• All providers of interconnected fixed or non-nomadic Voice over Internet Protocol (VoIP) services as of December 1, 2010 will be required to register with the Illinois Commerce Commission (ICC) by January 1, 2011, in accordance with 220 ILCS 5/13-401.1. Thereafter, new providers will be required to register with the ICC at least 30 days prior to their provision of service within Illinois. The ICC has posted a copy of the registration form here.
  • Both the Maine Public Service Commission (Maine PSC) and the Vermont Public Service Board (Vermont PSB) have issued orders asserting jurisdiction over “fixed” Voice over Internet Protocol (VoIP) services offered within these states.
    • On October 27, 2010, the Maine PSC held that the VoIP services offered by Time Warner Digital Cable Telephone, LLC (TWDC) and Comcast Phone of Maine, LLC (Comcast-ME) fall within the definition of “telephone services” under Maine law and, therefore, are subject to the PSC’s jurisdiction. The PSC made its evaluation in two parts. First, it determined whether the services fell within the statutory definition of “telephone service,” which is “the offering of a service that transmits communications by telephone, whether the communications are accomplished with or without the use of transmission wires.” In its order, the PSC stated that this definition is “entirely agnostic with respect to how the call is transmitted or processed” and that the VoIP services in these instances are offered as a substitute for traditional telephone service. Further, the PSC stated, the experience of placing and receiving a VoIP call is “indistinguishable” from calls placed or received from a traditional circuit-switched telephone. “In light of these fundamental similarities in service, we are hard-pressed to see how the purposes of the regulatory system... would be advanced by and interpretation of a ‘telephone service’ that did not include VoIP service.”

The Maine PSC then turned to the question of preemption. Both Comcast-ME and TWDC argued that the PSC was preempted from asserting jurisdiction over their VoIP services by federal law. The PSC, however, relied upon the Eighth Circuit’s decision in Minn. Pub. Utils Comm’n v. FCC, 483 F.3d 570 (8th Cir. 2007), which noted the “practical impossibility of severing the intrastate from the interstate aspects of nomadic VoIP service” that permitted federal preemption of state regulation. The PSC found that here, by contrast, the “fixed” VoIP services offered by Comcast-ME and TWDC are provided in such a way that the end points can be determined. A copy of the Maine PSC’s order can be found here (Docket No. 2008-421).

The next day, October 28, 2010, the Vermont PSB issued a similar order in its Investigation Into the Regulation of Voice over Internet Protocol (VoIP) Services, finding that “fixed” VoIP services are “telecommunications services” under Vermont state law, and, accordingly, fall under the jurisdiction of the PSB. However, the PSB’s order also stated that its jurisdiction over nomadic VoIP services, such as Vonage’s DigitalVoice service and AT&T’s CallVantage, is preempted by federal law. Under the Vermont statute, “telecommunications service” is defined as “the transmission of any interactive two-way electromagnetic communications, including voice image, data and information.” The PSB found that the definition would include “transmission of electromagnetic signals through the use of any media such as wires, cables, television cables, microwaves, radio waves, light waves or any combination of those similar media.”

The Vermont PSB then concluded that fixed VoIP services, which require an end user to use a geographically specific telephone number, allow for the provider to distinguish between the interstate and intrastate components of the service and therefore would fall under the jurisdiction of the PSB. Conversely, nomadic VoIP services are “impossible” to separate into interstate and intrastate components and therefore remain subject to the exclusive jurisdiction of the FCC.

In a second phase of the proceeding, the PSB plans to look at the policy considerations of its order, such as how it should exercise its jurisdiction over VoIP services. A copy of the order may be found here (Docket No. 7316).