[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2281 Reported in Senate (RS)]






                                                       Calendar No. 812
108th CONGRESS
  2d Session
                                S. 2281

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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 5, 2004

  Mr. Sununu introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

                           November 19, 2004

               Reported by Mr. McCain, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    (a) Short Title.--This Act may be referred to as the 
``VOIP Regulatory Freedom Act of 2004''.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 2. ASSERTION OF FEDERAL JURISDICTION.</DELETED>

<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

<DELETED>SEC. 3. PREEMPTION OF BROAD FCC AUTHORITY.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 4. FCC AUTHORITY REGARDING CONNECTED VOIP 
              APPLICATIONS.</DELETED>

<DELETED>    (a) Interprovider Compensation.--</DELETED>
        <DELETED>    (1) Explicit ban on access charges.--The offering 
        or provision of a VOIP application shall not be subject to part 
        69 of the Commission's rules (47 C.F.R. 69) or successor 
        charges.</DELETED>
        <DELETED>    (2) Alternate mechanism.--Paragraph (1) shall not 
        be construed to prevent the Commission from establishing a 
        compensation mechanism for providers of VOIP applications based 
        on--</DELETED>
                <DELETED>    (A) the mutual recovery of costs through 
                reciprocal obligations; or</DELETED>
                <DELETED>    (B) arrangements that waive mutual 
                recovery (such as bill-and-keep 
                arrangements).</DELETED>
        <DELETED>    (3) Single regime required.--The Commission may 
        not impose a compensation mechanism based on the mutual 
        recovery of costs through reciprocal obligations, pursuant to 
        paragraph (2)(B), unless or until the Commission has 
        established a single unified regime for the sending and 
        receiving of all data and voice communications.</DELETED>
        <DELETED>    (4) Private negotiations.--Nothing in paragraph 
        (2) shall be construed to prevent connected VOIP application 
        providers from negotiating acceptable arrangements for mutual 
        recovery of costs for the sending or receiving of voice 
        communications of a connected VOIP application.</DELETED>
<DELETED>    (b) Universal Service.--</DELETED>
        <DELETED>    (1) Commission authority.--The Commission shall 
        ensure that all providers of a connected VOIP application 
        contribute, directly or indirectly, to the preservation and 
        advancement of Federal universal service programs based on a 
        flat fee, which could include a collection methodology based on 
        the assignment of telephone numbers to end users.</DELETED>
        <DELETED>    (2) Exemption.--The Commission may exempt from 
        contributing, pursuant to paragraph (1), any use or category of 
        uses of connected VOIP application.</DELETED>
<DELETED>    (c) Access to Information by Law Enforcement.--The 
Commission shall require a provider of a connected VOIP application to 
provide access to necessary information to law enforcement agencies not 
less than that required of information service providers.</DELETED>
<DELETED>    (d) Implementation of Rules.--Not later than 180 days 
after the date of enactment of this Act, the Commission shall take all 
necessary action to implement this section.</DELETED>

<DELETED>SEC. 5. VOLUNTARY INDUSTRY CONSENSUS PROCESS REGARDING OTHER 
              CONNECTED VOIP OBLIGATIONS.</DELETED>

<DELETED>    (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--</DELETED>
        <DELETED>    (1) providing comparable capabilities to 911 and 
        enhanced 911 services;</DELETED>
        <DELETED>    (2) improving use by the disabled 
        community;</DELETED>
        <DELETED>    (3) improving reliability of voice over Internet 
        protocol applications; and</DELETED>
        <DELETED>    (4) ensuring appropriate security for the 
        application and voice communications.</DELETED>
<DELETED>    (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.</DELETED>
<DELETED>    (c) Technical Support.--The Commission shall provide 
technical support, as appropriate, to the organization selected 
pursuant to subsection (a).</DELETED>

<DELETED>SEC. 6. COMMISSION REVIEW.</DELETED>

<DELETED>    Beginning in 2005, the Commission shall provide a report 
to 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.</DELETED>

<DELETED>SEC. 7. NO TAXATION OF VOIP APPLICATIONS.</DELETED>

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

<DELETED>SEC. 8. NO IMPACT ON TRANSMISSION FACILITIES.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 9. FTC AUTHORITY.</DELETED>

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

<DELETED>SEC. 10. DEFINITIONS.</DELETED>

<DELETED>    (a) In General.--For purposes of this Act:</DELETED>
        <DELETED>    (1) Commission.--The term ``Commission'' means the 
        Federal Communications Commission.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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)).</DELETED>
        <DELETED>    (6) Voice-over-internet-protocol application; voip 
        application.--</DELETED>
                <DELETED>    (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--</DELETED>
                        <DELETED>    (i) the underlying transmission 
                        technology used to transmit the 
                        communications;</DELETED>
                        <DELETED>    (ii) whether the packetizing and 
                        depacketizing of the communications occurs at 
                        the customer premise or network level; 
                        or</DELETED>
                        <DELETED>    (iii) the software, hardware, or 
                        network equipment used to connect 
                        users.</DELETED>
                <DELETED>    (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.</DELETED>
<DELETED>    (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.</DELETED>

SECTION 1. SHORT TITLE.

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

SEC. 2. ASSERTION OF FEDERAL JURISDICTION.

