State Regulatory Approaches to VoIP: Policy, Implementation, and Outcome

I. APPROACHING VOIP A. The Genesis of Approaches B. The Functional Approach 1. Legal Approach (Application of State Law) 2. The States a. Non Cases-in-Controversy i. Florida ii. NARUC iii. The Full Policy Circle: Missouri & California a. Missouri b. California c. The Full Circle b. Cases-in-Controversy i. Minnesota ii. Dial-Around Cases 3. The Functional Approach Observations a. Legal Precedent b. Function versus Under-the-Hood c. Circular Justification C. The Technical Approach 1. Florida D. The Layered Model of Regulation 1. Colorado 2. Guam 3. Layered Model Observations E. Market Principles 1. Colorado 2. Pennsylvania F. Hybrid Approaches 1. New York: Vonage II. OBSERVATIONS A. The Muddled Process: Goals First B. Approaches Are Articles Frameworks C. Market versus Social Concerns D. On-Off Switches E. Talking Past Each Other III. CONCLUSION I. APPROACHING VOIP The proposition is simple. Things that appear the same should be regulated the same. This would seem fair; the syllogism is sound. Phone services provide two-way, real-time voice communications. Phone services are regulated. Therefore things that provide two-way, real-time voice communications should be regulated. But modernists teach us that how a thing is perceived depends upon perspective. There may be many perspectives of a horse. If I am an equestrian, I might view the horse one way. If I am a hungry mountain lion, I might have a different view. If, however, I am a hockey player, I might have no regard for the horse at all. Which is the correct perspective? There are many perspectives on Voice over Internet Protocol ("VoIP") service. The Functional Approach concludes that the appropriate perspective is from a functional standpoint. If a device performs the same technical function as a telephone, then it should receive the same regulatory treatment as a telephone. But why? Is the technology the reason that the regulations exist? Is there some Platonic nature of telephones such that filing tariffs is simply a part of the form of being a phone? (1) If policy objectives concern markets, perhaps markets is the appropriate standpoint. If the policy objectives concern public safety or threats to revenue, perhaps those are the appropriate standpoints. But this Article disappoints. Pablo Picasso offered multiple perspectives of a horse, refusing to give us a desired definitive viewpoint. The notion of this Article is not to resolve the definitive approach to VoIP. Rather, this Article suggests that the process of the approach has itself become muddled. Individuals quibble, contrasting the superiority of one perspective over another, negating the reason why they were looking in the first place. To successfully view the horse, first, we must know why we are looking at the horse. Then we must decide how to look at the horse; we must define what "it" is that we are looking at. Finally, we need to consider whether what we looked at is consistent with why we were looking. If a dentist seeks to care for the horse's teeth, looking at a horse's rear end probably means the approach is a bit askew. Policy likewise involves process dynamic. The first question is (A) "why": what are the objectives, goals, and concerns--the policy's first principles. The next question is (B) "how". With what approach will the policy be implemented; what is (and is not) the target of the policy. Finally, (C) does the outcome comport with the policy goals. [ILLUSTRATION OMITTED] The notion of this Article is that we have confused VoIP (B) implementation/approaches with (A) policy objectives. …