wwigen's blog

The following was contributed by Dr. William E. Lewis from ASU on Nov. 2, 2007:

(The following is a response to questions asked by a reporter from ESchoolNews)

I attended a meeting yesterday to review the NPRM with other concerned organizations. The general feeling around the table was:

• The FCC has based their ruling on "weak" legal arguments that are challengeable.
• The FCC is extending CALEA compliance to the Internet but only so far as the rules of the original statute still apply, such as, in the original only "common carriers" (commercial telecom providers) were subject therefore only commercial broadband access providers would be subject to it under the new ruling
• The definition and use of the "substantial replacement" clause in the original CALEA Statute is at best difficult to understand and at worst so huge that it literally pulls in all broadband service providers including possibly the higher education community. It focuses not on the "voice" aspect as much as the fact that broadband now replaces dial-up Internet access. (I will get more on this as I attempt to understand it)

On a positive note: The FCC read our comments and made note of them in the NPRM: "We note that establishments acquiring broadband Internet access to permit their patrons to access the Internet do not appear to be covered by CALEA (assuming they were otherwise "telecommunications carriers" under CALEA). Examples of these entities include schools, libraries, hotels, coffee shops, etc. See e.g., American Association of Community Colleges et al. Comments at 15-20 (discussing the deterrent effect and cost of potential CALEA obligations)" (Pg 29 Footnote #133 of the NPRM) BTW: We are referred to as the American Assoc... because they were the first in the list of our 13 coalition partners.

What this means for us: EDUCAUSE will be filing additional comments with the legal assistance of Al Gidari. They will reinforce our previous comments and build on the "do not appear to be covered..." statement in the above footnote. We need to remain active in the process to insure our ineligibility in the final ruling. The legal arguments facing the FCC could mean this moves over to Congress as we originally had hoped for... but that depends on how strongly the opposition is willing to fight; many of the ISPs seem already resigned to compliance.

The FCC Commissioners hinted at the contents of their Notice of Public Rulemaking (expected out in a few weeks) as it was sent to the board for approval today. Chairman Powell delivered a statement implying that the FCC agrees that any facility-based entity that provides connection to the public Internet would be required to comply with CALEA. "Non-managed or disintermediated" VoIP or IM services will remain exempt. At this point, we assume this means campuses will be required to comply.

The rulemaking promises to explore cost and compliance issues. There are two major questions: 1) what about reliance on a third-party to manage CALEA compliance obligations; and, 2) the standards (who sets them and are they good enough).

Powell did assert that these findings do not in any way declare VoIP a telecommunications service for regulations purposes, something that is being discussed in other proceedings.

EDUCAUSE will continue to pursue the cost/benefit analysis argument. Can law enforcement justify the cost of compliance based on their need to wiretap?

Sununu's VoIP bill as amended turns out to be a bust... even Jeff Pulver (speaking for the Voice over the Net Coalition 'VON) this morning announced they would now vote against it if given the chance. Basically I feel the amendments cancel each other out, or create a stalemate, whichever you prefer. There is hope that the similar bill proposed in the House, with Sununu's help, could make some headway this fall and recapture some of the ground lost to the the rural carriers.

But the conversation continues.... at the FCC this morning (July 30) there was a roundtable discussing VoIP from an international perspective. Very interesting and informative... if you think our regulators have problems you should hear the gentleman representing telecom in Latin America. VoIP is actually illegal in some LAmerican countries and users are fined heavily if caught. The incumbent telecoms, often govt owned or at least propped up by same, are heavily protected and VoIP is viewed as a direct challenge to their control. The exception is Chile; they will be passing their first VoIP 'friendly' regs in the next few weeks. Mexico actually receives the most VoIP calls of all countries outside the US (I imagine all the Mexican nationals phoning home from the US using international phone cards that are primarily IP based).

Another interesting fact from Mary Brown of Cisco. They think of VoIP in three stages: 1. Long haul has made the transition to VoIP with few exceptions 2. Corporate is in transition 3. Residential is a distant third.

Summary of major barriers to VoIP that were mentioned: penetration rate of broadband; regulatory uncertainty (we are simply trying for Federal jurisdiction... international players are fighting different regimes); cost and control of access to local networks (intercarrier charges on an international scale);lack of communication between government and the industry; and the numbering system.

Major strategy theme: Let the market work and only regulate where absolutely necessary. Facilitate industry cooperation on peering (carrying each other's traffic) and standards.

How to maintain local networks during the transition to IP is a worldwide problem; but arbitrage is the mother of invention.

EDUCAUSE is preparing a letter to send to several members of the Senate Commerce Committee showing support for Senator Sununu's VoIP bill scheduled for mark-up next Tuesday, July 20. The letter will be hand-delivered to their offices tomorrow morning.