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 Federal  Communications  Commission  FCC  04-  267 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 Vonage  Holdings  Corporation  Petition  for  Declaratory  Ruling  Concerning  an 
 Order  of  the  Minnesota  Public  Utilities  Commission 

 )  ) 
 )  ) 
 )  ) 
 WC  Docket  No.  03-  211 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  November  9,  2004  Released:  November  12,  2004 
 By  the  Commission:  Chairman  Powell  and  Commissioner  Abernathy  issuing  separate  statements;  Commissioners  Copps  and  Adelstein  concurring  and  issuing  separate  statements. 

 TABLE  OF  CONTENTS  Paragraph 
 I.  INTRODUCTION.......................................................................................................................................  1  II.  BACKGROUND..........................................................................................................................................  3 
 A.  Vonages  DigitalVoice  Service  ..........................................................................................................  4  B.  History  of  Vonages  Petition  ............................................................................................................  10 
 III.  DISCUSSION.............................................................................................................................................  14  A.  Preemption  of  the  Minnesota  Vonage  Order  ...................................................................................  15 
 1.  Commission  Jurisdiction  over  DigitalVoice..........................................................................  16  2.  Commission  Authority  To  Preempt  State  Regulations  .........................................................  19 
 3.  Conflict  With  Commission  Rules  and  Policies......................................................................  20  4.  Preemption  Based  on  Impossibility....................................................................................  23 
 5.  Policies  and  Goals  of  the  1996  Act  Consistent  With  Preemption  of  Minnesotas  Regulations..............................................................................................................................  33 
 B.  Commerce  Clause  .............................................................................................................................  38  C.  Public  Safety  Issues...........................................................................................................................  42 
 IV.  CONCLUSION..........................................................................................................................................  46  V.  ORDERING  CLAUSES...........................................................................................................................  47 
 APPENDIX    LIST  OF  COMMENTERS 
 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order  (Order),  we  preempt  an  order  of  the  Minnesota  Public  Utilities  Commission  (Minnesota  Commission)  applying  its  traditional  telephone  company  regulations 

 to  Vonages  DigitalVoice  service,  which  provides  voice  over  Internet  protocol  (VoIP)  service  and  other  communications  capabilities.  We  conclude  that  DigitalVoice  cannot  be  separated  into  interstate  and 
 intrastate  communications  for  compliance  with  Minnesotas  requirements  without  negating  valid  federal  policies  and  rules.  In  so  doing,  we  add  to  the  regulatory  certainty  we  began  building  with  other  orders 
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 adopted  this  year  regarding  VoIP    the  Pulver  Declaratory  Ruling  1  and  the  AT&  T  Declaratory  Ruling  2    by  making  clear  that  this  Commission,  not  the  state  commissions,  has  the  responsibility  and  obligation  to 
 decide  whether  certain  regulations  apply  to  DigitalVoice  and  other  IP-  enabled  services  having  the  same  capabilities.  For  such  services,  comparable  regulations  of  other  states  must  likewise  yield  to  important 
 federal  objectives.  Similarly,  to  the  extent  that  other  VoIP  services  are  not  the  same  as  Vonages  but  share  similar  basic  characteristics,  we  believe  it  highly  unlikely  that  the  Commission  would  fail  to 
 preempt  state  regulation  of  those  services  to  the  same  extent.  3  We  express  no  opinion  here  on  the  applicability  to  Vonage  of  Minnesotas  general  laws  governing  entities  conducting  business  within  the 
 state,  such  as  laws  concerning  taxation;  fraud;  general  commercial  dealings;  and  marketing,  advertising,  and  other  business  practices.  We  expect,  however,  that  as  we  move  forward  in  establishing  policy  and 
 rules  for  DigitalVoice  and  other  IP-  enabled  services,  states  will  continue  to  play  their  vital  role  in  protecting  consumers  from  fraud,  enforcing  fair  business  practices,  for  example,  in  advertising  and 
 billing,  and  generally  responding  to  consumer  inquiries  and  complaints. 
 2.  Our  decision  today  will  permit  the  industry  participants  and  our  colleagues  at  the  state  commissions  to  direct  their  resources  toward  helping  us  answer  the  questions  that  remain  after  todays 

 Order    questions  regarding  the  regulatory  obligations  of  providers  of  IP-  enabled  services.  We  plan  to  address  these  questions  in  our  IP-  Enabled  Services  Proceeding  4  in  a  manner  that  fulfills  Congresss 
 directions  to  promote  the  continued  development  of  the  Internet  5  and  to  encourage  the  deployment  of  advanced  telecommunications  capabilities.  6  Meanwhile,  this  Order  clears  the  way  for  increased 
 investment  and  innovation  in  services  like  Vonages  to  the  benefit  of  American  consumers. 
 II.  BACKGROUND 
 3.  On  September  22,  2003,  Vonage  filed  a  petition  for  declaratory  ruling  7  requesting  that  the  Commission  preempt  an  order  of  the  Minnesota  Commission  imposing  regulations  applicable  to  providers 

 of  telephone  service  on  Vonages  DigitalVoice.  8 

 1  Petition  for  Declaratory  Ruling  that  pulver.  coms  Free  World  Dialup  is  Neither  Telecommunications  Nor  a 
 Telecommunications  Service,  WC  Docket  No.  03-  45,  Memorandum  Opinion  and  Order,  19  FCC  Rcd  3307  (2004)  (Pulver  Declaratory  Ruling  or  Pulver). 

 2  Petition  for  Declaratory  Ruling  that  AT&  Ts  Phone-  to-  Phone  IP  Telephony  Services  are  Exempt  from  Access 
 Charges,  WC  Docket  No.  02-  361,  Order,  19  FCC  Rcd  7457  (2004)  (AT&  T  Declaratory  Ruling).  3 
 See  infra  para.  31  and  notes  93,  113  (referring  to  VoIP  services  of  other  providers,  including  facilities-  based  providers). 

 4  IP-  Enabled  Services,  WC  Docket  No.  04-  36,  Notice  of  Proposed  Rulemaking,  19  FCC  Rcd  4863  (2004) 
 (IP-  Enabled  Services  Proceeding).  5 
 47  U.  S.  C.    230(  b)(  1).  6 
 47  U.  S.  C.    157  nt.  (incorporating  section  706  of  the  Telecommunications  Act  of  1996  (1996  Act)).  7 
 See  Vonage  Holdings  Corporation  Petition  for  Declaratory  Ruling  Concerning  an  Order  of  the  Minnesota  Public  Utilities  Commission,  WC  03-  211  (filed  Sept.  22,  2003)  (Vonage  Petition).  The  Commission  requested  and 

 received  comment  on  the  Vonage  Petition.  See  Pleading  Cycle  Established  for  Comments  on  Vonage  Petition  for  Declaratory  Ruling,  WC  Docket  No.  03-  211,  Public  Notice,  18  FCC  Rcd  19325  (2003).  See  Appendix  for  a  list  of 
 commenters. 
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 A.  Vonages  DigitalVoice  Service 
 4.  DigitalVoice  is  a  service  9  that  enables  subscribers  to  originate  and  receive  voice  communications  and  provides  a  host  of  other  features  and  capabilities  that  allow  subscribers  to  manage  their  personal 

 communications  over  the  Internet.  10  By  enabling  the  sending  and  receiving  of  voice  communications  and  providing  certain  familiar  enhancements  like  voicemail,  DigitalVoice  resembles  the  telephone  service 
 provided  by  the  circuit-  switched  network.  But  as  described  in  detail  here,  there  are  fundamental  differences  between  the  two  types  of  service. 

 5.  First,  Vonage  customers  must  have  access  to  a  broadband  connection  to  the  Internet  to  use  the  service.  11  Because  Vonage  does  not  offer  Internet  access  services,  DigitalVoice  customers  must  obtain  a 
 broadband  connection  to  the  Internet  from  another  provider.  12  In  marked  contrast  to  traditional  circuit-switched  telephony,  however,  it  is  not  relevant  where  that  broadband  connection  is  located  or  even 
 whether  it  is  the  same  broadband  connection  every  time  the  subscriber  accesses  the  service.  Rather,  Vonages  service  is  fully  portable;  customers  may  use  the  service  anywhere  in  the  world  where  they  can 
 find  a  broadband  connection  to  the  Internet.  13  According  to  Vonage,  it  does  not  know  where  in  the  world  its  users  are  when  using  DigitalVoice.  14 

 8  In  the  Matter  of  Complaint  of  the  Minnesota  Department  of  Commerce  Against  Vonage  Holding  Corp.  Regarding 
 Lack  of  Authority  to  Operate  in  Minnesota,  Docket  No.  P-  6214/  C-  03-  108,  Order  Finding  Jurisdiction  and  Requiring  Compliance  (issued  Sept.  11,  2003)  (Minnesota  Vonage  Order). 

 9  DigitalVoice  provides  VoIP,  among  other  capabilities.  Although  the  Commission  has  adopted  no  formal  definition 
 of  VoIP,  we  use  the  term  generally  to  include  any  IP-  enabled  services  offering  real-  time,  multidirectional  voice  functionality,  including,  but  not  limited  to,  services  that  mimic  traditional  telephony.  See  IP-  Enabled  Services 

 Proceeding,  19  FCC  at  4866,  para.  3  n.  7.  VoIP  services  are  available  in  a  number  of  different  forms.  See,  e.  g.,  Minnesota  Commission  Reply  at  3  ([  VoIP]  is  a  technology  that  has  many  current  applications  and  potentially  many 
 more  future  applications.);  see  also  Availability  of  Advanced  Telecommunications  Capability  in  the  United  States,  GN  Docket  No.  04-  54,  Fourth  Report  to  Congress,  FCC  04-  208,  at  24-  26  (rel.  Sept.  9,  2004)  (Fourth  Section  706 
 Report)  (describing  VoIP  services  generally).  10 
 We  use  the  term  Internet  in  this  Order  similarly  to  how  the  Commission  has  used  it  previously,  inclusive  of  interconnected  public,  private,  managed,  and  non-  managed  IP  networks.  See,  e.  g.,  Pulver,  19  FCC  Rcd  at  3309, 

 para.  4  (citing  GTE  Telephone  Operating  Cos.,  GTE  Tariff  No.  1,  GTOC  Transmittal  No.  1148,  CC  Docket  No.  98-  79,  Memorandum  Opinion  and  Order,  13  FCC  Rcd  22466,  22468,  para.  5  (1998)  (GTE  ADSL  Order));  see  also 
 Inquiry  Concerning  High-  Speed  Access  to  the  Internet  Over  Cable  and  Other  Facilities;  Internet  Over  Cable  Declaratory  Ruling;  Appropriate  Regulatory  Treatment  for  Broadband  Access  to  the  Internet  Over  Cable  Facilities, 
 GN  Docket  No.  00-  185;  CS  Docket  No.  02-  52,  Declaratory  Ruling  and  Notice  of  Proposed  Rulemaking,  17  FCC  Rcd  4798,  4799  n.  1  (2002)  (Cable  Modem  Declaratory  Ruling),  affd  in  part,  vacated  in  part,  and  remanded,  Brand 
 X  Internet  Services  v.  FCC,  345  F.  3d  1120  (9th  Cir.  2003),  stay  granted  pending  cert.  (April  9,  2004),  petitions  for  cert.  filed,  Nos.  04-  277  (Aug.  30,  2004),  04-  281  (Aug.  27,  2004). 
 11  See  Vonage  Petition  at  4;  Letter  from  William  B.  Wilhelm,  Jr.,  Counsel  for  Vonage,  to  Marlene  H.  Dortch, 
 Secretary,  FCC,  WC  Docket  No.  03-  211,  at  2  (filed  Oct.  1,  2004)  (Vonage  Oct.  1  Ex  Parte  Letter)  (suggesting  a  minimum  upstream  connection  speed  of  128k). 

 12  See  Vonage  Petition  at  7,  15;  Vonage  Reply  at  8.  According  to  Vonage,  its  service  operates  with  any  type  of 
 broadband  connection  (e.  g.,  cable  modem,  digital  subscriber  line,  or  satellite),  but  will  not  work  with  dial-  up  Internet  access.  See  Vonage  Petition  at  4. 

 13  See  Vonage  Petition  at  4;  Vonage  Oct.  1  Ex  Parte  Letter  at  2. 
 14  See  Vonage  Petition  at  2,  5,  28-  29. 
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 6.  Second,  Vonage  indicates  that  DigitalVoice  requires  customers  to  use  specialized  customer  premises  equipment  (CPE).  15  Customers  may  choose  among  several  different  types  of  specialized  CPE: 
 (1)  a  Multimedia  Terminal  Adapter  (MTA),  which  contains  a  digital  signal  processing  unit  that  performs  digital-  to-  audio  and  audio-  to-  digital  conversion  and  has  a  standard  telephone  jack  connection;  (2)  a  native 
 Internet  Protocol  (IP)  phone;  or  (3)  a  personal  computer  with  a  microphone  and  speakers,  and  software  to  perform  the  conversion  (softphone).  16  Although  customers  may  in  some  cases  attach  conventional 
 telephones  to  the  specialized  CPE  that  transmits  and  receives  these  IP  packets,  a  conventional  telephone  alone  will  not  work  with  Vonages  service.  17 

 7.  Third,  DigitalVoice  offers  customers  a  suite  of  integrated  capabilities  and  features  that  allows  the  user  to  manage  personal  communications  dynamically,  including  but  not  limited  to  real-  time, 
 multidirectional  voice  functionality.  18  In  addition  to  voice,  these  features  include  voicemail,  three-  way  calling,  online  account  and  voicemail  management,  and  geographically  independent  telephone 
 numbers.  19  Vonages  Real-  Time  Online  Account  Management  feature  allows  customers  to  access  their  accounts  24  hours  a  day  through  an  Internet  web  page  to  manage  their  communications  by  configuring 
 service  features,  handling  voicemail,  and  editing  user  information.  20  At  the  users  discretion,  the  user  may,  among  other  options,  play  voicemails  back  through  a  computer  or  receive  them  in  e-  mails  with  the 
 actual  message  attached  as  a  sound  file.  21  Using  other  features,  users  may  request  that  DigitalVoice  ring  simultaneously  the  users  Vonage  number  plus  any  other  number  in  the  United  States  or  Canada 
 regardless  of  who  provides  the  service  connected  with  that  other  number.  22 
 8.  Among  these  features,  DigitalVoice  provides  the  capability  to  originate  and  terminate  real-  time  voice  communications.  Once  the  CPE  and  software  are  installed  and  configured,  the  customer  may  place 

 or  receive  calls  over  the  Internet  to  or  from  anyone  with  a  telephone  number    including  another  Vonage  customer,  a  customer  of  another  VoIP  provider,  a  customer  of  a  commercial  mobile  radio  service  (CMRS) 
 provider,  or  a  user  reachable  only  through  the  public  switched  telephone  network  (PSTN).  23  In  any  case, 
 15  See  id.  at  5. 
 16  See  id.  at  5;  Vonage  Reply  at  8-  9;  see  also  8x8  Comments  at  8-  10.  Vonage  states  that  most  of  its  customers  use  an 
 MTA.  In  addition  to  the  CPE  to  convert  voice  signals,  as  a  practical  matter,  most  users  also  require  a  router.  See  Vonage  Petition  at  5. 

 17  See  Vonage  Petition  at  5;  Vonage  Reply  at  8  ([  A]  n  analog  telephone  device  is  neither  necessary  nor  sufficient  for 
 use  with  Vonages  service.);  see  also  8x8  Comments  at  9.  18 
 See  Vonage  Petition  at  4;  see  also  IP-  Enabled  Services  Proceeding,  19  FCC  Rcd  at  4866,  para.  3  n.  7.  19 
 See,  e.  g.,  Vonage  Oct.  1  Ex  Parte  Letter  at  4-  5;  Vonage,  Take  Your  Number  With  You  (visited  Oct.  28,  2004)  <http://  www.  vonage.  com/  features.  php?  feature=  traveling>. 

 20  See  Vonage  Oct.  1  Ex  Parte  Letter  at  4;  see  also  Vonage,  Real-  Time  Online  Account  Management  (visited  Oct. 
 28,  2004)  <http://  www.  vonage.  com/  features.  php?  feature=  online_  account_  mgt>.  For  example,  the  voicemail  service  integrated  into  DigitalVoice  allows  the  user  to  access  voicemail  and  select  delivery  options  through 

 interaction  with  the  customers  web  account  on  the  Internet.  21 
 Vonage  is  currently  adding  functionality  so  that  users  may  customize  voicemail  controls  by  scheduling  recorded  greetings  for  different  hours  of  the  day  and  different  days  of  the  year.  See  Oct.  1  Ex  Parte  Letter  at  5;  see  also 

 Vonage,  Voicemail  Plus  (visited  Oct.  28,  2004)  <http://  www.  vonage.  com/  features.  php?  feature=  voicemail>.  22 
 See,  e.  g.,  Vonage,  Call  Forwarding  (visited  Oct.  28,  2004)  <http://  www.  vonage.  com/  features.  php?  feature=  call_  forwarding>. 

 23  See  Vonage  Petition  at  6. 
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 the  subscribers  outgoing  calls  originate  on  the  Internet  and  are  routed  over  the  Internet  to  Vonages  servers.  If  the  destination  is  another  Vonage  customer  or  a  user  on  a  peered  service,  the  server  routes  the 
 packets  to  the  called  party  over  the  Internet  and  the  communication  also  terminates  via  the  Internet.  24  If  the  destination  is  a  telephone  attached  to  the  PSTN,  the  server  converts  the  IP  packets  into  appropriate 
 digital  audio  signals  and  connects  them  to  the  PSTN  using  the  services  of  telecommunications  carriers  interconnected  to  the  PSTN.  If  a  PSTN  user  originates  a  call  to  a  Vonage  customer,  the  call  is  connected, 
 using  the  services  of  telecommunications  carriers  interconnected  to  the  PSTN,  to  the  Vonage  server,  which  then  converts  the  audio  signals  into  IP  packets  and  routes  them  to  the  Vonage  user  over  the 
 Internet.  25  Together,  these  integrated  features  and  capabilities  allow  customers  to  control  their  communications  needs  by  determining  for  themselves  how,  when,  and  where  communications  will  be 
 sent,  received,  saved,  stored,  forwarded,  and  organized. 
 9.  Fourth,  although  Vonages  service  uses  North  American  Numbering  Plan  (NANP)  numbers  as  the  identification  mechanism  for  the  users  IP  address,  the  NANP  number  is  not  necessarily  tied  to  the 

 users  physical  location  for  either  assignment  or  use,  in  contrast  to  most  wireline  circuit-  switched  calls.  26  Rather,  as  Vonage  explains,  the  number  correlates  to  the  users  digital  signal  processor  to  facilitate  the 
 exchange  of  calls  between  the  Internet  and  the  PSTN  using  a  convenient  mechanism  with  which  users  are  familiar  to  identify  the  users  IP  address.  27  In  other  words,  and  again  in  marked  contrast  to  traditional 
 circuit-  switched  telephony,  a  call  to  a  Vonage  customers  NANP  number  can  reach  that  customer  anywhere  in  the  world  and  does  not  require  the  user  to  remain  at  a  single  location. 

