A Look Back At The Pulver Order

I had a lot of fun moderating the 20th Anniversary of the Pulver Order event last week at The National Press Club in Washington D.C. During the two hours of panels, we unraveled the FCC’s Pulver Order and in turn, providing a comprehensive look at its implications and the preceding legal quagmire and the post order outcomes that really changed things for so many of us.

To get started, you need to first understand the role of The Federal Communications Commission (FCC) as the independent agency of the United States government entrusted with the regulation of interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia, and U.S. territories. Back in 2004, the FCC issued a landmark ruling that significantly influenced the way we communicate over the internet: the Pulver Order. But to understand The Pulver Order we need to first delve into the intricacies of this order, its ramifications, and the legal battle that ensued prior to its inception.

Background: The VoIP Debate

To comprehend the Pulver Order’s significance, it is vital to understand the context in which it was established. The debate revolved around Voice over Internet Protocol (VoIP), a technology that enables voice communications (such as telephone calls) to be transmitted via the internet. VoIP had been gaining traction, and the FCC had yet to establish clear-cut regulations for this burgeoning technology.

The Legal Battle: Brand X Internet Services v. FCC

The stage was set for the Pulver Order by the 2002 United States Court of Appeals for the Ninth Circuit’s decision in Brand X Internet Services v. FCC. The court held that cable modem service offered by cable companies was an “information service” rather than a “telecommunications service” under the Communications Act of 1934. This decision exempted cable modem service from common carrier regulation, meaning cable companies were not subject to the same obligations as traditional telecommunications carriers.

The Pulver Order: A New Era for Internet Communication

On March 11, 2004, the FCC released the Pulver Order, named by the team then working with FCC Commissioner Michael Powell, a staunch advocate for deregulation. The order classified VoIP services as “information services” instead of “telecommunications services,” aligning it with the Brand X decision. This classification meant that VoIP providers were not considered common carriers and were not subject to the same regulations as traditional telecommunications carriers.

Implications of the Pulver Order

The Pulver Order had several significant implications for the telecommunications industry:

  1. Deregulation: By classifying VoIP as an information service, the FCC adopted a lighter regulatory touch. This decision allowed VoIP providers to innovate and grow without being encumbered by the same regulations as traditional telecommunications carriers.
  2. Competition: The Pulver Order fostered a more competitive market by enabling VoIP providers to enter the market and challenge the dominance of incumbent telecommunications companies.
  3. Net Neutrality: The order laid the groundwork for the net neutrality debate. Classifying VoIP as an information service meant that the FCC had less authority to regulate how internet service providers managed their networks, potentially leading to a debate over whether ISPs could prioritize certain types of internet traffic.

Unintended Consequences: The VoIP 911 Problem

While the Pulver Order had several positive implications, it also had unintended consequences. One such consequence was the VoIP 911 problem. Since VoIP was not considered a telecommunications service, VoIP providers were not required to comply with Enhanced 911 (E911) regulations. This led to instances where 911 calls made from VoIP phones could not be traced, posing a significant public safety risk.

The FCC addressed this issue by issuing the Wireline E911 Order in 2005, which required VoIP providers to transmit all 911 calls, and customer location information, to the appropriate Public Safety Answering Point (PSAP).

The FCC’s Pulver Order marked a turning point in the regulation of internet communication. By classifying VoIP as an information service, the FCC fostered a more competitive market, encouraged innovation, and paved the way for the net neutrality debate. Understanding the Pulver Order’s intricacies is essential for anyone interested in the evolution of telecommunications policy and the ongoing efforts to regulate the internet.