**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS,**

**DISSENTING**

Re: *Petition for Declaratory Ruling that Pulver.com's Free World Dialup
is Neither*

*Telecommunicaitons Nor a Telecommunications Service*, Memorandum
Opinion

and Order (WC Docket No. 03-45)

In this Order, we leap before we look. The Commission declares that Free
World Dialup is an information service but does not address any of the
consequences of its decision. This headlong jump into Title I presents
stark challenges for law enforcement and has implications for universal
service, public safety and state and federal relationships that we have
yet to untangle or assess. Under these circumstances I believe it is
reckless to proceed and I cannot support this decision at this time.

Two years ago, when the Commission set out to reclassify wireline
broadband Internet access, I suggested it was irresponsible to do so
without addressing the larger implications of our decision. Shortly
thereafter, the Commission proceeded down the identical path in a
declaratory ruling reclassifying cable modem service. My objections were
the same. We said we were conferring certainty to business, but the
decision has been overturned in court, confusion still reigns and the
larger questions remain unanswered.

Yet here we go again. Like before, our approach is backwards. With
bugles blaring, we pronounce the classification of a service, but leave
the hard part---understanding the consequences---for another day and
time.

I would dissent to this item purely on law enforcement and national
security grounds. The Communications Assistance for Law Enforcement Act
(CALEA) expressly exempts entities providing information services from
complying with law assistance capability requirements. No assurances
from companies, statements from this Commission or last-minute letters
from an Executive Branch agency have yet demonstrated a satisfactory
solution to this thorny problem. On January 28, the Federal Bureau of
Investigation sent a letter clearly requesting that the Commission
complete a rulemaking on CALEA "prior to the other related but non-CALEA
specific broadband proceedings." Otherwise, the letter pointed out, the
outcome of our broadband classification decisions "could serve to
prejudice" law enforcement's rights under CALEA. This letter urged us to
stop in our tracks. It urged us to resolve national security needs
before moving ahead. Even in a more, shall we say forthcoming letter of
February 4, the Department of Justice stated that "\[w\]hile it would
obviously be our preference that the FCC decide these issues prior to
considering other broadband proceedings, we recognize that this is not
practical." Both letters are part of the public record.

I met with both the Federal Bureau of Investigation and the Department
of Justice, but I think anyone who reads this correspondence will be
left with the indelible impression that law enforcement strongly prefers
that the Commission resolve outstanding CALEA matters ***before***
proceeding with any further broadband reclassification efforts. I do not
understand why it is not practical to pause and resolve these concerns
before proceeding to categorize Free World Dialup service. The majority
apparently prefers to act now and fix law enforcement issues
later---along with universal service, public safety, disability access
and a host of other policies we are only today beginning to address in a
related rule-making on IP-enabled services. This rush to reclassify
will, I fear, lead us down a road wherein we are compelled to engage in
legal calisthenics and contortion of both CALEA and the 1996 Act in
order to meet our statutory obligations.

This petition has been in front of the Commission for over a year. It
***is*** an important decision -- but not so important that it cannot
wait a little while longer while we conduct an expeditious review of the
problems that a too hasty decision could bring.