 B.  History  of  Vonages  Petition 
 10.  In  July  2003,  the  Minnesota  Department  of  Commerce  filed  an  administrative  complaint  against  Vonage  with  the  Minnesota  Commission,  asserting  that  Vonage  was  providing  telephone  exchange 

 service  in  Minnesota  and  was  thus  subject  to  state  laws  and  regulations  governing  a  telephone  company.  Among  other  things,  the  laws  and  regulations  in  question  require  such  companies  to  obtain 
 operating  authority,  file  tariffs,  and  provide  and  fund  911  emergency  services.  28  The  Minnesota  Department  of  Commerce  sought  an  administrative  order  from  the  Minnesota  Commission  to  compel 
 Vonage  to  comply  with  these  state  regulatory  requirements.  In  response  to  the  administrative  complaint, 

 24  Vonage-  to-  Vonage  calls  are  not  transmitted  over  the  PSTN.  See  id.  at  7.  Calls  from  Vonage  customers  to 
 customers  of  certain  other  IP  service  providers  with  which  Vonage  has  a  peering  arrangement  also  are  not  transmitted  over  the  PSTN,  but  solely  over  the  Internet.  See  Vonage  Oct.  1  Ex  Parte  Letter  at  3-  4.  In  this  respect, 

 the  communication  is  similar  to  communications  that  occur  over  Pulvers  Free  World  Dialup  (FWD)  service  between  FWD  members.  See  Pulver,  19  FCC  Rcd  at  3309-  10,  paras.  5-  6.  If  Vonage  does  not  have  a  peering 
 arrangement  with  a  particular  VoIP  provider,  calls  between  users  of  the  two  services  are  routed  in  part  over  the  PSTN  but  originate  and  terminate  via  the  Internet.  See  Vonage  Oct.  1  Ex  Parte  Letter  at  4. 
 25  See  Vonage  Petition  at  5-  8;  see  also  8x8  Comments  at  10. 
 26  See  Vonage  Petition  at  8. 
 27  For  calls  to  and  from  other  VoIP  users,  Vonage  could  choose  to  use  other  identifiers  to  match  the  IP  address. 
 NANP  numbers  are  not  necessarily  required  for  VoIP  calls  that  remain  on  the  Internet  and  do  not  connect  with  the  PSTN.  See  Pulver,  19  FCC  Rcd  at  3309,  para.  5  (explaining  that  Pulvers  FWD  service  uses  five  or  six  digit  FWD 

 identification  numbers  rather  than  NANP  numbers);  see  also  Vonage  Petition  at  7-  8;  Vonage  Oct.  1  Ex  Parte  Letter  at  3-  5. 
 28  See  Minn.  Stat.    237.07,  237.16,  237.49,  237.74(  12);  Minn.  Rules    7812.0200(  1),  7812.0550(  1). 
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 Vonage  argued  that  these  state  laws  and  regulations  do  not  apply  to  it  and  that,  even  if  they  do,  they  are  preempted  by  the  Communications  Act  of  1934,  as  amended  (Communications  Act  or  Act).  29 
 11.  In  September  2003,  the  Minnesota  Commission  issued  an  order  asserting  regulatory  jurisdiction  over  Vonage  and  ordering  the  company  to  comply  with  all  state  statutes  and  regulations  relating  to  the 
 offering  of  telephone  service  in  Minnesota.  30  In  so  holding,  the  Minnesota  Commission  declined  to  decide  whether  Vonages  service  is  a  telecommunications  service  or  an  information  service  under  the  Act. 
 Instead,  it  found  DigitalVoice  to  be  a  telephone  service  as  defined  by  Minnesota  law,  thus  subjecting  Vonage  to  the  state  requirements  for  offering  such  a  service.  In  response,  Vonage  filed  suit  against  the 
 Minnesota  Commission  in  the  U.  S.  District  Court  for  the  District  of  Minnesota.  In  October  2003,  the  district  court  entered  a  permanent  injunction  in  favor  of  Vonage.  31  The  court  determined  that  Vonage  is 
 providing  an  information  service  under  the  Act  and  that  the  Act  preempts  the  Minnesota  Commissions  authority  to  subject  such  a  service  to  common  carrier  regulation.  32  The  court  concluded  that  VoIP 
 services  necessarily  are  information  services,  and  state  regulation  over  VoIP  services  is  not  permissible  because  of  the  recognizable  congressional  intent  to  leave  the  Internet  and  information  services  largely 
 unregulated.  33  In  January  2004,  the  court  denied  a  motion  by  the  Minnesota  Commission  for  reconsideration,  and  an  appeal  to  the  U.  S.  Court  of  Appeals  for  the  Eighth  Circuit  followed.  The  appeal 
 remains  pending.  34 

 29  See  Vonage  Oct.  1  Ex  Parte  Letter,  Exh.  3  at  5-  12. 
 30  See,  e.  g.,  Minnesota  Vonage  Order  at  8.  While  the  order  states  the  Commission  will  require  that  Vonage  comply 
 with  Minnesota  Statutes  and  Rules,  including  certification  requirements  and  the  provisioning  of  911  service,  the  order  does  not  enumerate  the  statutory  and  rule  provisions  to  which  it  is  referring  other  than  those  specifically  listed 

 in  note  27  above.  See  supra  note  28.  We  will  refer  to  these  requirements,  collectively,  throughout  this  Order  as  either  telephone  company  regulations  or  economic  regulations.  It  appears,  however,  that  many  Minnesota 
 Commission  rules  other  than  those  specifically  mentioned  in  the  Minnesota  Vonage  Order  would  only  apply  to  Vonage  as  a  result  of  its  status  as  a  certificated  entity  in  Minnesota.  See  Minn.  Stat.    237.16(  a).  As  a  result, 
 because,  as  described  below,  we  specifically  preempt  Minnesotas  certification  requirements  for  DigitalVoice  in  this  Order,  regulations  applicable  to  certificated  entities  would  not  be  applicable  to  Vonage  for  DigitalVoice. 
 31  See  Vonage  Holding  Corp.  v.  Minnesota  Pub.  Utils.  Commn,  290  F.  Supp.  2d  993  (D.  Minn.  2003),  appeal 
 pending,  Vonage  Holdings  Corp.  v.  Minnesota  Pub.  Utils.  Commn,  No.  04-  1434  (8th  Cir.).  We  reject  commenters  contentions  that  we  should  dismiss  the  Vonage  Petition  as  moot  because  the  Minnesota  district  court  granted  a 

 permanent  injunction.  See,  e.  g.,  Minnesota  Commission  Comments  at  4;  Qwest  Comments  at  2;  New  York  State  AG  Reply  at  3.  The  Minnesota  district  courts  permanent  injunction  is  currently  subject  to  appeal,  and  other  courts 
 and  state  commissions  have  open  proceedings  considering  these  issues.  Accordingly,  we  find  that  this  petition  continues  to  present  a  controversy  or  uncertainty  regarding  the  jurisdictional  nature  of  DigitalVoice  that  may  be 
 addressed  in  a  declaratory  ruling.  See  47  C.  F.  R.    1.2.  We  also  disagree  that  these  issues  are  not  ripe  because  Vonage  can  seek  waivers  of  the  Minnesota  requirements.  See,  e.  g.,  MTA  Comments  at  8.  The  Minnesota  order 
 directs  Vonage  to  comply  with  Minnesota  Statutes  and  Rules  within  30  days  without  mentioning  the  possibility  of  waiver.  See  Minnesota  Vonage  Order  at  9.  The  possibility  of  waiver,  however,  does  not  eliminate  the  conflict  with 
 our  rules  and  policies.  32 
 See  Vonage  Holding  Corp.  v.  Minnesota  Pub.  Utils.  Commn,  290  F.  Supp.  2d  at  996-  1003.  33 
 Id.  at  1002.  34 
 See  Vonage  Holdings  Corp.  v.  Minnesota  Pub.  Utils.  Commn,  No.  04-  1434  (8th  Cir.).  The  Commission  sought  a  primary  jurisdiction  referral  from  the  Eighth  Circuit  on  the  issues  presented  in  this  case.  See  Brief  for  the  United 

 States  and  the  Federal  Communications  Commission  as  Amici  Curiae,  Vonage  Holdings  Corp.  v.  Minnesota  Pub. 
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 12.  At  the  same  time  that  it  filed  suit  in  the  district  court  in  Minnesota,  Vonage  filed  the  instant  petition  with  the  Commission.  Specifically,  Vonages  petition  for  declaratory  ruling  requests  that  the 
 Commission  preempt  the  Minnesota  Commissions  order  and  find  that  (1)  Vonage  is  a  provider  of  information  services,  and  is  not  a  telecommunications  carrier,  as  those  terms  are  defined  in  the  Act,  35 
 and  (2)  state  regulation  of  this  service  would  unavoidably  conflict  with  the  national  policy  of  promoting  unregulated  competition  in  the  Internet  and  information  service  market.  36  In  the  alternative,  Vonage 
 seeks  a  determination  that  the  Minnesota  Commissions  order  is  preempted  because  it  is  impossible  to  separate  this  service,  regardless  of  its  regulatory  classification,  into  distinct  interstate  and  intrastate 
 communications.  37  Vonage  also  seeks  a  ruling  that  certain  specific  E911  requirements  imposed  by  the  Minnesota  Commission  are  in  conflict  with  federal  policies.  38  On  August  13,  2004,  Vonage  submitted 
 additional  information  to  the  Commission  in  this  matter,  requesting  that  we  act  expeditiously  on  its  pending  petition  insofar  as  it  concerned  the  jurisdictional  nature  of  the  service,  explaining  that  such  a 
 determination  could  be  rendered  independent  of  the  statutory  classification  of  the  service.  39 
 13.  Since  Vonage  filed  its  petition,  a  number  of  other  states  have  opened  proceedings  to  examine  the  jurisdictional  nature  of  VoIP  services  offered  in  their  states.  40  For  example,  in  May  2004,  the  New  York 

 State  Public  Service  Commission  (New  York  Commission)  adopted  an  order  finding  that  Vonage,  in  offering  and  providing  DigitalVoice  in  New  York,  is  a  telephone  corporation  as  defined  by  New  York 
 state  law,  and  is  therefore  subject  to  certain  requirements.  41  The  New  York  Commission  asserted  jurisdiction  over  Vonage  and  ordered  it  to  obtain  state  certification  and  to  file  a  tariff,  but  permitted 
 Vonage  to  seek  waivers  of  New  York  regulations  that  it  deemed  inappropriate  or  with  which  it  was  not  readily  able  to  comply.  42  Vonage  sought,  and  in  July  the  U.  S.  District  Court  for  the  Southern  District  of 
 New  York  granted,  a  preliminary  injunction  of  the  New  York  Vonage  Order.  43  The  court  held  that 
 Utils.  Commn,  No.  04-  1434  (8th  Cir.  filed  Apr.  21,  2004)  (requesting  a  primary  jurisdiction  referral).  The  Eighth  Circuit  has  not  yet  ruled  on  the  primary  jurisdiction  referral.  Oral  argument  is  scheduled  for  November  17,  2004. 
 35  See  47  U.  S.  C.    153(  20)  (defining  information  service);  47  U.  S.  C.    153(  43)  (defining  telecommunications); 
 47  U.  S.  C.    153(  44)  (defining  telecommunications  carrier);  47  U.  S.  C.    153(  46)  (defining  telecommunications  service). 

 36  See  Vonage  Petition  at  1. 
 37  Id. 
 38  Id.;  see  also  8x8  Comments  at  15-  17. 
 39  See  Letter  from  William  B.  Wilhelm,  Jr.,  Counsel  for  Vonage,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket 
 Nos.  03-  211,  04-  36,  at  1-  2  (filed  Aug.  13,  2004)  (Vonage  Aug.  13  Ex  Parte  Letter).  40 
 See,  e.  g.,  Order  Instituting  Investigation  on  the  Commissions  Own  Motion  to  Determine  the  Extent  to  Which  the  Public  Utility  Telephone  Service  Known  as  Voice  over  Internet  Protocol  Should  Be  Exempted  from  Regulatory 

 Requirements,  Investigation  04-  02-  007,  Order  Instituting  Investigation  (issued  Feb.  11,  2004)  (initiating  a  proceeding  by  the  California  Public  Utilities  Commission  to  investigate  VoIP  services). 
 41  See  Complaint  of  Frontier  Telephone  of  Rochester,  Inc.  against  Vonage  Holdings  Corporation  Concerning 
 Provision  of  Local  Exchange  and  Interexchange  Telephone  Service  in  New  York  State  in  Violation  of  the  Public  Service  Law,  Case  03-  C-  1285,  Order  Establishing  Balanced  Regulatory  Framework  for  Vonage  Holdings 

 Corporation  at  10  (issued  May  21,  2004)  (New  York  Vonage  Order).  42 
 See  id.  at  17.  43 
 See  Vonage  Holdings  Corp.  v.  New  York  State  Public  Service  Commn,  04  Civ.  4306  (DFE)  (S.  D.  N.  Y.  July  16,  2004)  (Order  of  Magistrate  Judge  Eaton)  (New  York  Preliminary  Injunction)  (entering  a  preliminary  injunction 

 against  the  New  York  Commissions  order). 
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 Vonage  has  shown  that  it  is  likely  to  succeed  on  the  merits  of  its  claim  that  the  [New  York  Vonage  Order]  is  preempted  by  federal  law;  that  Vonage  has  demonstrated  that  the  [New  York  Vonage  Order] 
 will  interfere  with  interstate  commerce;  and  that  this  Commissions  guidance,  via  orders  in  the  IP-  Enabled  Services  Proceeding  or  the  instant  proceeding,  may  aid  in  final  resolution  of  the  matter.  44 
 The  court  has  scheduled  a  status  conference  on  December  13,  2004  to  consider  whether  there  is  a  need  for  further  proceedings  in  this  matter,  including  a  determination  on  Vonages  request  for  permanent 
 injunctive  relief.  45 
 III.  DISCUSSION 
 14.  We  grant  Vonages  petition  in  part  46  and  preempt  the  Minnesota  Vonage  Order.  47  We  find  that  the  characteristics  of  DigitalVoice  preclude  any  practical  identification  of,  and  separation  into,  interstate 

 and  intrastate  communications  for  purposes  of  effectuating  a  dual  federal/  state  regulatory  scheme,  and  that  permitting  Minnesotas  regulations  would  thwart  federal  law  and  policy.  We  reach  this  decision 
 irrespective  of  the  definitional  classification  of  DigitalVoice  under  the  Act,  i.  e.,  telecommunications  or  information  service,  a  determination  we  do  not  reach  in  this  Order.  Although  Congress  did  not  explicitly 
 prescribe  the  regulatory  framework  for  Internet-  based  communications  like  DigitalVoice  when  it 

 44  Id.  at  2-  3. 
 45  See  id.  at  3. 
 46  We  do  not  determine  the  statutory  classification  of  DigitalVoice  under  the  Communications  Act,  and  thus  do  not 
 decide  here  the  appropriate  federal  regulations,  if  any,  that  will  govern  this  service  in  the  future.  These  issues  are  currently  the  subject  of  our  IP-  Enabled  Services  Proceeding  where  the  Commission  is  comprehensively  examining 

 numerous  types  of  IP-  enabled  services,  including  services  like  DigitalVoice.  See  generally  IP-  Enabled  Services  Proceeding,  19  FCC  Rcd  4863.  That  proceeding  will  resolve  important  regulatory  matters  with  respect  to 
 IP-  enabled  services  generally,  including  services  such  as  DigitalVoice,  concerning  issues  such  as  the  Universal  Service  Fund,  intercarrier  compensation,  911/  E911,  consumer  protection,  disability  access  requirements,  and  the 
 extent  to  which  states  have  a  role  in  such  matters.  In  addition,  the  Commission  recently  initiated  a  rulemaking  proceeding  to  address  law  enforcement's  needs  relative  to  the  Communications  Assistance  for  Law  Enforcement  Act 
 (CALEA),  including  the  scope  of  services  that  are  covered,  who  bears  responsibility  for  compliance,  the  wiretap  capabilities  required  by  law  enforcement,  and  acceptable  compliance  standards.  Our  decision  in  this  Order  does  not 
 prejudice  the  outcome  of  our  proceeding  on  CALEA.  See  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services,  ET  Docket  No.  04-  295;  RM-  10865,  Notice  of  Proposed  Rulemaking  and 
 Declaratory  Ruling,  19  FCC  Rcd  15676  (2004);  see  also  DOJ/  FBI  Comments  at  10-  13;  DOJ/  FBI  Reply  at  7-  10.  These  issues  are  complex  and  critically  important  matters.  While  these  matters  are  being  comprehensively 
 addressed,  however,  it  is  essential  that  we  take  action  to  bring  some  greater  measure  of  certainty  to  the  industry  to  permit  services  like  DigitalVoice  to  evolve.  By  ruling  on  the  narrow  jurisdictional  question  here,  we  enable  this 
 Commission  and  the  states  to  focus  resources  in  working  together  along  with  the  industry  to  address  the  numerous  other  unresolved  issues  related  to  this  and  other  IP-  enabled  and  advanced  communications  services  that  are  of 
 paramount  importance  to  the  future  of  the  communications  industry.  See,  e.  g.,  PacWest/  RCN  Reply  at  5;  USA  DataNet  Comments  at  2-  3  (urging  the  Commission  to  act  on  the  Vonage  Petition).  But  see,  e.  g.,  DOJ/  FBI 
 Comments  at  9;  Minnesota  Commission  Comments  at  4;  Montana  Independent  Telecommunications  Systems  Comments  at  5;  Qwest  Comments  at  3-  4;  USTA  Comments  at  3-  4;  DOJ/  FBI  Reply  at  5-  7;  Minnesota  Commission 
 Reply  at  3;  Verizon  Reply  at  6  (urging  the  Commission  not  to  act  on  the  Vonage  Petition,  but  instead  to  decide  these  issues  in  a  comprehensive  rulemaking  proceeding). 
 47  As  we  noted  above,  this  Order  does  not  address  Minnesotas  general  laws  governing  entities  conducting  business 
 within  the  state,  such  as  laws  concerning  taxation;  fraud;  general  commercial  dealings;  marketing,  advertising,  billing  and  other  business  practices.  See  supra  para.  1. 
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 amended  the  Act  in  1996,  48  its  statements  regarding  the  Internet  and  advanced  telecommunications  capabilities  in  sections  230  and  706  indicate  that  our  actions  here  are  consistent  with  its  intent  concerning 
 these  emerging  technologies.  In  addition,  we  address  the  fact  that  multiple  state  regulatory  regimes  would  likely  violate  the  Commerce  Clause  because  of  the  unavoidable  effect  that  regulation  on  an 
 intrastate  component  would  have  on  interstate  use  of  this  service  or  use  of  the  service  within  other  states.  Finally,  although  we  preempt  the  Minnesota  Vonage  Order,  including  its  911  requirements  imposed  as  a 
 condition  to  entry,  we  fully  expect  Vonage  to  continue  its  efforts  to  develop  a  911  capability  as  we  work  toward  resolving  this  important  public  safety  issue  in  the  IP-  Enabled  Services  Proceeding  as  discussed 
 below.  49 
 A.  Preemption  of  the  Minnesota  Vonage  Order 
 15.  We  begin  our  analysis  by  briefly  examining  the  distribution  of  authority  over  communications  services  between  federal  and  state  agencies  under  the  Act.  We  then  discuss  judicial  precedent  that 

 recognizes  circumstances  where  state  jurisdiction  must  yield  to  federal  jurisdiction  through  the  Commissions  authority  to  preempt  state  regulations  that  thwart  the  lawful  exercise  of  federal  authority 
 over  interstate  communications.  Next,  we  explain  our  current  federal  rules  and  policies  for  services  like  DigitalVoice  followed  by  our  demonstration  of  the  impossibility  of  separating  DigitalVoice  into  interstate 
 and  intrastate  components  for  purposes  of  complying  with  the  Minnesota  regulations  without  negating  federal  policies  and  directly  conflicting  with  our  own  regulations.  We  conclude  that  preempting  the 
 Minnesota  Vonage  Order  is  compelled  to  avoid  thwarting  valid  federal  objectives  for  innovative  new  competitive  services  like  DigitalVoice,  finding  consistency  between  our  action  here  and  Congresss 
 articulated  policies  in  sections  230  and  706  of  the  Act. 
 1.  Commission  Jurisdiction  over  DigitalVoice 
 16.  In  the  absence  of  a  specific  statutory  provision  regarding  jurisdiction  over  services  like  DigitalVoice,  we  begin  with  section  2  of  the  Act.  50  In  1934,  Congress  set  up  a  dual  regulatory  regime  for 
 communications  services.  51  In  section  2(  a)  of  the  Act,  Congress  has  given  the  Commission  exclusive  jurisdiction  over  all  interstate  and  foreign  communication  and  all  persons  engaged  .  .  .  in  such 
 communication.  52  Section  2(  b)  of  the  Act  reserves  to  the  states  jurisdiction  with  respect  to  intrastate  communication  service  .  .  .  of  any  carrier.  53 

 48  Telecommunications  Act  of  1996,  Pub.  Law  No.  104-  104,  110  Stat.  56  (1996)  (1996  Act). 
 49  Access  to  emergency  services  for  VoIP  services,  including  911,  is  a  critical  public  safety  issue.  This  issue,  and  the 
 extent  to  which  states  may  have  a  role  in  such  matters,  will  be  addressed  in  the  IP-  Enabled  Services  Proceeding.  We  address  this  issue  in  a  limited  manner  in  this  Order  only  because  of  the  manner  in  which  Minnesota  ties  its  911 

 requirements  to  entry  authority.  See  infra  paras.  42-  44.  50 
 See  Bell  Atl.  Tel.  Cos.  v.  FCC,  131  F.  3d  1044  (D.  C.  Cir.  1997).  51 
 See  generally  47  U.  S.  C.    152.  52 
 47  U.  S.  C.    152(  a).  Congress  defined  interstate  communication  as  communication  or  transmission  .  .  .  from  any  State,  Territory,  or  possession  of  the  United  States.  .  .  to  any  other  State,  Territory,  or  possession  of  the  United 

 States  .  .  .  but  shall  not  .  .  .  include  wire  or  radio  communication  between  points  in  the  same  State  .  .  .  through  any  place  outside  thereof,  if  such  communication  is  regulated  by  a  State  commission.  47  U.  S.  C.    153(  22). 
 53  47  U.  S.  C.    152(  b).  [  I]  ntrastate  communications  is  not  separately  defined  in  the  Act  except  to  the  extent  it  is 
 described  in  the  definition  of  interstate  communication  as  a  wire  or  radio  communication  between  points  in  the  same  State.  47  U.  S.  C.    153(  22)  (emphasis  added).  We  note  that  section  2(  b)  reserves  to  the  states  only  matters 
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 17.  In  applying  section  2  to  specific  services  and  facilities,  the  Commission  has  traditionally  applied  its  so-  called  end-  to-  end  analysis  based  on  the  physical  end  points  of  the  communication.  54  Under  this 
 analysis,  the  Commission  considers  the  continuous  path  of  communications,  beginning  with  the  end  point  at  the  inception  of  a  communication  to  the  end  point  at  its  completion,  and  has  rejected  attempts  to 
 divide  communications  at  any  intermediate  points.  55  Using  an  end-  to-  end  approach,  when  the  end  points  of  a  carriers  service  are  within  the  boundaries  of  a  single  state  the  service  is  deemed  a  purely  intrastate 
 service,  subject  to  state  jurisdiction  for  determining  appropriate  regulations  to  govern  such  service.  56  When  a  services  end  points  are  in  different  states  or  between  a  state  and  a  point  outside  the  United  States, 
 the  service  is  deemed  a  purely  interstate  service  subject  to  the  Commissions  exclusive  jurisdiction.  57  Services  that  are  capable  of  communications  both  between  intrastate  end  points  and  between  interstate 
 end  points  are  deemed  to  be  mixed-  use  or  jurisdictionally  mixed  services.  58  Mixed-  use  services  are  generally  subject  to  dual  federal/  state  jurisdiction,  except  where  it  is  impossible  or  impractical  to  separate 
 the  services  intrastate  from  interstate  components  and  the  state  regulation  of  the  intrastate  component  interferes  with  valid  federal  rules  or  policies.  59  In  such  circumstances,  the  Commission  may  exercise  its 
 authority  to  preempt  inconsistent  state  regulations  that  thwart  federal  objectives,  treating  jurisdictionally  mixed  services  as  interstate  with  respect  to  the  preempted  regulations.  60 

