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 Federal  Communications  Commission  FCC  04-  27 
 DISSENTING  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 


 Re:  Petition  for  Declaratory  Ruling  that  pulver.  coms  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  enforcements  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 
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 Federal  Communications  Commission  FCC  04-  27 
 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. 


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