    (a) In General.--Notwithstanding any other provision of law, 
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) Preservation of Consumer Protection.--Nothing in this Act shall 
be construed to affect the authority of a State to enact or enforce 
criminal laws or regulations of general applicability regarding doing 
business in that State, consumer protection, or unfair or deceptive 
trade practices.
    (d) 911 and Enhanced-911 Services Jurisdiction.--Notwithstanding 
any other provision of law, nothing in this Act limits--
            (1) State jurisdiction of 9-1-1 or enhanced 9-1-1 services, 
        including State jurisdiction over connected VOIP applications 
        with respect to 9-1-1 and enhanced 9-1-1 services; or
            (2) the ability of State and local governments to require 
        providers of all connected VOIP applications to collect fees to 
        support the provision of 9-1-1 or enhanced 9-1-1 services.
    (e) Preservation of Universal Service and Interprovider 
Compensation.--Nothing in this Act shall be construed to exempt 
providers of a VOIP application from requirements imposed by a State 
commission on all providers of telecommunications services--
            (1) to pay appropriate compensation for the transmission of 
        a VOIP application over the facilities and equipment of another 
        provider; or
            (2) to contribute on an equitable and nondiscriminatory 
        basis to the preservation and advancement of universal service.

SEC. 3. NO IMPACT ON TRANSMISSION FACILITIES.

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

SEC. 4. 9-1-1 AND ENHANCED 9-1-1 SERVICES.

    (a) Commission Authority.--Not later than 180 days after the date 
of enactment of this Act, the Commission shall conclude a proceeding 
establishing rules to ensure that all providers of connected VOIP 
applications provide, to the extent technically feasible and not 
economically unreasonable, 9-1-1 and enhanced 9-1-1 services comparable 
to those provided by other telecommunications carriers.
    (b) Reports to Congress.--No later than the first day of October, 
2005, and each year thereafter, the Commission shall transmit a report 
to the Senate Committee on Commerce, Science, and Transportation and 
the House of Representatives Committee on Energy and Commerce on the 
progress of enhanced 9-1-1 implementation for connected VOIP 
applications. In its report, the Commission shall include summaries of 
comments it has received from the public regarding the performance of 
connected VOIP application providers in providing 9-1-1 and enhanced 9-
1-1 services and examine issues related to non-discriminatory access 
between connected VOIP applications and incumbent 911 networks and data 
systems.

SEC. 5. LAW ENFORCEMENT.

    (a) In General.--Nothing in this Act shall be construed to modify, 
impair, or supersede the Communications Assistance for Law Enforcement 
Act (47 U.S.C. 1001 et seq.) or the authority of the Commission 
thereunder, nor shall anything in this Act alter the obligation of a 
provider of a VOIP application to furnish to an authorized law 
enforcement agency, pursuant to a court order under chapter 119 or 206 
of title 18, United States Code (or comparable provisions of State 
law), or under the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1801 et seq.), all information, facilities, and technical 
assistance necessary to accomplish an interception or the installation 
of a pen register or trap and trace device.
    (b) GAO Report.--Not later than 6 months after the date of the 
enactment of this Act, the Comptroller General shall submit a report to 
the Senate Committee on Commerce, Science, and Transportation, the 
Senate Committee on the Judiciary, the House of Representatives 
Committee on Energy and Commerce, and the House of Representatives 
Committee on the Judiciary that includes--
            (1) an assessment of law enforcement's current technical 
        capability to intercept and analyze communications over the 
        public Internet or using the Internet protocol;
            (2) an assessment of problems, if any, law enforcement has 
        encountered in intercepting or analyzing communications over 
        the public Internet or using the Internet protocol;
            (3) a description of options for addressing any such 
        problems, including such options as capability requirements or 
        providing additional resources for law enforcement agencies to 
        acquire the skills and equipment to analyze Internet 
        communications;
            (4) an evaluation of such options for different 
        configurations of broadband access, connected VOIP service, and 
        VOIP applications in terms of effectiveness, effect on 
        innovation, effect on privacy, and the cost to consumers; and
            (5) an assessment of the first 10 years of implementation 
        of the Communications Assistance for Law Enforcement Act (47 
        U.S.C. 1001 et seq.), including--
                    (A) an assessment of the level of compliance with 
                that Act within different segments of the 
                communications industry and an identification of the 
                reasons for less-than-full compliance in particular 
                segments of the industry;
                    (B) a cost-benefit analysis of the impact of that 
                Act on the communications industry, including the costs 
                expended by industry to implement specific 
                capabilities, the frequency of use by law enforcement 
                of those features and the impact on privacy, including 
                the changes, if any, in the nature or frequency of law 
                enforcement's interception of transactional 
                information; and
                    (C) an assessment of the degree of representation 
                and involvement of consumer or user organizations in 
                the standards development process.
    (c) FCC Study.--Not later than 6 months after the date of the 
enactment of this Act, the Federal Communications Commission shall 
submit a report to the Committees to which reference is made in 
subsection (b) that includes an assessment of the first 10 years of 
implementation of the Communications Assistance for Law Enforcement Act 
(47 U.S.C. 1001 et seq.) in terms of the technical standards 
development process as it related to that Act; the impact of that Act's 
procedures on the telecommunications industry, on law enforcement, and 
on privacy; and the Commission's views as to what the definitions and 
requirements of that Act would mean if applied to Internet 
communications.

SEC. 6. EXPIRATION.

    This Act shall cease to be effective 3 years after the date of 
enactment.

SEC. 7. DEFINITIONS.

    In this Act:
            (1) Voice-over-internet-protocol application; voip 
        application.--The terms ``voice-over-Internet-protocol 
        application'' and ``VOIP application''--
                    (A) 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; but
                    (B) do not include an application that is used 
                solely for voice communications that both originate and 
                terminate on the public switched telephone network.
            (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.
                                                       Calendar No. 812

108th CONGRESS

  2d Session

                                S. 2281

_______________________________________________________________________

                                 A BILL

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.

_______________________________________________________________________

                           November 19, 2004

                       Reported with an amendment