 18.  Thus,  our  threshold  determination  must  be  whether  DigitalVoice  is  purely  intrastate  (subject  only  to  state  jurisdiction)  or  jurisdictionally  mixed  (subject  also  to  federal  jurisdiction).  The  nature  of 
 DigitalVoice  precludes  any  suggestion  that  the  service  could  be  characterized  as  a  purely  intrastate  service.  61  As  Vonage  has  indicated,  it  has  over  275,000  subscribers  located  throughout  the  United  States, 

 connected  with  carriers,  which  means  common  carriers  or  telecommunications  carriers  under  sections  3(  10)  and  3(  44)  of  the  Act.  47  U.  S.  C.    153(  10),  (44).  Here,  we  do  not  determine  whether  Vonage  is  a  carrier; 
 however,  our  analysis  with  respect  to  section  2(  b)  assumes  that  it  is.  This  assumption  for  purposes  of  this  Order,  however,  in  no  way  prejudges  how  the  Commission  may  ultimately  classify  DigitalVoice. 
 54  See,  e.  g.,  Bell  Atl.  Tel.  Cos.  v.  FCC,  206  F.  3d  1,  3  (D.  C.  Cir.  2000);  see  infra  para.  24  (addressing  difficulties  with 
 an  end-  to-  end  approach  for  services  involving  the  Internet).  55 
 See,  e.  g.,  Pulver,  19  FCC  Rcd  at  3320-  21,  para.  21.  56 
 See  47  U.  S.  C.    152(  b)(  1).  57 
 See  47  U.  S.  C.    153(  22).  58 
 See,  e.  g.,  MTS  and  WATS  Market  Structure  Amendment  of  Part  67  of  the  Commissions  Rules  and  Establishment  of  a  Joint  Board,  CC  Docket  Nos.  78-  72,  80-  286,  Memorandum  Opinion  and  Order  on  Reconsideration  and  Order 

 Inviting  Comments,  1  FCC  Rcd  1287  (1987);  Petition  for  Emergency  Relief  and  Declaratory  Ruling  Filed  by  the  BellSouth  Corporation,  Memorandum  Opinion  and  Order,  7  FCC  Rcd  1619,  1620,  para.  7  (1992)  (BellSouth 
 MemoryCall);  Southwestern  Bell  Tel.  Co.  v.  FCC,  153  F.  3d  523,  543  (8th  Cir.  1998).  59 
 See  Louisiana  Pub.  Serv.  Commn  v.  FCC,  476  U.  S.  355,  368  (1986)  (finding  a  basis  for  Commission  preemption  where  compliance  with  both  federal  and  state  law  is  in  effect  physically  impossible)  (citing  Florida  Lime  & 

 Avocado  Growers,  Inc.  v.  Paul,  373  U.  S.  132  (1963));  BellSouth  MemoryCall,  7  FCC  Rcd  at  1622-  23,  paras.  18-  19.  60 
 Indeed,  the  Eighth  Circuit  has  recently  noted  the  Commissions  authority  to  preempt  in  the  area  of  jurisdictionally  mixed  special  access  services.  See  Qwest  Corp.  v.  Minnesota  Pub.  Utils.  Commn,  380  F.  3d  367,  374  (8th  Cir. 

 2004)  (finding  that,  with  respect  to  special  access  services,  the  Commission  certainly  has  the  wherewithal  to  preempt  state  regulation  in  this  area  if  it  so  desires)  (emphasis  added). 
 61  We  need  not  address  in  this  Order  the  case  of  purely  intrastate  service,  which  is  not  the  service  we  have  before  us 
 in  this  petition. 
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 each  with  the  ability  to  communicate  with  anyone  in  the  world  from  anywhere  in  the  world.  62  While  DigitalVoice  clearly  enables  intrastate  communications,  it  also  enables  interstate  communications.  It  is 
 therefore  a  jurisdictionally  mixed  service,  63  and  this  Commission  has  exclusive  jurisdiction  under  the  Act  to  determine  the  policies  and  rules,  if  any,  that  govern  the  interstate  aspect  of  DigitalVoice  service.  64 

 2.  Commission  Authority  To  Preempt  State  Regulations 
 19.  Although  the  Communications  Act  establishes  dual  federal-  state  authority  to  regulate  certain  communications  services,  courts  routinely  recognize  that  there  may  be  circumstances  where  state 
 regulation  would  necessarily  conflict  with  the  Commissions  valid  exercise  of  authority.  65  Where  separating  a  service  into  interstate  and  intrastate  communications  is  impossible  or  impractical,  the 
 Supreme  Court  has  recognized  the  Commissions  authority  to  preempt  state  regulation  that  would  thwart  or  impede  the  lawful  exercise  of  federal  authority  over  the  interstate  component  of  the  communications.  66 

 62  See  Vonage  Oct.  1  Ex  Parte  Letter  at  2  (explaining  that  its  subscribers  have  billing  addresses  in  each  of  the  50 
 states,  the  District  of  Columbia  and  throughout  Canada,  that  its  subscribers  regularly  use  the  service  from  countries  outside  North  America,  including  Argentina,  Australia  .  .  .  and  the  United  Kingdom,  and  that  customers  have  used 

 the  service  from  virtually  every  inhabitable  continent  in  the  world).  63 
 We  analyze  DigitalVoice  for  purposes  of  preemption  as  a  jurisdictionally  mixed  service  due  to  its  recognized  capability  to  enable  communications  to  occur  not  only  between  different  states  but  within  a  particular  state.  This 

 notwithstanding,  it  is  possible  that  the  Commission  may  find,  in  the  context  of  the  IP-  Enabled  Services  Proceeding,  that  this  type  of  service  simply  has  no  intrastate  component. 
 64  See  Louisiana  Pub.  Serv.  Comm'n,  476  U.  S.  at  360  (explaining  how  the  Act  would  seem  to  divide  the  world  of 
 domestic  telephone  service  into  two  hemispheres    one  comprised  of  interstate  service,  over  which  the  Commission  has  plenary  authority);  see  also  Ivy  Broad.  Co.  v.  American  Tel.  &  Tel.  Co.,  391  F.  2d  486,  490  (2d  Cir.  1968) 

 (  The  Supreme  Court  has  held  that  the  establishment  of  this  broad  scheme  for  the  regulation  of  interstate  service  by  communications  carriers  indicates  an  intent  on  the  part  of  Congress  to  occupy  the  field  to  the  exclusion  of  state 
 law.).  65 
 See  Louisiana  Pub.  Serv.  Commn,  476  U.  S.  at  375  n.  4  (citing  North  Carolina  Utils.  Commn  v.  FCC,  537  F.  2d  787  (4th  Cir.  1976),  cert.  denied,  429  U.  S.  1027  (1976);  North  Carolina  Utils.  Commn  v.  FCC,  552  F.  2d  1036  (4th 

 Cir.  1977)  cert.  denied,  434  U.  S.  874  (1977)  (upholding  Commission  preemption  of  state  regulation  because  it  was  not  possible  to  separate  the  interstate  and  intrastate  components  of  the  asserted  Commission  regulation));  see  also 
 New  York  State  Commn  on  Cable  Television  v.  FCC,  749  F.  2d  804  (D.  C.  Cir.  1984)  (affirming  Commission  order  preempting  state  and  local  entry  regulation  of  satellite  master  antenna  television);  Promotion  of  Competitive 
 Networks  in  Local  Telecommunications  Markets;  Wireless  Communications  Association  International,  Inc.  Petition  for  Rulemaking  to  Amend  Section  1.4000  of  the  Commissions  Rules  to  Preempt  Restrictions  on  Subscriber 
 Premises  Reception  or  Transmission  Antennas  Designed  to  Provide  Fixed  Wireless  Services;  Implementation  of  the  Local  Competition  Provisions  in  the  Telecommunications  Act  of  1996;  Review  of  Sections  68.104,  and  68.213  of  the 
 Commissions  Rules  Concerning  Connection  of  Simple  Inside  Wiring  to  the  Telephone  Network,  WT  Docket  No.  99-  217;  CC  Docket  Nos.  96-  98,  88-  57,  First  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking;  Fifth 
 Report  and  Order  and  Memorandum  Opinion  and  Order;  Fourth  Report  and  Order  and  Memorandum  Opinion  and  Order,  15  FCC  Rcd  22983,  23031-  32,  para.  107  (2000)  (preempting  state  regulation  of  fixed  wireless  antennas  as  an 
 impediment  to  the  full  achievement  of  important  federal  objectives).  66 
 See  Louisiana  Pub.  Serv.  Commn,  476  U.  S.  at  368-  69.  The  Court  also  said  that  the  critical  question  in  any  pre-emption  analysis  is  always  whether  Congress  intended  that  federal  regulation  supersede  state  law.  Id.  at  369.  As 

 summarized  by  the  Supreme  Court,  federal  law  and  policy  preempt  state  action  in  several  circumstances:  (1)  where  compliance  with  both  federal  and  state  law  is  in  effect  physically  impossible  (citing  Florida  Lime  &  Avocado 
 Growers,  Inc.  v.  Paul,  373  U.  S.  132);  (2)  when  there  is  outright  or  actual  conflict  between  federal  and  state  law  (citing  Free  v.  Bland,  369  U.  S.  663  (1962));  (3)  where  the  state  law  stands  as  an  obstacle  to  the  accomplishment  and 
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 The  D.  C.  Circuit,  for  example,  applied  this  impossibility  exception  in  affirming  a  Commission  order  preempting  state  regulation  of  the  rate  a  local  exchange  carrier  (LEC)  charged  an  interexchange  carrier  for 
 a  disconnection  service.  67  The  court  explained  that  Commission  preemption  of  state  regulation  is  permissible  when  the  matter  to  be  regulated  has  both  interstate  and  intrastate  aspects;  preemption  is 
 necessary  to  protect  a  valid  federal  regulatory  objective;  and  state  regulation  would  negate[  ]  the  exercise  by  the  FCC  of  its  own  lawful  authority  because  regulation  of  the  interstate  aspects  of  the  matter 
 cannot  be  unbundled  from  regulation  of  the  intrastate  aspects.  68  Such  is  the  case  with  DigitalVoice  service  as  discussed  in  detail  below. 

 3.  Conflict  With  Commission  Rules  and  Policies 
 20.  Regardless  of  the  definitional  classification  of  DigitalVoice  under  the  Communications  Act,  the  Minnesota  Vonage  Order  directly  conflicts  with  our  pro-  competitive  deregulatory  rules  and  policies 
 governing  entry  regulations,  tariffing,  and  other  requirements  arising  from  these  regulations  for  services  such  as  DigitalVoice.  69  Were  DigitalVoice  to  be  classified  a  telecommunications  service,  Vonage  would 
 be  considered  a  nondominant,  competitive  telecommunications  provider  for  which  the  Commission  has  eliminated  entry  and  tariff  filing  requirements  with  respect  to  services  like  DigitalVoice.  70  In  particular, 

 execution  of  the  full  objectives  of  Congress  (citing  Hines  v.  Davidowitz,  312  U.  S.  52  (1941));  (4)  when  Congress  expresses  a  clear  intent  to  preempt  state  law;  (5)  where  there  is  implicit  in  federal  law  a  barrier  to  state  regulation; 
 and  (6)  where  Congress  has  legislated  comprehensively,  thus  occupying  an  entire  field  of  regulation.  Additionally,  the  Supreme  Court  has  held  that  preemption  may  result  not  only  from  action  taken  by  Congress  but  also  from  a 
 federal  agency  action  that  is  within  the  scope  of  the  agencys  congressionally  delegated  authority.  Louisiana  Pub.  Serv.  Commn,  476  U.  S.  at  369  (citing  Fidelity  Federal  Savings  &  Loan  Assn  v.  De  la  Cuesta,  458  U.  S.  141 
 (1982);  Capital  Cities  Cable,  Inc.  v.  Crisp,  467  U.  S.  691  (1984)).  67 
 See  Pub.  Serv.  Commn  of  Maryland  v.  FCC,  909  F.  2d  1510  (D.  C.  Cir.  1990).  68 
 Id.  at  1515  (citing  National  Ass'n  of  Regulatory  Util.  Commrs  v.  FCC,  880  F.  2d  422,  429-  31  (D.  C.  Cir.  1989);  Illinois  Bell  Tel.  Co.  v.  FCC,  883  F.  2d  104,  113  (D.  C.  Cir.  1989);  Public  Util.  Commn  of  Texas  v.  FCC,  886  F.  2d 

 1325,  1329,  1331-  33  (D.  C.  Cir.  1989)).  69 
 While  we  do  not  rely  on  it  as  a  basis  for  our  action  in  this  Order,  we  also  note  that  section  253  of  the  Act  provides  the  Commission  additional  preemption  authority  over  state  regulations  that  prohibit  or  have  the  effect  of 

 prohibiting  the  ability  of  an  entity  to  provide  any  interstate  or  intrastate  telecommunications  service.  47  U.  S.  C.    253.  See  Vonage  Petition  at  28  n.  55  (indicating  it  does  not  submit  its  petition  under  section  253).  Were 
 DigitalVoice  to  be  classified  as  a  telecommunications  service,  however,  it  is  possible  that  we  could  find  state  economic  regulation  such  as  that  imposed  by  Minnesota  to  be  a  prohibition  on  the  provision  of  an  interstate  and 
 intrastate  telecommunications  services  under  section  253.  See  Vonage  Petition  at  11,  28  (describing  that  it  is  technically  and  practically  impossible  to  comply  with  Minnesotas  telephone  company  rules). 
 70  See,  e.  g.,  Implementation  of  Section  402(  b)(  2)(  A)  of  the  Telecommunications  Act  of  1996;  Petition  for 
 Forbearance  of  the  Independent  Telephone  &  Telecommunications  Alliance,  CC  Docket  No.  97-  11;  AAD  File  No.  98-  43,  Report  and  Order  and  Second  Memorandum  Opinion  and  Order,  14  FCC  Rcd  11364,  11372-  75,  paras.  12-  16 

 (1999)  (Section  214  Order)  (granting  blanket  section  214  authority  for  new  lines  of  all  domestic  carriers  including  dominant  carriers  like  the  Bell  operating  companies  (BOCs));  Policy  and  Rules  Concerning  the  Interstate, 
 Interexchange  Marketplace;  Implementation  of  Section  245(  g)  of  the  Communications  Act  of  1934,  CC  Docket  No.  96-  61,  Second  Report  and  Order,  11  FCC  Rcd  20730  (1996)  (Interexchange  Detariffing  Order)  (adopting 
 mandatory  detariffing  of  most  domestic  interstate,  interexchange  services);  Order  on  Reconsideration,  12  FCC  15014  (1997);  Second  Order  on  Reconsideration  and  Erratum,  14  FCC  Rcd  6004  (1999),  aff'd,  MCI  WorldCom, 
 Inc.  v.  FCC,  209  F.  3d  760  (D.  C.  Cir.  2000);  Policy  and  Rules  Concerning  Rates  for  Competitive  Common  Carrier  Services  and  Facilities  Authorizations  Therefor,  First  Report  and  Order,  85  FCC  2d  1  (1980)  (subsequent  history 
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 in  completely  eliminating  interstate  market  entry  requirements,  the  Commission  reasoned  that  retaining  entry  requirements  could  stifle  new  and  innovative  services  whereas  blanket  entry  authority,  i.  e., 
 unconditional  entry,  would  promote  competition.  71  State  entry  and  certification  requirements,  such  as  the  Minnesota  Commissions,  require  the  filing  of  an  application  which  must  contain  detailed  information 
 regarding  all  aspects  of  the  qualifications  of  the  would-  be  service  provider,  including  public  disclosure  of  detailed  financial  information,  operational  and  business  plans,  and  proposed  service  offerings.  72  The 
 application  process  can  take  months  and  result  in  denial  of  a  certificate,  thus  preventing  entry  altogether.  73  Similarly,  when  the  Commission  ordered  the  mandatory  detariffing  of  most  interstate,  domestic, 
 interexchange  services  (including  services  like  DigitalVoice),  the  Commission  found  that  prohibiting  such  tariffs  would  promote  competition  and  the  public  interest,  and  that  tariffs  for  these  services  may  actually 
 harm  consumers  by  impeding  the  development  of  vigorous  competition.  74  Tariffs  and  price  lists,  such  as  those  required  by  Minnesotas  statutes  and  rules,  are  lengthy  documents  subject  to  specific  filing  and 
 notice  requirements  that  must  contain  every  rate,  term,  and  condition  of  service  offered  by  the  provider,  including  terms  and  conditions  to  which  the  provider  may  be  subject  in  its  certificate  of  authority.  75  The 
 Minnesota  Commission  may  also  require  the  filing  of  cost-  justification  information  or  order  a  change  in  a  rate,  term  or  condition  set  forth  in  the  tariff.  76  The  administrative  process  involved  in  entry  certification 
 and  tariff  filing  requirements,  alone,  introduces  substantial  delay  in  time-  to-  market  and  ability  to  respond  to  changing  consumer  demands,  not  to  mention  the  impact  these  processes  have  on  how  an  entity  subject 
 to  such  requirements  provides  its  service. 
 21.  On  the  other  hand,  if  DigitalVoice  were  to  be  classified  as  an  information  service,  it  would  be  subject  to  the  Commissions  long-  standing  national  policy  of  nonregulation  of  information  services,  77 

 omitted)  (Competitive  Carrier  Proceeding)  (adopting  regulatory  framework  based  on  dominant  or  nondominant  status  of  carriers). 
 71  See  Section  214  Order,  14  FCC  Rcd  at  11373,  para.  14  (  By  its  very  terms,  blanket  authority  removes  regulatory 
 hurdles  to  market  entry,  thereby  promoting  competition.);  id.  at  11373,  para.  13  (  Rather  than  maintaining  [entry  requirements]  that  may  stifle  new  and  innovative  services[,]    we  believe  it  is  more  consistent  with  the  goals  of  the 

 1996  Act  to  remove  this  hurdle.).  72 
 See  Minn.  Rule    7812.0200.  73 
 See  Minn.  Stat.    237.16(  c)  74 
 See  Interexchange  Detariffing  Order,  11  FCC  Rcd  at  20760,  para.  52  (emphasis  added)  ([  W]  e  find  that  not  permitting  nondominant  interexchange  carriers  to  file  tariffs  with  respect  to  interstate,  domestic,  interexchange 

 services  will  enhance  competition  among  providers  of  such  services,  promote  competitive  market  conditions,  and  achieve  other  objectives  that  are  in  the  public  interest,  including  eliminating  the  possible  invocation  of  the  filed  rate 
 doctrine  by  nondominant  interexchange  carriers,  and  establishing  market  conditions  that  more  closely  resemble  an  unregulated  environment.);  id.  at  20750,  para.  37  (  We  also  adopt  the  tentative  conclusion  that  in  the  interstate, 
 domestic,  interexchange  market,  requiring  nondominant  interexchange  carriers  to  file  tariffs  for  interstate,  domestic,  interexchange  services  may  harm  consumers  by  impeding  the  development  of  vigorous  competition,  which  could 
 lead  to  higher  rates.).  We  note  that  certain  exceptions  to  the  Commissions  mandatory  detariffing  rules  exist;  however,  these  exceptions  would  not  apply  to  services  like  DigitalVoice  were  it  to  be  classified  a 
 telecommunications  service.  75 
 See  Minn.  Stat.    237.07;  see  also,  e.  g.,  Minn.  Rules    7812.0300(  6),  7812.0350(  6),  7812.2210(  2).  76 
 See,  e.  g.,  Minn.  Rule    7812.2210(  4),(  8).  77 
 See  Regulatory  and  Policy  Problems  Presented  by  the  Interdependence  of  Computer  and  Communication  Services  and  Facilities,  Docket  No.  16979,  Notice  of  Inquiry,  7  FCC  2d  11  (1966)  (Computer  I  NOI);  Regulatory  and  Policy 

 Problems  Presented  by  the  Interdependence  of  Computer  and  Communication  Services  and  Facilities,  Docket  No. 
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 particularly  regarding  economic  regulation  such  as  the  type  imposed  on  Vonage  in  the  Minnesota  Vonage  Order.  78  In  a  series  of  proceedings  beginning  in  the  1960s,  the  Commission  issued  orders  finding  that 
 economic  regulation  of  information  services  would  disserve  the  public  interest  because  these  services  lacked  the  monopoly  characteristics  that  led  to  such  regulation  of  common  carrier  services  historically. 
 The  Commission  found  the  market  for  these  services  to  be  competitive  and  best  able  to  burgeon  and  flourish  in  an  environment  of  free  give-  and-  take  of  the  market  place  without  the  need  for  and  possible 
 burden  of  rules,  regulations  and  licensing  requirements.  79 
 22.  Thus,  under  existing  Commission  precedent,  regardless  of  its  definitional  classification,  and  unless  it  is  possible  to  separate  a  Minnesota-  only  component  of  DigitalVoice  from  the  interstate 

 component,  Minnesotas  order  produces  a  direct  conflict  with  our  federal  law  and  policies,  and  impermissibly  encroaches  on  our  exclusive  jurisdiction  over  interstate  services  such  as  DigitalVoice.  This 
 notwithstanding,  some  commenters  argue  that  the  traditional  dual  regulatory  scheme  must  nevertheless  apply  to  DigitalVoice  because  it  is  functionally  similar  to  traditional  local  exchange  and  long  distance 

