The U.S. Court of Appeals today gave "over-the-top" VOIP providers and the FCC a major victory. It issued an order upholding the FCC's 2004 decision that states are pre-empted from regulating so-called "nomadic" VOIP services such as Skype and Vonage. The FCC held in the same 2004 Vonage order, however, that such services are subject to federal regulation and the court's decision does not change that holding. The court did not decide whether VOIP services were telecommunications or information services under the Communications Act. (If they are telecommunications services, the FCC has much broader jurisdiction to regulate them.)
The court also dismissed as premature a challenge by the NY PUC to another part of the FCC's order, where the FCC indicated that it would apply the same analysis to fixed VOIP providers such as the cable companies. The court decided that the FCC's language was not an actual holding, but merely a statement of intention. You can expect that one of the cable MSO's will shortly file a petition with the FCC to obtain a declaratory ruling that cable VOIP is also exempt from state regulation. Years of appeals will no doubt follow.
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