Justices Call for Test Case on VOIP Regulation Void

WASHINGTON (CN) – The Supreme Court declined Monday to hear a case over Voice Over Internet Protocol regulations, but two justices called for another case to test whether states can step in the absence of federal law.

Commonly known by its abbreviation, VOIP has become more common in recent years, with examples of the technology like Skype and WhatsApp becoming popular alternatives to traditional phone service. 

The Federal Communications Commission has missed repeated opportunities to classify the service, however, spurring some states to adopt their own rules.

In 2015, the Minnesota Public Utilities Commission drew a challenge from Charter Advanced Services for having done just that.

The Eighth Circuit invalidated Minnesota’s regulation last year, however, after ruling that the technology qualifies as an internet service for regulatory purposes.

Because the FCC has a policy against regulating information services, the court found that Minnesota’s regulation was pre-empted by federal policy.

This in turn prompted the Minnesota Public Utilities Commission to petition the Supreme Court for a writ of certiorari, asking whether the FCC’s decision not to regulate a service can lock out states from stepping in and handing down regulations of their own. It also asked the court to decide whether VOIP service qualifies as a telecommunications or an information service for regulatory purposes.

The court declined to hear the case Monday without explanation, as is its custom. In a 3-page concurring opinion joined by Justice Neil Gorsuch, however, Justice Clarence Thomas noted that he welcomed another case that would provide the court with an opportunity to say whether the federal government’s decision not to regulate an industry preempts state regulation of that industry.

Thomas appeared skeptical the answer to that question would be yes, calling it a reordering of the constitutional system.

“Giving pre-emptive effect to a federal agency policy of nonregulation thus expands the power of both the executive and the judiciary,” Thomas wrote.

Minnesota Solicitor General Liz Kramer said Thomas’ opinion offers a “glimmer of home” to states that are still hopeful they will have a say in the regulation of VOIP technology.

“This is a big issue in terms of how states or the federal government are going to regulate this aspect of our lives,” Kramer said in an interview.

A spokeswoman for Charter Advanced Services declined to comment on the court’s decision. The company is represented by Ian Gershengorn with Jenner & Block.

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