 16979,  Final  Decision  and  Order,  28  FCC  2d  267  (1971)  (Computer  I  Final  Decision);  Amendment  of  Section  64.702  of  the  Commission's  Rules  and  Regulations  (Second  Computer  Inquiry),  Docket  No.  20828,  Tentative 
 Decision  and  Further  Notice  of  Inquiry  and  Rulemaking,  72  FCC  2d  358  (1979)  (Computer  II  Tentative  Decision);  Computer  II  Final  Decision,  77  FCC  2d  384  (1980);  Amendment  of  Section  64.702  of  the  Commission's  Rules  and 
 Regulations  (Third  Computer  Inquiry),  CC  Docket  No.  85-  229,  Report  and  Order,  104  FCC  2d  958  (1986)  (Computer  III)  (subsequent  history  omitted)  (collectively  the  Computer  Inquiry  Proceeding).  In  its  Second 
 Computer  Inquiry  proceeding,  the  Commission  adopted  a  regulatory  scheme  that  distinguished  between  the  common  carriage  offering  of  basic  transmission  services  and  the  offering  of  enhanced  services.  Computer  II  Final 
 Decision,  77  FCC  2d  at  387;  see  also  Computer  III  Further  Remand  Proceedings:  Bell  Operating  Company  Provision  of  Enhanced  Services;  1998  Biennial  Regulatory  Review    Review  of  Computer  III  and  ONA  Safeguards 
 and  Requirements,  13  FCC  Rcd  6040,  6064,  para.  38  (1998).  The  former  services  are  regulated  under  Title  II  and  the  latter  services  are  not.  See  Computer  II  Final  Decision,  77  FCC  2d  at  428-  30,  432-  43,  paras.  113-  18,  124-  49 
 (indicating  it  would  not  serve  the  public  interest  to  subject  enhanced  service  providers  to  traditional  common  carrier  regulation  under  Title  II  because,  among  other  things,  the  enhanced  services  market  was  truly  competitive).  The 
 1996  Act  uses  different  terminology  (i.  e.,  telecommunications  services  and  information  services)  than  used  by  the  Commission  in  its  Computer  Inquiry  proceeding,  but  the  Commission  has  determined  that  enhanced  services 
 and  information  services  should  be  interpreted  to  extend  to  the  same  functions,  although  the  definition  in  the  1996  Act  is  even  broader.  See  Implementation  of  the  Non-  Accounting  Safeguards  of  Sections  271  and  272  of  the 
 Communications  Act  of  1934,  as  Amended,  CC  Docket  No.  96-  149,  First  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  11  FCC  Rcd  21905,  21955-  56,  para.  102  (1996)  (Non-  Accounting  Safeguards  Order) 
 (subsequent  history  omitted)  (explaining  that  all  enhanced  services  are  information  services,  but  information  services  are  broader  and  may  not  be  enhanced  services). 
 78  See,  e.  g.,  Pulver,  19  FCC  Rcd  at  3317-  20,  paras.  17-  20  (explaining  the  Commissions  policy  of  nonregulation  for 
 information  services  and  how  the  1996  Act  reinforces  this  policy).  This  policy  of  nonregulation  refers  primarily  to  economic,  public-  utility  type  regulation,  as  opposed  to  generally  applicable  commercial  consumer  protection 

 statutes,  or  similar  generally  applicable  state  laws.  Indeed,  the  preeminence  of  federal  authority  over  information  services  has  prevailed  unless  a  carrier-  provided  information  service  could  be  characterized  as  purely  intrastate, 
 see  California  v.  FCC,  905  F.  2d  1217,  1239-  42  (9th  Cir.  1990),  or  it  is  possible  to  separate  out  the  interstate  and  intrastate  components  and  state  regulation  of  the  intrastate  component  would  not  negate  valid  Commission 
 regulatory  goals.  See  California  v.  FCC,  39  F.  3d  919  (9th  Cir.  1994)  (California  III),  cert.  denied,  514  U.  S.  1050  (1995)  (affirming  Commission  preemption  of  certain  state  requirements  for  separation  of  facilities  and  personnel  in 
 the  BOC  provision  of  jurisdictionally  mixed  enhanced  services  as  state  regulations  would  negate  national  policy).  79 
 See  Computer  II  Final  Decision,  77  FCC  2d  at  425-  33,  paras.  109-  27  (citing  Computer  I,  Tentative  Decision,  27  FCC  2d  at  297-  298). 
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 voice  service.  80  Were  it  appropriate  to  base  our  decision  today  on  the  applicability  of  Minnesotas  telephone  company  regulations  to  DigitalVoice  solely  on  the  functional  similarities  between 
 DigitalVoice  and  other  existing  voice  services  (as  the  Minnesota  Commission  appears  to  have  done),  81  we  would  find  DigitalVoice  far  more  similar  to  CMRS,  which  provides  mobility,  is  often  offered  as  an  all-distance 
 service,  and  needs  uniform  national  treatment  on  many  issues.  82  Indeed,  in  view  of  these  differences,  CMRS,  including  IP-  enabled  CMRS,  is  expressly  exempt  from  the  type  of  state  economic 
 regulation  Minnesota  seeks  to  impose  on  DigitalVoice.  83  Commenters  that  argue  that  the  Act  requires  the  Commission  to  recognize  state  jurisdiction  over  DigitalVoice  to  the  extent  it  enables  intrastate 
 communications  to  occur  completely  ignore  the  considerations  that  dictate  preemption  here.  84  Indeed,  the  fact  that  a  particular  service  enables  communication  within  a  state  does  not  necessarily  subject  it  to  state 
 economic  regulation.  We  have  acknowledged  similar  intrastate  communications  capabilities  in  other  services  involving  the  Internet,  where  for  regulatory  purposes,  treatment  as  an  interstate  service  prevailed 
 despite  this  intrastate  capability.  85 
 4.  Preemption  Based  on  Impossibility 
 23.  In  this  section,  we  examine  whether  there  is  any  plausible  approach  to  separating  DigitalVoice  into  interstate  and  intrastate  components  for  purposes  of  enabling  dual  federal  and  state  regulations  to 
 coexist  without  negating  federal  policy  and  rules.  86  We  find  none.  Without  a  practical  means  to 

 80  See,  e.  g.,  ITTA  Comments  at  10-  12;  Minnesota  Commission  Comments  at  3;  MTA  Comments  at  13-  14;  RIITA 
 Comments  at  2;  Surewest  Comments  at  4-  5;  GVNW  Reply  at  2-  3;  Minnesota  Commission  Reply  at  4-  5,  7;  NASUCA  Reply  at  9,  11-  12;  Sprint  Reply  at  2-  3.  But  see  Verizon  Reply  at  2-  6. 

 81  See  Minnesota  Vonage  Order  at  8  (finding  Vonages  service  to  be  functionally  no  different  than  any  other 
 telephone  service).  82 
 Indeed,  other  commenters  note  how  DigitalVoice  is  like  CMRS.  See,  e.  g.,  California  Commission  Comments  at  20-  22;  HTBC  Comments  at  9. 

 83  See  47  U.  S.  C.    332(  c)(  3)(  A).  Pursuant  to  section  332  of  the  Act,  state  and  local  governments  are  specifically 
 preempted  from  regulating  the  entry  of  or  the  rates  charged  by  any  commercial  mobile  service  or  any  private  mobile  service.  Id.  (emphasis  added). 

 84  See,  e.  g.,  New  York  Commission  Comments  at  3;  California  Commission  Comments  at  4,  19;  NASUCA  Reply  at 
 15;  OTA/  WIT  Reply  Comment  at  8;  Sprint  Reply  at  6-  7.  85 
 For  example,  the  Commission  concluded  that  some  traffic  over  GTEs  asymmetrical  digital  subscriber  line  (ADSL)  service  would,  in  fact,  be  terminated  in  the  state  where  it  originated,  or  even  locally,  but  the  service  is  an 

 interstate  service  and  is  properly  tariffed  at  the  federal  level.  See  GTE  ADSL  Order,  13  FCC  Rcd  at  22466,  22478-  79,  paras.  1,  22.  The  Commission  left  open  the  possibility  that  a  purely  intrastate  xDSL  service  may  be  offered 
 which  would  be  tariffed  at  the  state  level.  See  id.  at  22481,  para.  27.  The  Commission  similarly  determined  that  cable  modem  service  is  an  interstate  service  because  the  points  among  which  cable  modem  communications  travel 
 are  often  in  different  states  and  countries.  See  Cable  Modem  Declaratory  Ruling,  17  FCC  Rcd  at  4832,  para.  59.  The  jurisdictionally  interstate  finding  of  cable  modem  service  was  not  an  issue  on  appeal.  See  Brand  X  Internet 
 Services  v.  FCC,  345  F.  3d  1120.  Finally,  in  Pulver,  the  Commission  held  that  Pulvers  intrastate  capabilities  should  not  remove  the  service  from  our  jurisdiction.  See  Pulver,  19  FCC  Rcd  at  3320-  22,  paras.  20-  22. 
 86  See  Louisiana  Pub.  Serv.  Commn  v.  FCC,  476  U.  S.  at  368  (holding  that  the  Supremacy  Clause  of  Article  VI  of 
 the  Constitution  provides  Congress  with  the  power  to  preempt  state  law  and  explaining  the  numerous  bases  for  preemption);  see  also  Pub.  Serv.  Commn  of  Maryland  v.  FCC,  909  F.  2d  at  1515  (citing  Natl  Assn  of  Regulatory 

 Util.  Commrs  v.  FCC,  880  F.  2d  at  429-  31);  Natl  Assn  of  Regulatory  Util.  Commrs,  880  F.  2d  at  425  (  We  conclude  that  the  Commission  may  only  preempt  state  regulation  over  intrastate  wire  communication  to  the  degree 
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 separate  the  service,  the  Minnesota  Vonage  Order  unavoidably  reaches  the  interstate  components  of  the  DigitalVoice  service  that  are  subject  to  exclusive  federal  jurisdiction.  Vonage  has  no  means  of  directly  or 
 indirectly  identifying  the  geographic  location  of  a  DigitalVoice  subscriber.  Even,  however,  if  this  information  were  reliably  obtainable,  Vonages  service  is  far  too  multifaceted  for  simple  identification  of 
 the  users  location  to  indicate  jurisdiction.  Moreover,  the  significant  costs  and  operational  complexities  associated  with  modifying  or  procuring  systems  to  track,  record  and  process  geographic  location 
 information  as  a  necessary  aspect  of  the  service  would  substantially  reduce  the  benefits  of  using  the  Internet  to  provide  the  service,  and  potentially  inhibit  its  deployment  and  continued  availability  to 
 consumers.  87 
 24.  DigitalVoice  harnesses  the  power  of  the  Internet  to  enable  its  users  to  establish  a  virtual  presence  in  multiple  locations  simultaneously,  to  be  reachable  anywhere  they  may  find  a  broadband  connection, 

 and  to  manage  their  communications  needs  from  any  broadband  connection.  The  Internets  inherently  global  and  open  architecture  obviates  the  need  for  any  correlation  between  Vonages  DigitalVoice  service 
 and  its  end  users  geographic  locations.  As  we  noted  above,  however,  the  Commission  has  historically  applied  the  geographic  end-  to-  end  analysis  to  distinguish  interstate  from  intrastate  communications.  88 
 As  networks  have  changed  and  the  services  provided  over  them  have  evolved,  the  Commission  has  increasingly  acknowledged  the  difficulty  of  using  an  end-  to-  end  analysis  when  the  services  at  issue 
 involve  the  Internet.  89  DigitalVoice  shares  many  of  the  same  characteristics  as  these  other  services  involving  the  Internet,  thus  making  jurisdictional  determinations  about  particular  DigitalVoice 
 communications  based  on  an  end-  point  approach  difficult,  if  not  impossible.  90 

 necessary  to  keep  such  regulation  from  negating  the  Commission's  exercise  of  its  lawful  authority  over  interstate  communication  service.). 
 87  See  Letter  from  William  B.  Wilhelm,  Jr.  and  Ronald  W.  Del  Sesto,  Jr.,  Counsel  for  Vonage,  to  Marlene  H.  Dortch, 
 Secretary,  FCC,  WC  Docket  No.  03-  211,  at  5  (filed  Oct.  19,  2004)  (Vonage  Oct.  19  Ex  Parte  Letter)  88 
 See  supra  para.  17.  89 
 For  example,  in  attempting  to  apply  an  end-  to-  end  analysis  to  an  incumbent  LECs  digital  subscriber  line  (DSL)  telecommunications  service  to  determine  whether  federal  or  state  tariffing  requirements  should  attach,  the 

 Commission  noted  that  an  Internet  communication  does  not  necessarily  have  a  point  of  termination  in  the  traditional  sense.  GTE  ADSL  Order,  13  FCC  Rcd  at  22478-  79,  para.  22.  In  a  later  proceeding  involving  the 
 provision  of  Telecommunications  Relay  Service  over  the  Internet,  the  Commission  similarly  noted  the  difficulty  in  pinpointing  the  origination  of  an  IP-  Relay  call  arising  over  the  Internet  because  Internet  addresses  do  not  have 
 geographic  correlates  equivalent  to  the  PSTNs  automatic  number  identifiers,  which  are  tied  to  geographic  locations,  and  thus,  there  is  no  automatic  way  to  determine  whether  any  call  is  intrastate  or  interstate.  See  Provision 
 of  Improved  Telecommunications  Relay  Services  and  Speech-  to-  Speech  Services  for  Individuals  with  Hearing  and  Speech  Disabilities,  CC  Docket  No.  98-  67,  Declaratory  Ruling  and  Second  Further  Notice  of  Proposed  Rulemaking, 
 17  FCC  7779,  7784,  para.  15  (2002)  (IP-  Relay  Second  FNPRM).  Significantly,  as  recently  as  June,  the  Commission  issued  yet  another  Further  Notice  of  Proposed  Rulemaking  in  this  proceeding,  recognizing  the  continued 
 technological  inability  to  identify  the  location  of  an  IP-  Relay  user.  See  Telecommunications  Relay  Services  and  Speech-  to-  Speech  Services  for  Individuals  with  Hearing  and  Speech  Disabilities,  CC  Docket  Nos.  90-  571,  98-  67; 
 CG  Docket  No.  03-  123,  Report  and  Order;  Order  on  Reconsideration;  Further  Notice  of  Proposed  Rulemaking,  19  FCC  Rcd  12475,  12561,  para.  221  (2004)  (2004  IP-  Relay  FNPRM).  In  Pulver,  the  Commission  concluded  that  the 
 concept  of  end  points  and  an  end-  to-  end  analysis  were  not  relevant  to  Pulvers  Internet-  based  VoIP  information  service.  See  Pulver,  19  FCC  Rcd  at  3316-  23,  paras.  15-  25. 
 90  See  Vonage  Petition  at  5,  28. 
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 25.  In  fact,  the  geographic  location  of  the  end  user  at  any  particular  time  is  only  one  clue  to  a  jurisdictional  finding  under  the  end-  to-  end  analysis.  The  geographic  location  of  the  termination  of  the 
 communication  is  the  other  clue;  yet  this  is  similarly  difficult  or  impossible  to  pinpoint.  This  impossibility  results  from  the  inherent  capability  of  IP-  based  services  to  enable  subscribers  to  utilize 
 multiple  service  features  that  access  different  websites  or  IP  addresses  during  the  same  communication  session  and  to  perform  different  types  of  communications  simultaneously,  none  of  which  the  provider  has 
 a  means  to  separately  track  or  record.  91  For  example,  a  DigitalVoice  user  checking  voicemail  or  reconfiguring  service  options  would  be  communicating  with  a  Vonage  server.  A  user  forwarding  a 
 voicemail  via  e-  mail  to  a  colleague  using  an  Internet-  based  e-  mail  service  would  be  communicating  with  a  different  Internet  server  or  user.  An  incoming  call  to  a  user  invoking  forwarding  features  could 
 terminate  anywhere  the  DigitalVoice  user  has  programmed.  A  communication  from  a  DigitalVoice  user  to  a  similar  IP-  enabled  providers  user  would  terminate  to  a  geographic  location  unknown  either  to 
 Vonage  or  to  the  other  provider.  92  These  functionalities  in  all  their  combinations  form  an  integrated  communications  service  designed  to  overcome  geography,  not  track  it.  Indeed,  it  is  the  total  lack  of 
 dependence  on  any  geographically  defined  location  that  most  distinguishes  DigitalVoice  from  other  services  whose  federal  or  state  jurisdiction  is  determined  based  on  the  geographic  end  points  of  the 
 communications.  93  Consequently,  Vonage  has  no  service-  driven  reason  to  know  users  locations,  94  and 

 91  See,  e.  g.,  Vonage  Oct.  19  Ex  Parte  Letter  at  4-  5  (explaining  that  in  addition  to  having  no  way  to  determine  a 
 geographic  origination  point,  determining  a  geographic  destination  is  not  possible  either);  see  also  Letter  from  Glenn  T.  Reynolds,  BellSouth  Corp.,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  04-  36;  03-  211, 

 Attach.  at  6-  12  (filed  Oct.  26,  2004)  (BellSouth  Oct.  26  Ex  Parte  Letter)  (explaining  the  multitude  of  simultaneous  capabilities  during  a  single  communication  that  makes  a  point  of  destination  unknown);  Letter  from  Howard 
 Symons,  Counsel  for  NTCA,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  36  Attach.  at  2-  3  (filed  Oct.  28,  2004)  (NCTA  Oct.  28  Ex  Parte  Letter)  (describing  the  core  integrated  features  that  cable  VoIP 
 provides  to  subscribers);  Letter  from  Adam  D.  Krinsky,  Counsel  for  CTIA,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  04-  36;  03-  211,  (filed  Oct.  25,  2004)  (CTIA  Oct.  25  Ex  Parte  Letter)  (explaining  that  IP-  enabled 
 services  do  not  have  definable  termination  points).  92 
 See  Vonage  Oct.  19  Ex  Parte  Letter  at  4-  5.  93 
 We  note  that  these  integrated  capabilities  and  features  are  not  unique  to  DigitalVoice,  but  are  inherent  features  of  most,  if  not  all,  IP-  based  services  having  basic  characteristics  found  in  DigitalVoice,  including  those  offered  or 

 planned  by  facilities-  based  providers.  See  infra  note  113  for  a  brief  summary  of  these  basic  characteristics;  see  also,  e.  g.,  Letter  from  Kathleen  Grillo,  Verizon,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  03-  211  at  1-  3 
 (filed  Nov.  1,  2004)  (Verizon  Nov.  1  Ex  Parte  Letter)  (describing  Verizons  VoiceWing  service);  Letter  from  Cronan  OConnell,  Qwest,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  03-  211  (filed  Sept.  27,  2004) 
 (Qwest  Sept.  27  Ex  Parte  Letter)  (describing  Qwests  VoIP  architecture  and  service);  Letter  from  Judy  Sello,  AT&  T,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  No.  03-  211  at  1-  4,  (filed  Oct.  21,  2004)  (AT&  T  Oct  21 
 Ex  Parte  Letter)  (describing  AT&  Ts  CallVantage  service);  Letter  from  James  K.  Smith,  Executive  Director    Federal  Regulatory,  SBC,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  29,  04-  36,  Attach.  at 
 4-  11  (filed  Oct.  8,  2004)  (SBC  Oct.  8  Ex  Parte  Letter)  (describing  SBCs  VoIP  architecture  and  service);  Letter  from  Glenn  T.  Reynolds,  Vice  President    Federal  Regulatory,  BellSouth,  to  Marlene  H.  Dortch,  Secretary,  FCC, 
 WC  Docket  Nos.  03-  211,  04-  36,  Attach.  at  6-  12  (filed  Oct.  26,  2004)  (BellSouth  Oct.  26  Ex  Parte  Letter)  (describing  BellSouths  VoIP  architecture  and  service);  Letter  from  Glenn  T.  Reynolds,  Vice  President    Federal 
 Regulatory,  BellSouth,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  36,  Attach.  at  4  (filed  Oct.  7,  2004)  (BellSouth  Oct.  7  Ex  Parte  Letter)  (describing  BellSouths  VoIP  architecture  and  service);  Letter  from 
 Howard  J.  Symons,  Counsel  for  National  Cable  &  Telecommunications  Association  (NCTA),  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  36,  Attach.  at  3-  5  (filed  Oct.  28,  2004)  (NCTA  Oct.  28  Ex 
 Parte  Letter)  (describing  cable  VoIP  architecture). 
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 Vonage  asserts  it  presently  has  no  way  to  know.  95  Furthermore,  to  require  Vonage  to  attempt  to  incorporate  geographic  end-  point  identification  capabilities  into  its  service  solely  to  facilitate  the  use  of 
 an  end-  to-  end  approach  would  serve  no  legitimate  policy  purpose.  96  Rather  than  encouraging  and  promoting  the  development  of  innovative,  competitive  advanced  service  offerings,  97  we  would  be  taking 
 the  opposite  course,  molding  this  new  service  into  the  same  old  familiar  shape. 
 26.  In  the  absence  of  a  capability  to  identify  directly  DigitalVoice  communications  that  originate  and  terminate  within  the  boundaries  of  Minnesota,  we  still  consider  whether  some  method  exists  to  identify 

 such  communications  indirectly,  such  that  Minnesotas  regulations  could  nonetheless  apply  to  only  that  intrastate  usage  such  as  voice  calls  between  persons  located  in  the  same  state.  98  For  example,  assume 
 Minnesota  were  to  use  DigitalVoice  subscribers  NPA/  NXXs  as  a  proxy  for  those  subscribers  geographic  locations  when  making  or  receiving  calls.  If  a  subscribers  NPA/  NXX  were  associated  with  Minnesota 
 under  the  NANP,  Minnesotas  telephone  company  regulations  would  attach  to  every  DigitalVoice  communication  that  occurred  between  that  subscriber  and  any  other  party  having  a  Minnesota  NPA/  NXX. 
 But  because  subscribers  residing  anywhere  could  obtain  a  Minnesota  NPA/  NXX,  a  subscriber  may  never  be  present  in  Minnesota  when  communicating  with  another  party  that  is,  yet  Minnesota  would  treat  those 
 calls  as  subject  to  its  jurisdiction.  99 

 94  See  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  160,  170  (S.  D.  N.  Y.  1997)  (  Internet  protocols  were 
 designed  to  ignore  rather  than  document  geographic  location.).  95 
 We  acknowledge  that  certain  geolocation  products  may  be  capable  of  identifying,  to  some  degree,  the  geographic  location  of  a  Vonage  user  in  the  future,  see,  e.  g.,  Sprint  Reply  at  7,  but  the  record  does  not  reflect  that  such 

 information  is  readily  obtainable  at  this  time.  See,  e.  g.,  8x8  Comments  at  14-  15.  Should  Vonage  decide  in  the  future  to  incorporate  geolocation  capabilities  into  its  service  to  facilitate  additional  features  that  may  be  dependent 
 on  reliable  location  determining  capabilities,  e.  g.,  E911-  type  features  or  law  enforcement  surveillance  capabilities,  this  would  not  alter  the  fact  that  the  service  enables  the  users  location  to  change  continually.  See  Vonage  Oct.  19 
 Ex  Parte  Letter  at  3-  6  (explaining  how  user  location  information  for  emergency  services  purposes  would  have  no  relevance  to  an  end  to  end  jurisdictional  analysis  for  DigitalVoice). 
 96  See  Pulver,  19  FCC  Rcd  at  3320-  21,  para.  21  (  Attempting  to  require  Pulver  to  locate  its  members  for  the  purpose 
 of  adhering  to  a  regulatory  analysis  that  served  another  network  would  be  forcing  changes  on  this  service  for  the  sake  of  regulation  itself,  rather  than  for  any  particular  policy  purpose.). 

