUTHORITY REGARDING CONNECTED VOIP APPLICATIONS.

(a) Interprovider Compensation-

(1) Rulemaking- Within 180 days after the date of the enactment of this Act, the Commission shall complete a proceeding to establish a set of rules and standards to provide for appropriate arrangements to compensate providers of facilities and equipment used to transmit communications employing a connected VoIP application.

(2) Factors- In the proceeding the Commission shall--

(A) provide for an appropriate transition period to allow providers of such facilities and equipment and providers of connected VoIP applications to comply with any rules and standards established; and

(B) consider the unique nature and circumstances relating to the use of such facilities and equipment in varying geographic markets and rural areas.

(b) Universal Service- Within 180 days after the date of the enactment of this Act, the Commission shall complete a proceeding to provide a contribution mechanism applicable to connected VoIP applications, which may include a collection methodology based on the assignment of telephone numbers to end users, other methodologies, or any combination thereof. In the proceeding, the Commission shall seek to ensure the preservation, enhancement, and long-term sustainability of universal service by maximizing participation in the support of universal service among the greatest number of providers of connected VoIP applications.

(c) Law Enforcement Access-

(1) Requirements regarding assistance capabilities- Effective as provided in paragraph (3)(D), each provider of a connected VoIP application shall ensure that its equipment, facilities, or services are capable of--

(A) enabling the government to intercept communications transmitted using such application and to access call-identifying information regarding communications so transmitted, and

(B) delivering such intercepted communications and call-identifying information to the government,

for the same purposes, to a similar extent, and subject to similar limitations and protections (including protections regarding privacy and security and protections ensuring access only pursuant to lawful authorization) that, under sections 103 and 105 of the Communications Assistance for Law Enforcement Act, are required of the capabilities of the equipment, facilities, or services of a telecommunications carrier.

(2) Determination regarding feasibility- Not later than 180 days after the date of the enactment of this Act, and not later than every 180 days thereafter, the Commission shall conduct a proceeding to determine whether it is technologically feasible and reasonable to commence applicability of the assistance capability requirements established under paragraph (1).

(3) Effect of determination- If the Commission, pursuant to a proceeding under paragraph (2), determines that it is technologically feasible and reasonable to commence applicability of the assistance capability requirements established under paragraph (1)--

(A) the requirement under paragraph (2) to conduct further semi-annual proceedings shall not apply after such determination;

(B) not later than 180 days after such determination, the Commission shall establish rules, technical requirements, and standards that--

(i) implement the requirements under paragraph (1);

(ii) protect the privacy and security of communications not authorized to be intercepted;

(iii) minimize the cost of such compliance on customers or subscribers;

(iv) serve the policy of the United States to encourage the provision of new technologies and services to the public; and

(v) provide a reasonable time and conditions for compliance with and the transition to any new standard;

(C) in establishing such rules, technical requirement, and standards, the Commission consult with providers of connected VoIP applications, manufacturers of equipment used by such applications, other appropriate parties providing services used in such applications, the Attorney General of the United States, and State and local law enforcement agencies; and

(D) the requirement under paragraph (1) shall take effect upon the expiration of the 180-day period beginning upon such determination.

SEC. 5. VOLUNTARY INDUSTRY CONSENSUS PROCESS REGARDING OTHER CONNECTED VOIP OBLIGATIONS.

(a) Voluntary Process- The Commission shall appoint an appropriate representative industry organization or organizations which shall, within 180 days after the date of the enactment of this Act, develop, as applicable, consensus guidelines, protocols, or performance requirements pertaining to the offering or provision of connected VoIP applications for--

(1) providing comparable capabilities to 911 and enhanced 911 services;

(2) improving use by the disabled community;

(3) improving reliability of voice over Internet protocol applications; and

(4) ensuring appropriate security for the application and voice communications.

(b) Information to Customers- A provider of a connected VoIP application that does not provide for its customers services that are comparable to 911 service and enhanced 911 service shall provide a clear and conspicuous notice of the failure to provide such services to each customer prior to the offering of the application to that customer.

(c) Technical Support- The Commission shall provide technical support, as appropriate, to the organization selected pursuant to subsection (a).

SEC. 6. COMMISSION REVIEW.

Beginning in 2005, the Commission shall provide a report to the Congress not less than biennially indicating any regulatory obligations that it recommends be enacted on the offering or provision of a VoIP application, including nondiscriminatory treatment for processing or treatment of digital packets.

SEC. 7. NO STATE OR LOCAL TAXATION OF VOIP APPLICATIONS.

(a) In General- No State or political subdivision shall impose any tax, fee, surcharge, or other charge for the purpose of generating revenues for governmental purposes on the offering or provision of a VoIP application.

(b) Exemption- Subsection (a) shall not apply to a fee imposed for a specific privilege, service, or benefit conferred.

SEC. 8. NO IMPACT ON TRANSMISSION FACILITIES.

Nothing in this Act shall affect the authority of the Commission or any State commission to regulate the transmission facilities used to transmit a voice communication of a VoIP application. This section may not be construed to authorize the Commission or any State to regulate the offering or provision of a VoIP application by regulating such transmission facilities.

SEC. 9. FTC AUTHORITY.

(a) In General- Except as provided in subsection (b), nothing in this Act shall be constructed to affect the authority of the Federal Trade Commission to prevent unfair or deceptive acts or practices.

(b) Regulations Excluded- Subsection (a) does not authorize the Federal Trade Commission to issue any regulations to implement this Act.

SEC. 10. DEFINITIONS.

(a) In General- For purposes of this Act:

(1) Commission- The term `Commission' means the Federal Communications Commission.

(2) Connected voip application- The term `connected VoIP application' means a VoIP application that is capable of receiving voice communications from or sending voice communications to the public switched telephone network, or both.

(3) Customer- The term `customer' includes a consumer of goods or services whether for a fee, in exchange for an explicit benefit, or provided for free.

(4) Regulate- The term `regulate' includes taking any governmental action that restricts, prohibits, limits, or burdens, or imposes any obstacle, obligation, or duty, or interferes with, an application.

(5) Universal service- The term `universal service' has the meaning given such term by section 254(c) of such Act (47 U.S.C. 254(c)).

(6) Voice-over-internet-protocol application; voip application-

(A) In general- The terms `Voice-over-Internet-protocol application' and `VoIP application' mean the use of software, hardware, or network equipment for real-time 2-way or multidirectional voice communications over the public Internet or a private network utilizing Internet protocol, or any successor protocol, in whole or part, to connect users notwithstanding--

(i) the underlying transmission technology used to transmit the communications;

(ii) whether the packetizing and depacketizing of the communications occurs at the customer premise or network level; or

(iii) the software, hardware, or network equipment used to connect users.

(B) Exclusion- The term does not include an application that is used for voice communications that both originate and terminate on the public switched telephone network.

(b) Common Terminology- Except as otherwise provided in subsection (a), terms used in this Act shall have the meaning provided under section 3 of the Communications Act of 1934.

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