 97  See,  e.  g.,  Letter  from  Staci  L.  Pies,  The  VON  Coalition,  to  Marlene  H.  Dortch,  Secretary,  FCC,  CC  Docket  No. 
 01-  92;  WC  Docket  Nos.  02-  361,  03-  211,  03-  266,  04-  36,  Attach.  at  1  (filed  Aug.  19,  2004)  (VON  Coalition  Aug.  19  Ex  Parte  Letter). 

 98  Where  the  Commission  has  found  it  difficult  to  apply  an  end-  to-  end  approach  for  jurisdictional  purposes,  it  has 
 proposed  or  adopted  proxy  or  allocation  mechanisms  to  approximate  an  end-  to-  end  result.  See,  e.  g.,  GTE  ADSL  Order,  13  FCC  Rcd  at  22479,  para.  23  (applying  the  10%  rule  for  determining  interstate  jurisdiction  for  federal 

 tariffing  purposes);  IP-  Relay  Second  FNPRM,  17  FCC  Rcd  at  7784,  para.  15  (proposing  either  an  allocator  to  approximate  the  mix  of  interstate/  intrastate  traffic  or  a  user  self-  identification  mechanism  to  identify  its  end-  point 
 location);  2004  IP-  Relay  FNPRM,  19  FCC  Rcd  at  12561-  64,  paras.  221-  30  (proposing  either  user-  registration  or  allocation  mechanisms  to  determine  interstate  or  intrastate  use;  asking  whether,  in  the  alternative,  all  IP-  Relay  calls 
 should  simply  be  deemed  interstate).  We  find  a  percentage  proxy  to  be  unhelpful  in  addressing  the  conflict  between  the  federal  and  state  regulatory  regimes  (in  particular,  the  tariffing  and  certification  requirements)  at  issue 
 in  this  proceeding,  because  using  such  a  proxy  would  not  avoid  frustration  of  the  Commissions  policy  objectives  discussed  above.  See  supra  section  III.  A.  3.  But  see,  e.  g.,  MTA  Comments  at  10. 
 99  In  this  example,  if  we  further  assume  Minnesota  requires  entry  certification  for  Vonage,  but  has  an  entry  condition 
 that  Vonage  cannot  meet,  Vonage  could  be  subject  to  state  sanctions  for  operating  in  the  state  without  authority  to 
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 27.  Similarly,  if  a  Minnesota  NPA/  NXX  subscriber  residing  in  Minnesota  used  its  service  outside  the  state  to  call  someone  in  Minnesota,  that  call  would  appear  to  be  an  intrastate  call  when  it  is  actually 
 interstate.  Some  commenters  suggest  that  because  Vonage  markets  DigitalVoice  to  provide  local  and  long  distance  calls  it  surely  has  an  ability  to  distinguish  between  intrastate  and  interstate  calls.  100  These 
 commenters  fail  to  recognize  that  these  calls  are  not  local  and  long  distance  in  the  sense  that  they  are  for  traditional  wireline  telephone  services.  Rather,  like  we  have  seen  with  the  proxy  example  above, 
 Vonage  describes  these  calling  capabilities  for  convenience  in  terms  that  its  subscribers  understand.  A  DigitalVoice  call  that  would  be  deemed  local,  for  example,  is  actually  a  call  between  two  NPA/  NXXs 
 associated  with  particular  rate  centers  in  a  particular  state,  yet  when  the  actual  communication  occurs  one  or  both  parties  can  be  located  outside  those  rate  centers,  outside  the  state,  or  even  on  opposite  ends  of  the 
 world. 
 28.  We  further  consider  whether  Minnesota  could  assert  jurisdiction  over  DigitalVoice  communications  based  on  whether  the  subscribers  billing  address  or  address  of  residence  are  in 

 Minnesota.  This  too  fails.  When  a  subscriber  with  a  Minnesota  billing  address  or  address  of  residence  uses  DigitalVoice  from  any  location  outside  the  state  to  call  a  party  located  in  Minnesota,  Minnesota 
 would  treat  that  communication  as  intrastate  based  on  the  address  proxy  for  that  subscribers  location,  yet  in  actuality  it  would  be  an  interstate  call.  101 

 29.  These  proxies  are  very  poor  fits,  yet  even  their  implementation  would  impose  substantial  costs  retrofitting  DigitalVoice  into  a  traditional  voice  service  model  for  the  sole  purpose  of  making  it  easier  to 
 apply  traditional  voice  regulations  to  only  a  small  aspect  of  Vonages  integrated  service.  102  Forcing  such  changes  to  this  service  would  greatly  diminish  the  advantages  of  the  Internet's  ubiquitous  and  open  nature 
 that  inspire  the  offering  of  services  such  as  DigitalVoice  in  the  first  instance.  103  Indeed,  Vonage  would  have  to  change  multiple  aspects  of  its  service  operations  that  are  not  nor  were  ever  designed  to 
 incorporate  geographic  considerations,  including  modifications  to  systems  that  track  and  identify  subscribers  communications  activity  and  facilitate  billing;  the  development  of  new  rate  and  service 
 structures;  and  sales  and  marketing  efforts,  104  just  for  regulatory  purposes.  105  The  Commission  has  previously  recognized  the  significant  efforts  and  inefficiency  to  attempt  to  separate  out  an  intrastate 

 the  extent  any  of  its  customers  nationwide  obtain  Minnesota  NPA/  NXXs  and  use  the  service  to  communicate  with  someone  in  Minnesota  even  though  that  subscriber  never  had  a  physical  presence  in  Minnesota. 
 100  See,  e.  g.,  NASUCA  Reply  at  15. 
 101  In  this  example,  if  we  further  assume  Minnesota  has  imposed  a  specific  rate  requirement  on  DigitalVoices 
 intrastate  communications,  this  rate  requirement  would  apply  to  all  DigitalVoice  communications  made  by  that  subscriber  to  someone  in  Minnesota  even  though  many  of  those  communications  are  interstate  under  the  Act. 

 102  See  Pulver,  19  FCC  Rcd  at  3321-  23,  paras.  22,  24  (finding  it  similarly  impossible  to  separate  Pulvers  VoIP 
 service).  103 
 See,  e.  g.,  Vonage  Oct.  19  Ex  Parte  Letter  at  6.  104 
 In  reviewing  a  challenge  to  a  Commission  requirement  for  BOC  joint  CPE/  service  marketing  because  it  would  surely  affect  charges  for  and  regulate  intrastate  communications  services,  and  preemption  of  inconsistent  state 

 regulation,  the  D.  C.  Circuit  affirmed  the  Commission  stating  that  [  e]  ven  if  [it]  were  a  purely  intrastate  service,  the  FCC  might  well  have  authority  to  preemptive  regulate  its  marketing  if    as  would  appear  here    it  was  typically  sold 
 in  a  package  with  interstate  services.  Marketing  realities  might  themselves  create  inseparability.  Illinois  Bell  Tel.  Co.  v.  FCC,  883  F.  2d  104,  112-  13  &  n.  7  (D.  C.  Cir.  1989)  (referencing  Louisiana  Pub.  Serv.  Commn,  476  U.  S. 
 355).  105 
 See  generally  Vonage  Oct.  19  Ex  Parte  Letter. 
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 component  of  other  services  for  certain  regulatory  purposes  where  the  provider,  like  Vonage  here,  had  no  service-  driven  reason  to  incorporate  such  capability  into  its  operations.  106  We  have  declined  to  require 
 such  separation  in  those  circumstances,  treating  the  services  at  issue  as  jurisdictionally  interstate  for  the  particular  regulatory  purpose  at  issue  and  preempting  state  regulation  where  necessary.  107  For  example,  in 
 preempting  a  state  regulation  specifying  default  per  line  blocking  of  a  customers  Caller  ID  for  intrastate  calls  based  on  impossibility,  the  Commission  found  that  we  need  not  demonstrate  absolute 
 future  impossibility  to  justify  federal  preemption  here.  We  need  only  show  that  interstate  and  intrastate  aspects  of  a  regulated  service  or  facility  are  inseverable  as  a  practical  matter  in  light  of  prevailing 
 technological  and  economic  conditions.  108 
 30.  In  the  case  of  DigitalVoice,  Vonage  could  not  even  avoid  violating  Minnesotas  order  by  trying  not  to  provide  intrastate  communications  in  that  state.  109  For  the  same  reasons  that  Vonage  cannot 

 identify  a  communication  that  occurs  within  the  boundaries  of  a  single  state,  it  cannot  prevent  its  users  from  making  such  calls  by  attempting  to  block  any  calls  between  people  in  Minnesota.  110  Indeed,  Vonage 
 could  not  avoid  similar  intrastate  regulations  if  imposed  by  any  of  the  other  more  than  50  separate  jurisdictions.  Due  to  the  intrinsic  ubiquity  of  the  Internet,  nothing  short  of  Vonage  ceasing  to  offer  its 
 service  entirely  could  guarantee  that  any  subscriber  would  not  engage  in  some  communications  where  a 

 106  See  MTS  and  WATS  Market  Structure,  Amendment  of  Part  36  of  the  Commissions  Rules  and  Establishment  of  a 
 Joint  Board,  CC  Docket  Nos.  78-  72,  80-  286,  Decision  and  Order,  4  FCC  Rcd  5660,  n.  7  (1989)  (MTS/  WATS  Market  Structure  Separations  Order)  (finding  that  mixed  use  special  access  lines  carrying  more  than  a  de  minimis  amount 

 of  interstate  traffic  to  private  line  systems  are  subject  to  the  Commissions  jurisdiction  for  jurisdictional  separations  purposes  because  separating  interstate  from  intrastate  traffic  on  many  such  lines  could  not  be  measured  without 
 significant  additional  administrative  efforts);  see  also  Qwest  Corp.  v.  Minnesota  Pub.  Utils.  Commn,  380  F.  3d  367,  374  (finding  that  the  Commissions  preemptive  intent  concerning  the  de  minimis  rule  relates  to  cost  allocation 
 for  ratemaking  purposes  rather  than  plenary  regulatory  authority  but  stating  that  the  Commission  certainly  has  the  wherewithal  to  preempt  state  regulation  in  this  area  if  it  so  desires)  (emphasis  added);  BellSouth  MemoryCall,  7 
 FCC  Rcd  at  1620,  para.  7  (preempting  order  of  a  state  commission  imposing  regulatory  conditions  on  the  offering  of  the  intrastate  portion  of  a  jurisdictionally  mixed  service  because  of  the  expense,  operational,  and  technical 
 difficulties  associated  with  identifying  the  intrastate  portion  and  the  effect  it  would  likely  have  on  the  providers  continued  offering  of  the  interstate  portion). 
 107  See,  e.  g.,  MTS/  WATS  Market  Structure  Separations  Order,  4  FCC  Rcd  5660,  n.  7;  BellSouth  MemoryCall,  7  FCC 
 Rcd  at  1620,  para.  7  108 
 See  Rules  and  Policies  Regarding  Calling  Number  Identification  Service    Caller  ID,  Memorandum  Opinion  and  Order  on  Reconsideration,  Second  Report  and  Order  and  Third  Notice  of  Proposed  Rulemaking,  10  FCC  Rcd 

 11700,  11727-  28,  para.  77  (1995)  (citing  California  v.  FCC,  39  F.  3d  919  (9th  Cir.  1994)),  affd,  California  v.  FCC,  75  F.  3d  1350  (9th  Cir.  1996).  The  Ninth  Circuit  affirmed  the  Commissions  preemption  in  this  case,  finding  it  to  fit 
 within  the  impossibility  exception.  See  California  v.  FCC,  75  F.  3d  at  1360.  Indeed,  when  possible,  this  Commission  prefers  that  economic  and  market  considerations  drive  the  development  of  technology,  rather  than 
 regulatory  requirements.  See,  e.  g.,  Review  of  the  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange  Carriers;  Implementation  of  the  Local  Competition  Provisions  of  the  Telecommunications  Act  of  1996; 
 Deployment  of  Wireline  Services  Offering  Advanced  Telecommunications  Capability,  Order  on  Reconsideration,  CC  Docket  Nos.  01-  338,  96-  98,  98-  147,  FCC  04-  248,  para.  19  (rel.  Oct.  18,  2004)  (concluding  that  decision  regarding 
 which  broadband  technologies  to  deploy  is  best  left  to  .  .  .  the  market  .  .  .  .  We  decline  to  second-  guess  or  skew  those  technology  choices  .  .  .  .). 
 109  See  Vonage  Petition  at  v,  31;  see  also  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  171  (explaining  that  no 
 aspect  of  the  Internet  can  fairly  be  closed  off  to  users  from  any  state).  110 
 See  Vonage  Petition  at  v,  31. 
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 state  may  deem  that  communication  to  be  intrastate  thereby  subjecting  Vonage  to  its  economic  regulations  absent  preemption. 
 31.  There  is,  quite  simply,  no  practical  way  to  sever  DigitalVoice  into  interstate  and  intrastate  communications  that  enables  the  Minnesota  Vonage  Order  to  apply  only  to  intrastate  calling 
 functionalities  without  also  reaching  the  interstate  aspects  of  DigitalVoice,  nor  is  there  any  way  for  Vonage  to  choose  to  avoid  violating  that  order  if  it  continues  to  offer  DigitalVoice  anywhere  in  the 
 world.  111  Thus,  to  whatever  extent,  if  any,  DigitalVoice  includes  an  intrastate  component,  because  of  the  impossibility  of  separating  out  such  a  component,  we  must  preempt  the  Minnesota  Vonage  Order  because 
 it  outright  conflicts  with  federal  rules  and  policies  governing  interstate  DigitalVoice  communications. 
 32.  Indeed,  the  practical  inseverability  of  other  types  of  IP-  enabled  services  having  basic  characteristics  similar  to  DigitalVoice  would  likewise  preclude  state  regulation  to  the  same  extent  as 

 described  herein.  Specifically,  these  basic  characteristics  include:  a  requirement  for  a  broadband  connection  from  the  users  location;  a  need  for  IP-  compatible  CPE;  and  a  service  offering  that  includes  a 
 suite  of  integrated  capabilities  and  features,  able  to  be  invoked  sequentially  or  simultaneously,  that  allows  customers  to  manage  personal  communications  dynamically,  including  enabling  them  to  originate  and 
 receive  voice  communications  and  access  other  features  and  capabilities,  even  video.  112  In  particular,  the  provision  of  tightly  integrated  communications  capabilities  greatly  complicates  the  isolation  of  intrastate 
 communication  and  counsels  against  patchwork  regulation.  Accordingly,  to  the  extent  other  entities,  such  as  cable  companies,  provide  VoIP  services,  113  we  would  preempt  state  regulation  to  an  extent  comparable 
 to  what  we  have  done  in  this  Order. 

 111  See  Public  Util.  Commn  of  Texas  v.  FCC,  886  F.  2d  1325  (citing  Louisiana  Pub.  Serv.  Commn  v.  FCC,  476  U.  S. 
 355,  375,  the  court  upheld  preemption  of  a  Texas  Public  Utility  Commission  order  prohibiting  an  incumbent  LEC  from  providing  interconnection  to  the  PSTN  to  a  customer  where  the  FCC  cannot  separate  the  interstate  and  the 

 intrastate  components  of  [its]  asserted  regulation.);  Public  Serv.  Commn  of  Maryland  v.  FCC,  909  F.  2d  at  1515  (citing  Louisiana  Pub.  Serv.  Commn  v.  FCC,  476  U.  S.  355,  375,  to  uphold  Commissions  preemption  of  a  state 
 commissions  prescribed  rates  for  LEC  charges  to  interexchange  carriers  for  customer  disconnections  based  on  the  impossibility  exception). 
 112  See,  e.  g.,  SBC  Oct.  8  Ex  Parte  Letter,  Attach.  at  4-  11;  BellSouth  Oct.  26  Ex  Parte  Letter,  Attach.  at  6-  12; 
 BellSouth  Oct.  7  Ex  Parte  Letter,  Attach.  at  4.  113 
 See,  e.  g.,  Letter  from  J.  G.  Harrington,  Counsel  for  Cox  Communications,  Inc.,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  36,  at  1-  2  (filed  Oct.  27,  2004)  (  This  network  design  also  permits  providers  to 

 offer  a  single,  integrated  service  that  includes  both  local  and  long  distance  calling  and  a  host  of  other  features  that  can  be  supported  from  national  or  regional  data  centers  and  accessed  by  users  across  state  lines.  .  .  .  In  addition  to 
 call  setup,  these  functions  include  generation  of  call  announcements,  record-  keeping,  CALEA,  voice  mail  and  other  features  such  as  *67,  conferencing  and  call  waiting.  ...  [T]  here  are  no  facilities  at  the  local  level  of  a  managed  voice 
 over  IP  network  that  can  perform  these  functions.);  Letter  from  Henk  Brands,  Counsel  for  Time  Warner  Inc.,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  36,  at  2,  9  (filed  Oct.  29,  2004)  (Time  Warner 
 Oct.  29  Ex  Parte  Letter)  ([  T]  he  Commission  should  take  a  broader  approach  by  recognizing  additional  characteristics  of  IP-  based  voice  services  and  extend  the  benefits  of  preemption  to  all  VoIP  providers.  .  .  .  [B]  y  its 
 nature,  VoIP  is  provided  on  a  multistate  basis,  making  different  state  regulatory  requirements  particularly  debilitating.);  NCTA  Oct.  28  Ex  Parte  Letter,  Attach.  at  1  (  Cable  VoIP  offers  consumers  an  integrated  package  of 
 voice  and  enhanced  features  that  are  unavailable  from  traditional  circuit-  switched  service.  .  .  .  A  cable  company  may  have  no  idea  whether  a  customer  is  accessing  these  features  from  home  or  from  a  remote  location.  The  integral 
 nature  of  these  features  and  functions  renders  cable  VoIP  service  an  interstate  offering  subject  to  exclusive  FCC  jurisdiction.  .  .  .  Not  every  cable  VoIP  service  has  the  same  mix  of  features  and  functionalities  .  .  .  ,  but  all  cable 
 VoIP  offers  the  types  of  enhancements  that  render  it  an  interstate  service.  Similarly,  while  the  network  architecture 
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 5.  Policies  and  Goals  of  the  1996  Act  Consistent  With  Preemption  of  Minnesotas  Regulations 
 33.  We  find  that  Congresss  directives  in  sections  230  and  706  of  the  1996  Act  are  consistent  with  our  decision  to  preempt  Minnesotas  order.  As  we  have  noted,  Congress  has  included  a  number  of 
 provisions  in  the  1996  Act  that  counsel  a  single  national  policy  for  services  like  DigitalVoice.  114 
 34.  Congresss  definition  of  the  Internet  in  the  Act  recognizes  its  global  nature.  115  In  addition  to  defining  the  Internet  in  section  230  of  the  Act,  Congress  used  section  230  to  articulate  its  national  Internet 

 policy.  There,  Congress  stated  that  [  i]  t  is  the  policy  of  the  United  States  -  to  preserve  the  vibrant  and  competitive  free  market  that  presently  exists  for  the  Internet  and  other  interactive  computer  services, 
 unfettered  by  Federal  or  State  regulation.  116  We  have  already  determined  in  a  prior  order  that  section  230(  b)(  2)  expresses  Congresss  clear  preference  for  a  national  policy  to  accomplish  this  objective.  117  In 
 Pulver,  we  found  this  policy  to  provide  support  for  preventing  state  attempts  to  promulgate  regulations  that  would  apply  to  Pulvers  service.  118  While  we  found  Pulvers  FWD  service  to  be  an  information 

 of  each  cable  VoIP  system  will  not  be  identical,  they  share  the  same  centralized  network  design  that  impart  an  interstate  nature.);  Letter  from  Daniel  L.  Brenner,  Senior  Vice  President,  Law  &  Regulatory  Policy,  NCTA,  to 
 Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  36,  Attach.  at  1  (filed  Oct.  27,  2004)  (  Functions  integral  to  every  call,  such  as  CALEA  compliance,  voicemail  recording,  storage,  and  retrieval,  call  record-  keeping, 
 3-  way  calling  and  other  functions  are  provided  from  these  central  facilities.  These  facilities  are  often  located  in  a  state  different  from  the  origin  of  the  call.). 
 114  See  supra  para.  14;  see  also,  e.  g.,  BellSouth  Comments  at  3;  SBC  Comments  at  2;  VON  Coalition  Comments  at 
 13;  MCI/  CompTel  Reply  at  11;  VON  Coalition  Aug.  19  Ex  Parte  Letter,  Attach  at  12-  13;  Time  Warner  Oct.  29  Ex  Parte  Letter  at  8-  9;  Letter  from  Carolyn  W.  Brandon,  Vice  President,  Policy,  CTIA,  to  Marlene  H.  Dortch, 

 Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  36,  at  2  (filed  Nov.  2,  2004).  115 
 In  section  230(  f)  of  the  Act,  Congress  describes  the  Internet  as  an  international  network  of  federal  and  non-federal  interoperable  packet  switched  data  networks.  See  47  U.  S.  C.    230(  f)(  1)  (emphasis  added).  Similarly,  in 

 section  231,  the  Internet  is  defined  in  terms  of  computer  facilities,  transmission  media,  equipment  and  software  comprising  the  interconnected  worldwide  network  of  computer  networks.  47  U.  S.  C.    231(  e)(  3)  (emphasis 
 added).  Courts  have  similarly  described  it.  See,  e.  g.,  Reno  v.  ACLU,  521  U.  S.  844,  849  (1997)  (  The  Internet  is  an  international  network  of  interconnected  computers.);  see  also  Zeran  v.  America  Online,  Inc.,  129  F.  3d  327,  334 
 (4th  Cir.  1997)  (stating  that  section  230  represents  Congresss  approach  to  a  problem  of  national  and  international  dimension  whose  international  character  is  apparent).  DigitalVoice  is  a  service  that  falls  squarely  within  the 
 phrase  Internet  and  other  interactive  computer  services  as  defined  in  sections  230(  f)(  1)  &  230(  f)(  2),  contrary  to  the  claims  of  some  commenters.  See  Minnesota  Independent  Coalition  Comments  at  5  (claiming  230(  f)  definitions 
 pertain  to  content  services  which  DigitalVoice  does  not  meet).  While  we  do  not  decide  the  classification  of  DigitalVoice  today  so  as  to  specify  what  type  of  interactive  computer  service  it  is  under  section  230(  f)(  2),  that 
 determination  is  unnecessary  for  purposes  of  demonstrating  its  nexus  to  section  230.  DigitalVoice  is  unquestionably  an  Internet  service  as  defined  in  section  230(  f)(  1),  a  definition  which  is  not  limited  to  any 
 particular  content  as  we  discuss  in  more  detail  below.  116 
 47  U.  S.  C.    230(  b)(  2).  117 
 See  Pulver,  19  FCC  Rcd  at  3319,  para.  18  n.  66.  118 
 See  id.  We  found  Pulvers  FWD  service  to  be  an  information  service    a  determination  which  further  supported  a  national  federal  regulatory  regime  for  that  service.  Indeed,  were  we  to  reach  a  similar  statutory  information 

 service  classification  determination  for  DigitalVoice  in  this  Order,  there  would  be  no  question  that  Congress  intended  it  to  remain  free  from  state-  imposed  economic,  public-  utility  type  regulation,  consistent  with  the 
 Commissions  long-  standing  policy  of  non-  regulation  for  information  services.  See  id.  at  3317-  22,  paras.  17-  22.  In  Pulver,  we  explained  that  through  codifying  the  Commissions  decades  old  distinction  between  basic  services  and 
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 service,  the  Internet  policy  Congress  included  in  section  230  is  indifferent  to  the  statutory  classification  of  services  that  may  promote  its  continued  development.  119  Rather,  it  speaks  generally  to  the  Internet  and 
 other  interactive  computer  services,  a  phrase  that  plainly  embraces  DigitalVoice  service.  120  Thus,  irrespective  of  the  statutory  classification  of  DigitalVoice,  it  is  embraced  by  Congresss  policy  to 
 promote  the  continued  development  and  preserve  the  vibrant  and  competitive  free  market  for  these  types  of  services.  121 

 35.  While  the  majority  of  those  commenting  on  the  applicability  of  section  230  in  this  proceeding  share  this  view,  122  others  claim  that  section  230  relates  only  to  content-  based  services  and  DigitalVoice  is 
 not  the  type  of  content-  based  service  Congress  intended  to  reach.  123  We  are  cognizant,  as  we  must  be,  of  context  as  we  review  the  statute,  but  we  look  primarily  to  the  words  Congress  chose  to  use.  124  While  we 
 acknowledge  that  the  title  of  section  230  refers  to  offensive  material,  the  general  policy  statements  regarding  the  Internet  and  interactive  computer  services  contained  in  the  section  are  not  similarly 
 confined  to  offensive  material.  In  the  case  of  section  230,  Congress  articulated  a  very  broad  policy  regarding  the  Internet  and  other  interactive  computer  services  without  limitation  to  content-  based 
 services.  Through  codifying  its  Internet  policy  in  the  Commissions  organic  statute,  Congress  charges  the  Commission  with  the  ongoing  responsibility  to  advance  that  policy  consistent  with  our  other  statutory 
 obligations.  Accordingly,  in  interpreting  section  230s  phrase  unfettered  by  Federal  or  State  regulation,  we  cannot  permit  more  than  50  different  jurisdictions  to  impose  traditional  common  carrier  economic 
 regulations  such  as  Minnesotas  on  DigitalVoice  and  still  meet  our  responsibility  to  realize  Congresss  objective. 

 enhanced  services  as  telecommunications  services  and  information  services,  respectively,  in  the  1996  Act,  and  by  specifically  excluding  information  services  from  the  ambit  of  Title  II,  Congress  indicated,  consistent  with  the 
 Commissions  long-  standing  policy  of  nonregulation,  that  information  services  not  be  regulated.  See  id.  at  3318-  19,  para.  18;  see  also  Non-  Accounting  Safeguards  Order,  11  FCC  Rcd  at  21955-  56,  para.  102;  IP-  Enabled  Services 
 Proceeding,  19  FCC  Rcd  at  4879-  81,  4890-  91,  paras.  25-  27,  39.  While  Congress  has  indicated  that  information  services  are  not  subject  to  the  type  of  regulation  inherent  in  Title  II,  Congress  has  provided  the  Commission  with 
 ancillary  authority  under  Title  I  to  impose  such  regulations  as  may  be  necessary  to  carry  out  its  mandates  under  the  Act.  Although  the  Commission  has  clear  authority  to  do  so,  it  has  only  rarely  sought  to  regulate  information 
 services  using  its  Title  I  ancillary  authority.  See  Implementation  of  Section  255  and  251(  a)(  2)  of  the  Communications  Act  of  1934,  as  Enacted  by  the  Telecommunications  Act  of  1996;  Access  to  Telecommunications 
 Service,  Telecommunications  Equipment  and  Customer  Premises  Equipment  by  Persons  with  Disabilities,  WT  Docket  No.  96-  198,  Report  and  Order  and  Further  Notice  of  Inquiry,  16  FCC  Rcd  6417  (1999). 
 119  47  U.  S.  C.    230(  b)(  1). 
 120  47  U.  S.  C.    230(  b)(  1),  (2)  (emphasis  added).  Indeed,  the  communications  that  occur  when  a  subscriber  uses  the 
 DigitalVoice  service  are  Internet  communications,  no  less  than  e-  mail,  instant  messaging,  or  chat  rooms.  See,  e.  g.,  VON  Coalition  Aug.  19  Ex  Parte  Letter,  Attach  at  2.  Although  DigitalVoice  may  be  functionally  similar  in  some 

 respects  to  voice  communications  that  are  not  dependent  upon  the  Internet,  this  does  not  change  the  fact  that  DigitalVoice  is  an  Internet-  based  communications  service.  See  also  supra  note  115. 
 121  47  U.  S.  C.    230(  b)(  1),  (2)  (emphasis  added). 
 122  See,  e.  g.,  MCI/  CompTel  Comments  at  11;  Motorola  Comments  at  12;  SBC  Comments  at  2-  4;  VON  Coalition 
 Comments  at  13;  AT&  T  Reply  at  2;  Vonage  Aug.  13  Ex  Parte  Letter,  Attach.  at  3;  VON  Coalition  Aug.  19  Ex  Parte  Letter,  Attach.  at  13. 

 123  See,  e.  g.,  California  Commission  Comments  at  15-  17;  Minnesota  Independent  Coalition  Comments  at  4-  6;  MTA 
 Comments  at  6.  124 
 See  47  U.  S.  C.    230. 
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 36.  We  are  also  guided  by  section  706  of  the  1996  Act,  which  directs  the  Commission  (and  state  commissions  with  jurisdiction  over  telecommunications  services)  to  encourage  the  deployment  of 
 advanced  telecommunications  capability  to  all  Americans  by  using  measures  that  promote  competition  in  the  local  telecommunications  market  and  removing  barriers  to  infrastructure  investment.  125  Internet-based 
 services  such  as  DigitalVoice  are  capable  of  being  accessed  only  via  broadband  facilities,  i.  e.,  advanced  telecommunications  capabilities  under  the  1996  Act,  126  thus  driving  consumer  demand  for 
 broadband  connections,  and  consequently  encouraging  more  broadband  investment  and  deployment  consistent  with  the  goals  of  section  706.  127  Indeed,  the  Commissions  most  recent  Fourth  Section  706 
 Report  to  Congress  recognizes  the  nexus  between  VoIP  services  and  accomplishing  the  goals  of  section  706.  128  Thus,  precluding  multiple  disparate  attempts  to  impose  economic  regulations  on  DigitalVoice  that 
 would  thwart  its  development  and  potentially  result  in  it  exiting  the  market  will  advance  the  goals  and  objectives  of  section  706. 

 37.  Allowing  Minnesotas  order  to  stand  would  invite  similar  imposition  of  50  or  more  additional  sets  of  different  economic  regulations  on  DigitalVoice,  which  could  severely  inhibit  the  development  of 
 this  and  similar  VoIP  services.  129  We  cannot,  and  will  not,  risk  eliminating  or  hampering  this  innovative  advanced  service  that  facilitates  additional  consumer  choice,  spurs  technological  development  and  growth 
 of  broadband  infrastructure,  and  promotes  continued  development  and  use  of  the  Internet.  To  do  so  would  ignore  the  Acts  express  mandates  and  directives  with  which  we  must  comply,  in  contravention  of 
 the  pro-  competitive  deregulatory  policies  the  Commission  is  striving  to  further. 
 B.  Commerce  Clause 
 38.  We  note  that  our  decision  today  is  fully  consistent  with  the  Commerce  Clause  of  the  United  States  Constitution.  The  Commerce  Clause  provides  that  [  t]  he  Congress  shall  have  Power    [t]  o 

 regulate  Commerce    among  the  several  States.  130  As  explained  by  the  Supreme  Court,  [  t]  hough 
 125  47  U.  S.  C.    157  nt.  Section  706  of  the  1996  Act  is  located  in  the  notes  of  section  7  of  the  Communication  Act. 
 To  implement  section  706s  mandate,  the  Commission  has  considered,  among  other  things,  whether  its  rules  promote  the  delivery  of  innovative  advanced  services  offerings.  See  Review  of  the  Section  251  Unbundling 

 Obligations  of  Incumbent  Local  Exchange  Carriers,  Implementation  of  the  Local  Competition  Provisions  of  the  Telecommunications  Act  of  1996,  Deployment  of  Wireline  Services  Offering  Advanced  Telecommunications 
 Capability,  CC  Docket  Nos.  01-  338,  96-  98,  98-  147,  Report  and  Order  and  Order  on  Remand  and  Further  Notice  of  Proposed  Rulemaking,  18  FCC  Rcd  16978  (2003)  (FNPRM),  corrected  by  Errata,  18  FCC  Rcd  19020  (2003),  affd 
 in  part,  remanded  in  part,  vacated  in  part,  United  States  Telecom  Assn  v.  FCC,  359  F.  3d  554  (D.  C.  Cir.  2004),  cert.  denied  sub  nom.  Natl  Assn  Regulatory.  Util.  Commrs  v.  United  States  Telecom  Assn,  73  USLW  3234  (U.  S. 
 Oct.  12,  2004)  (Nos.  04-  12,  04-  15,  04-  18).  We  find  that  our  actions  in  this  ruling  are  also  consistent  with  this  provision  of  the  Act. 
 126  See  47  U.  S.  C.    157  nt.  (c)(  1)  (defining  advanced  telecommunications  capability). 
 127  See  8x8  Comments  at  5;  VON  Coalition  Aug.  19  Ex  Parte  Letter,  Attach  at  7-  8. 
 128  See  Fourth  Section  706  Report  at  38  ([  S]  ubscribership  to  broadband  services  will  increase  in  the  future  as  new 
 applications  that  require  broadband  access,  such  as  VoIP,  are  introduced  into  the  marketplace,  and  consumers  become  more  aware  of  such  applications.)  (emphasis  added);  see  also  id.  at  3  (Statement  of  Chairman  Powell) 

 (  Disruptive  VoIP  services  are  acting  as  a  demand-  driver  for  broadband  connections,  lighting  the  industrys  fuse,  and  exciting  a  moribund  market.);  APT  Comments  at  2;  Motorola  Comments  at  12. 
 129  See  Pulver,  19  FCC  Rcd  at  3319-  20,  para.  19;  see  also  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  183 
 (  Haphazard  and  uncoordinated  state  regulation  [of  the  Internet]  can  only  frustrate  the  growth  of  cyberspace.).  130 
 U.  S.  Const.  art.  1,    8,  cl.  3. 
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 phrased  as  a  grant  of  regulatory  power  to  Congress,  the  Clause  has  long  been  understood  to  have  a  negative  aspect  that  denies  the  States  the  power  unjustifiably  to  discriminate  against  or  burden  the 
 interstate  flow  of  articles  of  commerce.  131  Under  the  Commerce  Clause  jurisprudence,  a  state  law  that  has  the  practical  effect  of  regulating  commerce  occurring  wholly  outside  that  [s]  tates  borders  is  a 
 violation  of  the  Commerce  Clause.  132  In  addition,  state  regulation  violates  the  Commerce  Clause  if  the  burdens  imposed  on  interstate  commerce  by  state  regulation  would  be  clearly  excessive  in  relation  to  the 
 putative  local  benefits.  133  Finally,  courts  have  held  that  state  regulation  of  those  aspects  of  commerce  that  by  their  unique  nature  demand  cohesive  national  treatment  is  offensive  to  the  Commerce  Clause.  134 

 39.  Minnesotas  regulation  likely  has  the  practical  effect  of  regulating  commerce  occurring  wholly  outside  that  [s]  tates  borders.  135  Because  the  location  of  Vonages  users  cannot  practically  be 
 determined,  136  Vonage  would  likely  be  required  to  comply  with  Minnesotas  regulation  for  all  use  of  DigitalVoice    including  communications  that  do  not  originate  or  terminate  in  Minnesota,  or  even  involve 
 facilities  or  equipment  in  Minnesota    in  order  to  ensure  that  it  could  fully  comply  with  the  regulations  for  services  in  Minnesota.  And,  as  we  have  explained  above,  this  would  likely  be  the  result  even  if 
 Vonage  elected  to  discontinue  seeking  subscribers  in  Minnesota,  given  that  end  users  could  use  the  service  from  any  broadband  connection  in  Minnesota.  137  While  states  can  and  should  serve  as  laboratories 
 for  different  regulatory  approaches,  we  have  here  a  very  different  situation  because  of  the  nature  of  the  service    our  federal  system  does  not  allow  the  strictest  regulatory  predilections  of  a  single  state  to  crowd 
 out  the  policies  of  all  others  for  a  service  that  unavoidably  reaches  all  of  them.  For  these  reasons, 

 131  Oregon  Waste  Sys.  v.  Dept  of  Envtl.  Quality,  511  U.  S.  93,  98  (1994)  (citations  omitted);  see  also  PSINet,  Inc.  v. 
 Chapman,  362  F.  3d  227,  239  (4th  Cir.  2004)  (quoting  General  Motors  Corp.  v.  Tracey,  519  U.  S.  278,  287  (1997));  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  173  (holding  that  the  Internet  is  an  instrument  of  interstate 

 commerce  under  the  Commerce  Clause).  132 
 Healy  v.  Beer  Institute,  491  U.  S.  324,  332  (1989);  see  also  Cotto  Waxo  Co.  v.  Williams,  46  F.  3d  790,  793  (8th  Cir.  1995)  (  Under  the  Commerce  Clause,  a  state  regulation  is  per  se  invalid  when  it  has  an  extraterritorial  reach,   

 that  is,  when  the  statute  has  the  practical  effect  of  controlling  conduct  beyond  the  boundaries  of  the  state.  The  Commerce  Clause  precludes  application  of  a  state  statute  to  commerce  that  takes  place  wholly  outside  of  the  states 
 borders.)  (emphasis  added)  (citation  omitted).  133 
 See  Pike  v.  Bruce  Church,  Inc.,  397  U.  S.  137,  142  (1970);  see  also  Cotto  Waxo  Co.  v.  Williams,  46  F.  3d  at  793  ([  I]  f  the  challenged  statute  regulates  evenhandedly,  then  it  burdens  interstate  commerce  indirectly  and  is  subject  to 

 a  balancing  test.  Under  the  balancing  test,  a  state  statute  violates  the  Commerce  Clause  only  if  the  burdens  it  imposes  on  interstate  commerce  are  clearly  excessive  in  relation  to  the  putative  local  benefits.  )  (citation  omitted). 
 134  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  169  (citing  Wabash,  St.  Louis  &  Pac.  Ry.  Co.  v.  Illinois,  118 
 U.  S.  557  (1886));  see  id.  at  181  (  The  courts  have  long  recognized  that  certain  types  of  commerce  demand  consistent  treatment  and  are  therefore  susceptible  to  regulation  only  on  a  national  level.);  American  Civil  Liberties 

 Union  v.  Johnson,  194  F.  3d  1149,  1162  (10th  Cir.  1999).  135 
 Healy  v.  Beer  Institute,  491  U.  S.  at  332;  see  also  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  173-  74,  177;  American  Booksellers  Found.  v.  Dean,  342  F.  3d  96,  103  (2d  Cir.  2003)  (acknowledging  that  because  of  the 

 Internets  boundary-  less  nature,  regulations  of  Internet  communications  may  not  be  wholly  outside  a  states  borders,  but  nonetheless  may  impose  extraterritorial  regulation  in  violation  of  the  Commerce  Clause). 
 136  See  supra  para.  5. 
 137  See  supra  para.  30. 
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 Minnesotas  regulation  would  likely  have  the  practical  effect  of  regulating  beyond  its  borders  and  therefore  would  likely  violate  the  Commerce  Clause.  138 
 40.  In  addition,  we  believe  the  burdens  imposed  on  interstate  commerce  by  the  Minnesota  Commissions  regulation  would  likely  be  clearly  excessive  in  relation  to  the  putative  local  benefits.  139 
 The  Minnesota  regulation  would  impose  significant  burdens  on  interstate  commerce.  140  As  discussed  above,  even  if  it  were  relevant  and  possible  to  track  the  geographic  location  of  packets  and  isolate  traffic 
 for  the  purpose  of  ascertaining  jurisdiction  over  a  theoretical  intrastate  component  of  an  otherwise  integrated  bit  stream,  such  efforts  would  be  impractical  and  costly.  141  At  the  same  time,  we  believe  that 
 the  local  benefits  of  state  economic  regulation  would  be  limited.  In  a  dynamic  market  such  as  the  market  for  Internet-  based  services,  we  believe  that  imposing  this  substantial  burden  on  Vonage  would  serve  no 
 useful  purpose  and  would  almost  certainly  be  significant  and  negative  for  the  development  of  new  and  innovative  interstate  Internet-  based  services. 

 41.  Finally,  DigitalVoice,  like  other  Internet  services,  is  likely  the  type  of  commerce  that  is  of  such  a  unique  nature  that  it  demand[  s]  cohesive  national  treatment  under  the  Commerce  Clause.  142  Because 
 DigitalVoice  is  not  constrained  by  geographic  boundaries  and  cannot  be  excluded  from  any  particular  state,  inconsistent  state  economic  regulation  could  cripple  development  of  DigitalVoice  and  services  like 
 it.  If  Vonages  DigitalVoice  service  were  subject  to  state  regulation,  it  would  have  to  satisfy  the  requirements  of  more  than  50  jurisdictions  with  more  than  50  different  sets  of  regulatory  obligations.  143 

 138  See  Vonage  Petition  at  29  (  Vonage  has  no  way  of  assuring  that  it  is  in  compliance  with  the  [Minnesota  Vonage 
 Order]  unless  it  blocks  a  substantial  amount  of  interstate  traffic  as  well.);  id.  at  31  ([  S]  ince  any  Vonage  customer  could,  in  theory,  travel  to  Minnesota  at  any  time  and  connect  their  MTA  computer  to  a  broadband  Internet 

 connection,  Vonage  could  never  prevent  all  intrastate  Minnesota  use  of  its  service  unless  it  blocked  all  interstate  calls  as  well.)  (emphasis  in  original);  id.  at  25,  27;  see  also  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at 
 171  ([  N]  o  aspect  of  the  Internet  can  feasibly  be  closed  off  to  users  from  another  state.).  139 
 See  Pike  v.  Bruce  Church,  Inc.,  397  U.  S.  at  142;  see  also  Cotto  Waxo  Co.  v.  Williams,  46  F.  3d  at  793.  See  generally  Michael  A.  Bamberger,  The  Clash  Between  the  Commerce  Clause  and  State  Regulation  of  the  Internet, 

 Internet  Newsletter,  Apr.  2002  (explaining  that  [  f]  or  the  most  part,  courts  have  analyzed  the  constitutionality  of  state  Internet  regulation  under  the  test  employed  by  the  Pike  court)  (emphasis  added). 
 140  Indeed,  one  federal  court  has  already  determined,  in  the  specific  context  of  Vonage,  that  state  entry  regulation  of 
 DigitalVoice  would  interfere  with  interstate  commerce.  See  New  York  Preliminary  Injunction  at  2;  see  also  American  Booksellers  Found.  v.  Dean,  342  F.  3d  at  104  (  We  think  it  likely  that  the  [I]  nternet  will  soon  be  seen  as 

 falling  within  the  class  of  subjects  that  are  protected  from  State  regulation  because  they  imperatively  demand  []  a  single  uniform  rule.  )  (citing  Cooley  v.  Bd.  of  Wardens,  53  U.  S.  299  (1851)). 
 141  See  supra  para.  29;  see  also  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  170  (  The  Internet  is  wholly 
 insensitive  to  geographic  distances.  .  .  .  Internet  protocols  were  designed  to  ignore  rather  than  document  geographic  location  .  .  .  .). 

 142  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  69  (citing  Wabash,  St.  Louis  &  Pac.  Ry.  Co.  v.  Illinois,  118 
 U.  S.  557);  see  also  American  Civil  Liberties  Union  v.  Johnson,  194  F.  3d  at  1162  (  As  we  observed,  .  .  .  certain  types  of  commerce  have  been  recognized  as  requiring  national  regulation.  .  .  .  The  Internet  is  surely  such  a 

 medium.).  143 
 See  also  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  169  (  The  menace  of  inconsistent  state  regulation  invites  analysis  under  the  Commerce  Clause  of  the  Constitution,  because  that  clause  represented  the  framers' 

 reaction  to  overreaching  by  the  individual  states  that  might  jeopardize  the  growth  of  the  nation  -  and  in  particular,  the  national  infrastructure  of  communications  and  trade  -  as  a  whole.)  (citing  Quill  Corp.  v.  North  Dakota,  504 
 U.  S.  298,  312  (1992)). 
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 As  discussed  above,  because  of  the  unbounded  characteristics  of  the  Internet,  Vonage  would  likely  be  required  in  practical  effect  to  subject  its  service  to  all  customers  across  the  country  to  the  regulations 
 imposed  by  Minnesota.  Moreover,  state  regulation  of  Internet-  based  services,  such  as  DigitalVoice,  would  make  them  unique  among  Internet  services  as  the  only  Internet  service  to  be  subject  to  such  state 
 obligations.  Indeed,  allowing  the  imposition  of  state  regulation  on  Vonage  would  likely  eliminate  any  benefit  of  using  the  Internet  to  provide  the  service.  The  Internet  enables  individuals  and  small  providers 
 to  reach  a  global  market  simply  by  attaching  a  server  to  the  Internet;  requiring  Vonage  to  submit  to  more  than  50  different  regulatory  regimes  as  soon  as  it  did  so  would  eliminate  this  fundamental  advantage  of 
 Internet-  based  communication.  Thus,  services,  such  as  DigitalVoice,  are  likely  of  a  unique  nature  that  demand[  s]  cohesive  national  treatment,  and  therefore,  inconsistent  state  regulations  would  likely  violate 
 the  Commerce  Clause.  144 
 C.  Public  Safety  Issues 
 42.  As  discussed  above,  we  preempt  the  Minnesota  Vonage  Order  because  it  imposes  entry  and  other  requirements  on  Vonage  that  impermissibly  interfere  with  this  Commissions  valid  exercise  of  authority. 

 As  Vonage  indicates  in  its  Petition,  Minnesota  includes  as  one  of  its  entry  conditions  the  approval  of  a  911  service  plan  comparable  to  the  provision  of  911  service  by  the  [incumbent]  local  exchange 
 carrier.  145  In  the  Minnesota  Vonage  Order,  the  Minnesota  Commission  specifically  subjected  Vonage  to  this  requirement.  146  Because  Minnesota  inextricably  links  pre-  approval  of  a  911  plan  to  becoming 
 certificated  to  offer  service  in  the  state,  the  application  of  its  911  requirements  operates  as  an  entry  regulation.  Vonage  explains  that  there  is  no  practicable  way  for  it  to  comply  with  this  requirement:  it 

 144  Federal  court  decisions  applying  the  Commerce  Clause  to  state  regulation  of  Internet  services  have  come  to 
 similar  conclusions.  In  American  Libraries  Assn  v.  Pataki,  a  leading  case  on  this  issue,  a  federal  district  court  struck  down  a  New  York  state  statute  making  it  a  crime  to  disseminate  indecent  material  to  minors  over  the  Internet. 

 The  court  held  that  the  New  York  law  violated  the  Commerce  Clause  because  it  (1)  overreached  by  seeking  to  regulate  conduct  occurring  outside  its  borders;  (2)  imposed  burdens  on  interstate  commerce  that  exceeded  any  local 
 benefit;  and  (3)  subjected  interstate  use  of  the  Internet  to  inconsistent  regulations.  See  American  Libraries  Assn  v.  Pataki,  969  F.  Supp.  at  183-  84.  In  several  subsequent  cases,  federal  courts  of  appeal  expressly  adopted  these 
 holdings.  See  PSINet,  Inc.  v.  Chapman,  362  F.  3d  227;  American  Booksellers  Found.  v.  Dean,  342  F.  3d  96;  American  Civil  Liberties  Union  v.  Johnson,  194  F.  3d  1149;  see  also  American  Libraries  Assn  v.  Pataki,  969  F. 
 Supp.  at  182  (  The  Internet  .  .  .  requires  a  cohesive  national  scheme  of  regulation  so  that  users  are  reasonably  able  to  determine  their  obligations.). 

 We  also  note  examples  from  other  network-  based  industries  where,  although  an  intrastate  component  may  exist,  state  authority  must  nonetheless  yield  to  exclusive  federal  jurisdiction  in  the  area  of  economic  or  other  state 
 regulations  affecting  interstate  commerce.  For  example,  in  the  case  of  railroads,  the  Supreme  Court  struck  down  a  state  regulation  regarding  the  length  of  trains,  holding  that  examination  of  all  the  relevant  factors  makes  it  plain 
 that  the  state  interest  is  outweighed  by  the  interest  of  the  nation  in  an  adequate,  economical  and  efficient  railway  transportation  service,  which  must  prevail.  Southern  Pac.  Co.  v.  Arizona,  325  U.  S.  761,  783-  84  (1945).  Similarly, 
 in  trucking  cases,  the  Supreme  Court  has  invalidated  state  laws  regulating  the  length  of  trucks  under  the  Commerce  Clause  when  the  regulation  imposes  a  burden  on  interstate  trucking  that  is  not  outweighed  by  the  local  interest.  See 
 Raymond  Motor  Transportation,  Inc.  v.  Rice,  434  U.  S.  429  (1978);  Kassel  v.  Consolidated  Freightways  Corp.,  450  U.  S.  662  (1981).  In  another  transportation  case,  the  Court  struck  down  an  Illinois  law  mandating  a  particular  type 
 of  mudguards  on  trucks  operating  in  the  state,  concluding  that  the  regulation  imposed  significant  burdens  on  interstate  trucking  with  no  countervailing  benefits.  See  Bibb  v.  Navajo  Freight  Lines,  Inc.,  359  U.  S.  520  (1959). 
 145  See  Vonage  Petition  at  25  (citing  Minn.  Rule    7812.0550  subp.  1). 
 146  See  Minnesota  Vonage  Order  at  8. 
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 cannot  today  identify  with  sufficient  accuracy  the  geographic  location  of  a  caller,  and  it  has  not  obtained  access  in  all  cases  to  incumbent  LEC  E911  trunks  that  carry  calls  to  specialized  operators  at  public  safety 
 answering  points  (PSAPs).  147  Under  the  Minnesota  telephone  company  rules,  therefore,  this  requirement  bars  Vonage  from  entry  in  Minnesota.  To  that  extent,  this  requirement  is  preempted  along 
 with  all  other  entry  requirements  contained  in  Minnesotas  telephone  company  regulations  as  applied  to  DigitalVoice.  148  Although  we  preempt  Minnesota  from  imposing  its  911  requirements  on  Vonage  as  a 
 condition  of  entry,  this  does  not  mean  that  Vonage  should  cease  the  efforts  it  has  undertaken  to  date  and  we  understand  is  continuing  to  take  both  to  develop  a  workable  public  safety  solution  for  its  DigitalVoice 
 service  and  to  offer  its  customers  equivalent  access  to  emergency  services. 
 43.  There  is  no  question  that  innovative  services  like  DigitalVoice  are  having  a  profound  and  beneficial  impact  on  American  consumers.  149  While  we  do  not  agree  with  unnecessary  economic 

 regulation  of  DigitalVoice  designed  for  different  services,  we  do  believe  that  important  social  policy  issues  surrounding  services  like  DigitalVoice  should  be  considered  and  resolved.  150  Access  to  emergency 
 services,  a  critically  important  public  safety  matter,  is  one  of  these  important  social  policy  issues.  In  this  proceeding,  Vonage  has  indicated  that  it  is  devoting  substantial  resources  toward  the  development  of 
 standards  and  technology  necessary  to  facilitate  some  type  of  911  service,  working  cooperatively  with  Minnesota  agencies  and  other  state  commissions,  public  safety  officials  and  PSAPs,  the  National 
 Emergency  Number  Association  (NENA),  and  the  Association  of  Public-  Safety  Communications  Officials  (APCO).  151  Moreover,  it  has  demonstrated  that  it  is  offering  its  version  of  911  capability  to  all 
 its  customers,  including  those  in  Minnesota,  and  has  provided  us  information  indicating  what  actions  its  customers  must  take  to  activate  this  911  capability.  152  We  are  also  aware  that  Vonage  recently  announced 
 the  successful  completion  of  an  E911  trial  in  Rhode  Island,  a  state  that  has  not,  to  our  knowledge,  attempted  to  regulate  DigitalVoice.  In  collaboration  with  the  State  of  Rhode  Island,  Vonage  has 
 developed  a  technical  solution  to  deliver  a  callers  location  and  call  back  number  to  emergency  service  personnel  for  911  calls  placed  in  that  state  by  DigitalVoice  users.  153  We  fully  expect  Vonage  to  continue 

 147  See  Vonage  Petition  at  8-  9,  24-  25. 
 148  See  supra  paras.  20-  22  (explaining  preemption  of  entry  requirements).  Indeed,  Vonage  notes  in  its  petition  that 
 [  I]  f  the  Commission  preempts  Minnesotas  certificate  requirement  .  .  .  this  issue  [911  comparability  to  an  incumbent  LEC]  will  be  moot.  See  Vonage  Petition  at  25.  Similarly,  to  the  extent  the  Minnesota  Commission 

 demands  payment  of  911  fees  as  a  condition  of  entry,  that  requirement  is  preempted.  149 
 See  VON  Coalition  Aug.  19  Ex  Parte  Letter  at  4.  150 
 As  explained  above,  these  issues  are  currently  being  considered  in  pending  proceedings  before  this  Commission.  See  supra  note  46.  See  also,  e.  g.,  Minnesota  Commission  Comments  at  4;  Surewest  Comments  at  12;  Texas  911 

 Agencies  Comments  at  2-  3  (urging  the  Commission  to  consider  public  safety  issues  related  to  VoIP  services).  151 
 See  NENA  Reply  at  1-  2;  Vonage  Aug.  13  Ex  Parte  Letter  at  1-  2;  Minnesota  Statewide  911  Program  Comments  at  4. 

 152  In  offering  its  911  capability  to  its  customers,  Vonage  has  provided  the  Commission  information  regarding  how 
 and  what  it  tells  its  customers  about  its  limited  911  capabilities  such  that  its  customers  are  fully  aware  of  those  limitations  when  they  subscribe  to  the  service  and  clearly  understand  that  it  is  not  a  comparable  emergency  service 

 to  the  911  capability  they  obtain  with  local  exchange  service.  We  fully  expect  Vonage  to  continue  providing  customers  information  such  as  this  about  its  911  capability.  See  Vonage  Oct.  1  Ex  Parte  Letter  at  3-  4  &  Exhibit 
 10.  153 
 See  Letter  from  William  B.  Wilhelm,  Jr.  and  Ronald  W.  Del  Sesto,  Jr.,  Counsel  for  Vonage,  to  Marlene  H.  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  03-  211,  04-  36,  at  1  (filed  Oct.  14,  2004). 
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 its  911  development  efforts  and  to  continue  to  offer  some  type  of  public  safety  capability  during  the  pendency  of  our  IP-  Enabled  Services  Proceeding.  154 
 44.  We  emphasize  that  while  we  have  decided  the  jurisdictional  question  for  Vonages  DigitalVoice  here,  we  have  yet  to  determine  final  rules  for  the  variety  of  issues  discussed  in  the  IP-  Enabled  Services 
 Proceeding.  While  we  intend  to  address  the  911  issue  as  soon  as  possible,  perhaps  even  separately,  we  anticipate  addressing  other  critical  issues  such  as  universal  service,  intercarrier  compensation,  section  251 
 rights  and  obligations,  155  numbering,  disability  access,  and  consumer  protection  in  that  proceeding.  156 
 45.  Furthermore,  we  acknowledge  that  a  U.  S.  District  Court  in  New  York  has  recently  ordered  Vonage  to  continue  to  provide  the  same  emergency  911  calling  services  currently  available  to  Vonage 

 customers  within  that  state  157  and  to  make  reasonable  good  faith  efforts  to  participate  on  a  voluntary  basis  in  workshops  pertaining  to  the  development  of  VoIP  911  calling  capabilities.  158  Because 
 DigitalVoice  is  a  national  service  for  which  Vonage  cannot  single  out  New  York  intrastate  calls  (any  more  than  it  can  Minnesota  intrastate  calls),  as  a  practical  matter,  the  District  Courts  order  reaches 
 DigitalVoice  wherever  it  is  used.  159  Thus,  we  need  not  be  concerned  that  as  a  result  of  our  action  today,  Vonage  will  cease  its  efforts  to  continue  developing  and  offering  a  public  safety  capability  in  Minnesota. 
 The  District  Court  order  ensures  that  these  efforts  must  continue  while  we  work  cooperatively  with  our  state  colleagues  and  industry  to  determine  how  best  to  address  911/  E911-  type  capabilities  for  IP-  enabled 
 services  in  a  comprehensive  manner  in  the  context  of  our  IP-  Enabled  Services  Proceeding.  160 

 154  We  look  beyond  Vonages  efforts  of  today,  however,  toward  work  that  remains  to  be  done  in  the  area  of  911  and 
 the  opportunities  that  this  new  technology  presents  for  public  safety.  To  that  end,  we  are  aware  of  the  six  principles  NENA  has  advanced:  (1)  establish  a  national  E911  VoIP  policy;  (2)  encourage  vendor  and  technology  neutral 

 solutions  and  innovation;  (3)  retain  consumer  service  quality  expectations;  (4)  support  dynamic,  flexible,  open  architecture  system  design  process  for  911;  (5)  develop  policies  for  911  compatible  with  the  commercial 
 environment  for  IP  communications;  and  (6)  promote  a  fully  funded  911  system.  See  National  Emergency  Number  Association,  E9-  1-  1,  Internet  Protocol  &  Emergency  Communications,  Press  Release  (Mar.  22,  2004).  We  applaud 
 NENAs  vision  in  establishing  these  principles  to  support  a  process  to  promote  a  fully  functional  9-  1-  1  system  that  responds  any  time,  anywhere  from  every  device.  See  id..  We  endorse  these  principles  because  they  provide  a 
 sound  blueprint  for  the  development  of  a  national  911  solution  for  VoIP  services  and  we  encourage  all  VoIP  providers  and  industry  participants  to  work  toward  their  realization. 
 155  We  note  that  nothing  in  this  Order  addressing  the  Commissions  jurisdictional  determination  of  or  regulatory 
 treatment  of  particular  retail  IP-  enabled  services  impacts  competitive  LEC  access  to  the  underlying  facilities  on  which  such  retail  services  ride.  See  Letter  from  Jason  D.  Oxman,  General  Counsel,  Association  for  Local 

 Telecommunications  Services,  to  Marlene  Dortch,  Secretary,  FCC,  WC  Docket  Nos.  04-  29,  04-  36  (filed  Nov.  2,  2004). 
 156  See  supra  note  46. 
 157  See  New  York  Preliminary  Injunction  at  3.  We  note  that  Vonages  emergency  911  calling  service  is  not  a 
 service  that  is  provided  pursuant  to  the  New  York  Commissions  rules  or  any  other  state  commissions  rules.  This  is  a  service  Vonage  has  voluntarily  undertaken  in  response  to  consumer  demand. 

 158  See  New  York  Preliminary  Injunction  at  4. 
 159  We  recognize  that  Vonages  911  capability  relies  on  the  cooperation  of  its  customers  in  accurately  registering  and 
 re-  registering  their  user  location  when  they  move  about  with  the  service.  160 
 See  IP-  Enabled  Services  Proceeding,  19  FCC  Rcd  at  4897-  901,  paras.  51-  57. 
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 IV.  CONCLUSION 
 46.  For  the  reasons  set  forth  above,  we  preempt  the  Minnesota  Vonage  Order.  As  a  result,  the  Minnesota  Commission  may  not  require  Vonage  to  comply  with  its  certification,  tariffing  or  other  related 

 requirements  as  conditions  to  offering  DigitalVoice  in  that  state.  Moreover,  for  services  having  the  same  capabilities  as  DigitalVoice,  the  regulations  of  other  states  must  likewise  yield  to  important  federal 
 objectives.  To  the  extent  other  entities,  such  as  cable  companies,  provide  VoIP  services,  we  would  preempt  state  regulation  to  an  extent  comparable  to  what  we  have  done  in  this  Order. 

 V.  ORDERING  CLAUSES 
 47.  Accordingly,  IT  IS  ORDERED,  pursuant  to  sections  1,  2,  3,  4(  i)  and  303(  r)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151-  53,  154(  i),  303(  r),  and  section  1.2  of  the 

 Commission's  rules,  47  C.  F.  R.    1.2,  that  Vonages  Petition  for  Declaratory  Ruling  IS  GRANTED  in  part  and  the  Minnesota  Vonage  Order  IS  PREEMPTED. 

 48.  IT  IS  HEREBY  FURTHER  ORDERED,  pursuant  to  section  1.103(  a)  of  the  Commissions  rules,  47  C.  F.  R.    1.103(  a),  that  this  Memorandum  Opinion  and  Order  SHALL  BE  EFFECTIVE  upon  release. 
 FEDERAL  COMMUNICATIONS  COMMISSION 

 Marlene  H.  Dortch  Secretary 
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 APPENDIX  LIST  OF  COMMENTERS 
 Comments  in  WC  Docket  No.  03-  211 
 Comments  Abbreviation  8x8,  Inc.  8x8 
 Alliance  for  Public  Technology  APT  Association  of  Public-  Safety  Communications 
 Officials  APCO  Beacon  Telecommunications  Advisors,  LLC  Beacon 
 BellSouth  Corporation  BellSouth  California  Public  Utilities  Commission  California  Commission 
 CenturyTel,  Inc.  CenturyTel  Cinergy  Communications  Company  Cinergy 
 Cisco  Systems,  Inc.  Cisco  Dr.  Robert  A.  Collinge  Collinge 
 Communications  Workers  of  America  CWA  DJE  Teleconsulting,  LLC  DJE  Teleconsulting 
 Frontier  and  Citizens  Telephone  Companies  Frontier/  Citizens  The  High  Tech  Broadband  Coalition  High  Tech  Broadband  Coalition 
 ICORE,  Inc.  ICORE  Independent  Telephone  and  Telecommunications 
 Alliance  ITTA  Iowa  Utilities  Board  Iowa  Commission 
 Level  3  Communications,  LLC  Level  3  MCI 
 CompTel  MCI/  CompTel  Metropolitan  911  Board  Metropolitan  911  Board 
 Minnesota  Attorney  Generals  Office  Minnesota  AG  Minnesota  Department  of  Commerce  Minnesota  Department  of  Commerce 
 Minnesota  Independent  Coalition  Minnesota  Independent  Coalition  Minnesota  Public  Utilities  Commission  Minnesota  Commission 
 Minnesota  Statewide  911  Program  Minnesota  Statewide  911  Program  Montana  Independent  Telecommunications 
 Systems  Montana  Independent  Telecommunications  Systems  Montana  Telecommunications  Association  MTA 
 Motorola,  Inc.  Motorola  National  Association  of  State  Utility  Consumer 
 Advocates  NASUCA  National  Exchange  Carrier  Association  NECA 
 National  Telecommunications  Cooperative  Association  NTCA 
 New  York  State  Department  of  Public  Service  New  York  Commission  Organization  for  the  Promotion  and  Advancement 
 of  Small  Telecommunications  Companies  OPASTCO  PAETEC  Communications,  Inc.  PAETEC 
 Public  Utilities  Commission  of  Ohio  Ohio  Commission  Qwest  Communications  International  Inc.  Qwest 
 Rural  Iowa  Independent  Telephone  Association  RIITA 
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 SBC  Communications  Inc.  SBC  Sprint  Corporation  Sprint 
 SureWest  Communications  SureWest  Telcom  Consulting  Associates,  Inc.  TCA 
 Texas  Commission  on  State  Emergency  Communications  and  Texas  Emergency 
 Communications  Districts 
 Texas  911  Agencies 

 Texas  Coalition  of  Cities  for  Utility  Issues  TCCFUI  Time  Warner  Telecom,  Inc.  Time  Warner  Telecom 
 USA  DataNet  USA  DataNet  U.  S.  Department  of  Justice 
 Federal  Bureau  of  Investigation  USDOJ/  FBI  United  States  Telecom  Association  USTA 
 The  Verizon  Telephone  Companies  Verizon  The  Voice  on  the  Net  Coalition  VON  Coalition 
 Warinner,  Gesinger  &  Associates,  LLC  WG&  A  Washington  Enhanced  911  Program  Washington  E911  Program 

 Replies  in  WC  Docket  No.  03-  211 
 Replies  Abbreviation  8x8,  Inc.  8x8 
 AT&  T  Corp.  AT&  T  BellSouth  Corporation  BellSouth 
 Earthlink,  Inc.  Earthlink  GVNW  Consulting,  Inc.  GVNW 
 Inclusive  Technologies  Inclusive  Technologies  Iowa  Utilities  Board  Iowa  Commission 
 MCI  CompTel  MCI/  CompTel 
 Michigan  Public  Service  Commission  Michigan  Commission  Minnesota  Public  Utilities  Commission  Minnesota  Commission 
 Montana  Telecommunications  Association  MTA  National  Association  of  Regulatory  Utility 
 Commissioners  NARUC  National  Association  of  State  Utility  Consumer 
 Advocates  NASUCA  National  Association  of  Telecommunications 
 Officers  and  Advisors  National  League  of  Cities 
 The  National  Association  of  Counties  The  Alliance  for  Community  Media 

 NATOA  et  al. 

 National  Emergency  Number  Association  NENA  Attorney  General  of  the  State  of  New  York  New  York  State  AG 
 Oregon  Telecommunications  Association  Washington  Independent  Telephone  OTA/  WIT 
 PacWest  Telecom,  Inc.  RCN  Corporation  PacWest/  RCN 
 Pennsylvania  Public  Utility  Commission  Pennsylvania  Commission  Sprint  Corporation  Sprint 
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 Telecommunications  for  the  Deaf,  Inc.  TDI  Texas  Coalition  of  Cities  for  Utility  Issues  TCCFUI 
 U.  S.  Department  of  Justice  Federal  Bureau  of  Investigation  USDOJ/  FBI 
 The  Verizon  Telephone  Companies  Verizon  Vonage  Holdings  Corp.  Vonage 
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 STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Vonage  Holdings  Corporation  Petition  for  Declaratory  Ruling  Concerning  an  Order  of  the  Minnesota  Public  Utilities  Commission,  Memorandum  Opinion  and  Order  in  WC  Docket  No.  03- 
 211. 
 Since  1870  home  telephone  service  has  been  essentially  the  same  two  phones  connected  by  a  wire.  This  landmark  order  recognizes  that  a  revolution  has  occurred.  Internet  voice  services  have 
 cracked  the  19  th  Century  mold,  to  the  great  benefit  of  consumers.  VoIP  services  certainly  enable  voice  communications  between  two  or  more  people,  just  as  the  traditional  telephone  network  does,  but  that  is 
 where  the  similarity  ends.  Internet  voice  is  an  internet  application  that  takes  its  place  alongside  email  and  instant  messaging  as  an  incredibly  versatile  tool  for  communicating  with  people  all  over  the  world.  As 
 such  it  has  truly  unique  characteristics. 
 Internet  Voice  is  More  Personal:  VOIP  services  allow  people  to  dynamically  structure  the  way  they  communicate  and  to  customize  and  personalize  messages  in  a  way  that  is  impossible  with  traditional 
 telephones.  Just  as  consumers  personalize  their  cell  phones  with  ring  tones,  pictures  and  applications,  the  same  is  possible  with  internet  voice.  Consumers  have  come  to  expect  technology  to  be  tailored  to  their 
 preferences  My  Amazon,  My  Tivo,  My  Ipod.  Internet  voice,  ushers  in  the  era  of  My  Telephone.  Adding  enhancements  to  voice  is  no  longer  a  highly  complex  and  expensive  modification  to 
 the  network    now  it  is  just  a  matter  of  adding  to  the  next  software  release. 
 Internet  Voice  is  Cheaper:  Consumers  always  want  to  pay  less  and  VOIP  promises  enormous  value.  Because  of  the  efficient  technology  and  underlying  economics  of  the  service,  Consumers  can 
 expect  flat  rate  prices,  for  unlimited  services  and  features.  Just  as  consumers  have  responded  strongly  to  buckets  of  minutes  at  low  fixed  prices  in  mobile  phone  service,  the  same  characteristics  will  bring  these 
 innovative  pricing  models  to  the  wired  phone  world.  The  proof  is  in  the  pudding,  VOIP  is  barely  a  few  years  old  as  a  retail  offering  and  providers  have  already  cut  prices  several  times  to  compete  for 
 consumers.  VoIP  providers  have  begun  offering  local  and  long-  distance  calling  plans  for  as  low  as  $14.99  and  $19.99  per  month.  Most  recently,  Vonage  and  AT&  T  slashed  the  monthly  prices  of  their 
 unlimited  local  and  long-  distance  calling  plans  by  $5  per  month.  If  we  let  competition  and  innovation  rage,  unencumbered  by  the  high  cost  of  regulation,  Consumers  can  expect  more  of  the  same  lower 
 prices,  more  choice,  and  more  innovative  offerings. 
 Internet  Voice  is  Global:  Todays  decision  lays  a  jurisdictional  foundation  for  what  consumers  already  know    that  the  Internet  is  global  in  scope.  The  genius  of  the  Internet  is  that  it  knows  no 
 boundaries.  In  cyberspace,  distance  is  dead.  Communication  and  information  can  race  around  the  planet  and  back  with  ease.  The  Order  recognizes  that  several  technical  factors  demonstrate  that  VoIP  services 
 are  unquestionably  interstate  in  nature.  VoIP  services  are  nomadic  and  presence-  oriented,  making  identification  of  the  end  points  of  any  given  communications  session  completely  impractical  and,  frankly, 
 unwise.  In  this  sense,  Internet  applications  such  as  VoIP  are  more  border  busting  than  either  long  distance  or  mobile  telephony  each  inherently,  and  properly  classified,  interstate  services. 

 To  subject  a  global  network  to  disparate  local  regulatory  treatment  by  51  different  jurisdictions  would  be  to  destroy  the  very  qualities  that  embody  the  technological  marvel  that  is  the  Internet.  The 
 founding  fathers  understood  the  danger  of  crushing  interstate  commerce  and  enshrined  the  principle  of  federal  jurisdiction  over  interstate  services  in  the  commerce  clause  of  the  U.  S.  Constitution.  In  the  same 
 vein,  Congress  rightly  recognized  the  borderless  nature  of  mobile  telephone  service  and  classified  it  an  interstate  communication.  VOIP  properly  stands  in  this  category  and  the  Commission  is  merely  affirming 
 the  obvious  in  reaching  todays  jurisdictional  decision. 
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 This  is  not  to  say  that  there  is  no  governmental  interest  in  VOIP.  There  will  remain  very  important  questions  about  emergency  services,  consumer  protections  from  waste,  fraud  and  abuse  and 
 recovering  the  fair  costs  of  the  network.  It  is  not  true  that  states  are  or  should  be  complete  bystanders  with  regard  to  these  issues.  Indeed,  there  is  a  long  tradition  of  federal/  state  partnership  in  addressing  such 
 issues,  even  with  regard  to  interstate  services.  For  example,  in  long  distance  services,  the  FCC  and  state  commissions  have  structured  a  true  partnership  to  combat  slamming  and  cramming.  We  have  also 
 worked  closely  with  the  states  to  strike  a  balance  in  the  area  of  do-  not-  call  enforcement.  In  the  mobile  services  area,  the  FCC  has  worked  closely  with  states  on  E911  implementation.  With  regard  to  critical 
 911  capability  for  VOIP,  I  note  already  that  several  Internet  voice  providers  have  entered  into  an  agreement  with  the  National  Emergency  Number  Association  to  extend  911  capabilities  to  Internet  voice 
 services  to  promote  a  fully  functional  9-  1-  1  system  that  responds  any  time,  anywhere  from  every  device.  Efforts  such  as  these  are  essential  to  educating  policy  makers  and  providing  a  basis  for 
 solutions  to  complex  technical  problems.  These  can  and  will  serve  as  models  for  VOIP. 
 While  todays  item  preempts  an  order  of  the  Minnesota  Commission  applying  its  traditional  telephone  company  regulations  to  Vonages  DigitalVoice  service,  it  is  important  that  I  emphasize  that 
 the  Commission  expresses  no  opinion  here  on  the  applicability  to  Vonage  of  states  general  laws  governing  entities  conducting  business  within  the  state,  such  as  laws  concerning  taxation;  fraud;  general 
 commercial  dealings;  marketing  and  advertising.  Just  as  this  ruling  does  not  alter  traditional  state  powers,  we  do  not  alter  facilities-  based  competitor  rights,  or  state  authority  pursuant  to  section  252  of  the  Act.  It 
 is  my  hope  that  the  Commissions  decision  today  will  focus  the  debate  and  permit  our  colleagues  in  the  industry  and  at  the  state  commissions  to  direct  their  resources  toward  helping  the  Commission  answer  the 
 important  questions  that  remain  after  todays  Order. 
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 CONCURRING  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 Re:  Vonage  Holdings  Corporation  Petition  for  Declaratory  Ruling  Concerning  an  Order  of  the  Minnesota  Public  Utilities  Commission,  Memorandum  Opinion  and 
 Order  (WC  Docket  No.  03-  211) 
 We  all  marvel  at  the  tremendous  and  transformative  potential  of  IP  services.  They  have  the  power  significantly  to  remake  the  telecommunications  landscape  by  flooding  the  market  with  innovative 
 new  services  and  providers.  But  to  unleash  the  full  potential  of  this  new  technology  and  to  ensure  that  these  services  succeed,  we  need  rules  of  the  road  clear,  predictable  and  confidence-  building. 

 Todays  decision  finds  that  VoIP  services  like  Vonages  DigitalVoice  have  an  undeniably  interstate  character.  Thats  fine  as  far  as  it  goes  but  it  doesnt  go  very  far.  Proclaiming  the  service 
 interstate  does  not  mean  that  everything  magically  falls  into  place,  the  curtains  are  raised,  the  technology  is  liberated,  and  all  questions  are  answered.  There  are,  in  fact,  difficult  and  urgent  questions 
 flowing  from  our  jurisdictional  conclusion  and  they  are  no  closer  to  an  answer  after  we  act  today  than  they  were  before  we  walked  in  here.  So  rather  than  sailing  boldly  into  a  revolutionary  new  Voice  Over 
 communications  era,  we  are,  I  think,  still  lying  at  anchor.  By  not  supplying  answers,  we  are  clouding  the  future  of  new  technology  that  has  the  power  to  carry  us  over  the  horizon. 

 So  I  can  only  concur  in  todays  decision.  While  I  agree  that  traditional  jurisdictional  boundaries  are  eroding  in  our  new  Internet-  centric  world,  we  need  a  clear  and  comprehensive  framework  for 
 addressing  this  new  reality.  Instead  the  Commission  moves  bit-  by-  bit  through  individual  company  petitions,  in  effect  checking  off  business  plans  as  they  walk  through  the  door.  This  is  not  the  way  we 
 should  be  proceeding.  We  need  a  framework  for  all  carriers  and  all  services,  not  a  stream  of  incremental  decisions  based  on  the  needs  of  individual  companies.  We  need  a  framework  to  explain  the  consequences 
 for  homeland  security,  public  safety  and  911.  We  need  a  framework  for  consumer  protection.  We  need  a  framework  to  address  intercarrier  compensation,  state  and  federal  universal  service,  and  the  impact  on 
 rural  America.  But  all  I  see  coming  out  of  this  particular  decision  is  .  .  .  more  questions. 
 The  Commissions  constricted  approach  denies  consumers,  carriers,  investors  and  state  and  local  officials  the  clarity  they  deserve.  These  are  not  just  my  musings.  A  growing  chorus  of  voices  is  urging 
 the  Commission  to  stop  its  cherry-  picking  approach  to  VoIP  issues.  When  the  National  Governors  Association,  the  Association  of  Public  Safety  Communications  Officials,  the  National  Association  of 
 Counties,  the  National  League  of  Cities,  the  United  States  Conference  of  Mayors,  the  Communications  Workers  of  America,  AARP,  the  Independent  Telephone  and  Telecommunications  Alliance,  the  National 
 Telecommunications  Cooperative  Association,  the  Organization  for  the  Promotion  and  Advancement  of  Small  Telecommunications  Companies,  the  Western  Telecommunications  Alliance,  the  National 
 Association  of  Regulatory  Utility  Commissioners,  the  National  Association  of  Telecommunications  Officers  and  Advisors,  the  National  Consumers  League  and  local  directors  of  911  service  in  cities  and 
 counties  around  the  country  all  suggest  that  moving  ahead  in  piecemeal  fashion  is  irresponsible,  I  think  we  should  take  heed. 

 I  want  to  point  to  language  in  this  item  albeit  its  in  a  footnote  that  warns  people  not  to  draw  unwarranted  conclusions  from  the  narrow  jurisdictional  finding  that  we  make.  What  we  do  today  should 
 not  be  interpreted  as  anything  more  than  it  is.  Yes,  Vonages  DigitalVoice  service  has  an  interstate  character.  But  what  exactly  that  entails  we  do  not  say.  All  that  important  work  lies  ahead.  Wouldnt  it 
 be  sad  if  we  were  to  let  it  go  at  this,  pretending  we  have  done  something  truly  responsive  to  the  questions  that  need  to  be  answered,  and  then  not  proceed  to  tackle  the  related  issues  quickly  and  comprehensively? 
 And  wouldnt  it  be  tragic  if  the  blunt  instrument  of  preemption  was  permitted  to  erode  our  partnership 
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 with  the  states?  We  have  worked  long  and  hard  to  nourish  a  common  federal-  state  commitment  to  a  pro-competitive  telecommunications  environment.  This  is  no  time  to  abandon  that  commitment. 
 Sometimes  I  wonder  what  the  strategy  is  in  this  Commissions  approach  to  VoIP.  Some  warn  that  it  may  be  a  camels  nose  under  the  tent  strategy,  proceeding  inch-  by-  inch  to  far-  reaching  conclusions 
 that  a  more  straight-  forward  approach  could  not  sustain.  I  hope  that  is  not  the  case  and  this  decision  should  not  be  so  interpreted.  What  I  hope  this  decision  does  is  to  force  us  finally  to  face  up  to  the  larger 
 issues.  We  are,  after  all,  face-  to-  face  here  with  issues  that  go  to  the  very  core  of  our  statutory  responsibilities.  These  issues  cant  be  ducked  and  they  cant  be  dodged  if  we  are  truly  serious  about  these 
 technologies  realizing  their  full  transformative  potentials.  So  Ill  withhold  my  approval  for  that  happy  day  when  we  step  up  to  the  plate  and  begin  answering  the  hard  questions  about  what  these  technologies 
 and  services  are  and  how  they  fit  into  Americas  communications  landscape. 
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 CONCURRING  STATEMENT  OF  JONATHAN  S.  ADELSTEIN 
 Re:  Vonage  Holdings  Corporation  Petition  for  Declaratory  Ruling  Concerning  an  Order  of  the  Minnesota  Public  Utilities  Commission,  WC  Docket  No.  03-  211,  FCC  04-  267  (2004). 
 While  this  Order  rightly  acknowledges  the  importance  and  unique  qualities  of  Internet-  based  services,  including  Voice  over  Internet  Protocol  (VoIP)  services,  I  am  concerned  that  the  Commission 
 overlooks  important  public  policy  issues  that  will  impact  consumers  across  our  country,  and  particularly  in  Rural  America. 

 I  concur  to  this  item  because  it  appropriately  recognizes  the  unique  nature  of  many  IP-  enabled  services  and  the  importance  of  reducing  barriers  to  entry  for  Internet-  based  services.  Indeed,  I  share  my 
 colleagues  enthusiasm  for  the  promise  of  Internet  Protocol  (IP)-  enabled  services.  All  indications  are  that  IP  is  becoming  the  building  block  for  the  future  of  telecommunications  and  its  use  is  integral  to  the 
 explosion  of  choices  for  consumers.  It  is  becoming  increasingly  apparent  that  IP-  based  services  will  play  an  important  role  in  our  global  economic  competitiveness,  by  enabling  economic  productivity,  providing 
 a  platform  for  innovation,  and  driving  demand  for  broadband  facilities.  Whether  through  PDA  phones,  voice  through  Instant  Messaging,  or  countless  other  innovative  services,  this  technology  is  giving 
 customers  far  greater  control  over,  and  flexibility  in  the  use  of,  their  communications  services.  With  that  control,  consumers  can  convert  messages  with  ease  from  voice-  to-  text  and  back,  and  can  take  their  IP-services 
 wherever  they  go.  Though  I  am  not  comfortable  with  all  of  the  analysis  in  this  item,  the  Order  reasonably  reflects  the  unique  qualities  of  Vonages  service  and  recognizes  the  challenges  that  this  service 
 poses  for  the  Commissions  traditional  jurisdictional  analysis. 
 Where  this  Order  falls  short  is  its  failure  to  account  in  a  meaningful  way  for  essential  policy  issues,  including  universal  service,  public  safety,  law  enforcement,  consumer  privacy,  disabilities  access, 
 and  intercarrier  compensation,  and  the  effect  of  our  preemption  here.  In  February  of  this  year,  we  opened  a  VoIP-  specific  rulemaking  proceeding  to  address  not  only  the  issue  raised  here,  the  jurisdiction  of  IP-based 
 services,  but  to  address  the  broader  implications  of  VoIP  services  in  a  comprehensive  and  coordinated  fashion.  At  that  time,  we  acknowledged  the  social  importance  of  these  Congressionally-mandated 
 policy  objectives  and  the  need  to  assess  the  potentially  disparate  impact  of  our  decisions  on  particular  communities.  I  am  concerned  that  this  Order  may  have  dramatic  implications  for  these 
 Congressional  objectives,  yet  we  afford  them  no  meaningful  or  comprehensive  consideration  here.  I  am  also  concerned  that  our  inability  to  specify  the  exact  parameters  of  the  services  at  issue  and  the  breadth  of 
 our  preemption  will  have  unintended  effects,  including  effects  on  incentives  for  investment  in  these  technologies,  that  could  have  been  avoided  with  a  more  comprehensive  approach.  I  highlight,  below,  two 
 of  the  most  pressing  concerns    universal  service  and  public  safety. 
 The  Act  charges  this  Commission  with  maintaining  universal  service,  which  is  crucial  in  delivering  communications  services  to  our  nations  schools,  libraries,  low  income  consumers,  and  rural 
 communities.  Universal  service  has  been  the  cornerstone  of  telecommunications  policy  for  over  70  years  and  has  enabled  this  country  to  enjoy  unparalleled  levels  of  access  to  essential  communications  services. 
 That  access  has  improved  our  economic  productivity  and  our  public  safety  in  immeasurable  ways  and  has  been  vital  in  fostering  economic  development  in  rural  and  underserved  areas.  The  Act  also  expressly 
 permits  States  to  adopt  consistent  approaches  to  preserve  and  advance  universal  service.  At  least  24  States  have  answered  that  call,  disbursing  over  $1.9  billion  annually  from  their  own  universal  service 
 programs.  Many  of  those  States  and  other  commenters  express  legitimate  concern  that  our  decision  here  could  increase  pressure  on  the  federal  universal  service  mechanisms  and  could  potentially  lead  to  rate 
 increases  for  rural  and  low  income  consumers.  With  those  reasons  in  mind,  Ive  called  for  the  Commission  to  quickly  convene  a  universal  service  solutions  summit  modeled  after  the  ones  weve  held 
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 for  other  public  policy  issues.  Regrettably,  this  item  does  not  acknowledge  its  potential  impact  on  those  programs,  nor  does  it  propose  any  solutions,  or  even  make  firm  commitments  to  resolving  these  issues. 
 We  are  left  to  hope  that  these  unaddressed  issues  do  not  gridlock  or  curtail  the  full  reach  of  the  promised  IP  superhighway. 

 I  also  have  reservations  about  our  preemption  of  a  States  efforts  to  ensure  the  public  safety  of  its  citizens,  based  here  on  the  linkage  of  the  911  requirement  with  a  State  certification.  Our  approach  of 
 overriding  States  public  safety  efforts  without  clear  federal  direction  takes  us  into  a  dangerous  territory  in  which  consumers  may  come  to  rely  on  services  without  the  benefit  of  the  critical  safety  net  that  they 
 have  come  to  expect. 
 Ultimately,  I  cannot  fully  endorse  an  approach  that  leaves  unanswered  so  many  important  questions  about  the  future  of  communications  services  for  so  many  Americans.  Rural  and  low-  income 
 Americans,  the  countless  governmental  and  public  interest  groups  who  have  expressed  concern  about  our  piecemeal  approach,  and  the  communications  industry,  itself,  all  deserve  more  from  this  Commission.  If 
 this  Commission  is  to  ensure  that  innovative  services  are  widely  available  and  also  achieve  the  important  public  policy  goals  that  Congress  has  articulated,  the  Commission  must  begin  to  wrestle  in  earnest  with 
 difficult  issues  that  are  largely  ignored  this  Order.  We  simply  cannot  afford  to  slow  roll  these  issues. 
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