Whether VoIP service is a telecommunications service or an information service under the appropriate functional test from Brand X

QUESTIONS PRESENTED The Communications Act distinguishes between “telecommunications services” and “information services.” Telecommunications services are subject to common carrier regulation by the Federal Communications Commission (FCC), while the FCC has a policy against regulation of information services. The FCC has repeatedly declined to classify Voice over Internet Protocol (VoIP) service as either a telecommunications or an information service. Although VoIP service is a relatively new technology, it already has over 60 million subscribers in this country and is rapidly replacing traditional telephone service. In this case, the Eighth Circuit became the first circuit court to reach the VoIP classification issue. Over a strong dissent, the panel majority classified VoIP service as an information service. The majority concluded that the FCC’s policy against regulating information services conflicts with and preempts state regulation of VoIP service, despite the fact that the FCC has never applied this policy to VoIP. The questions presented are: 1. Whether, in the absence of an FCC decision classifying VoIP service as an information service, FCC policy can conflict with and preempt state regulation of VoIP service. 2. Whether VoIP service is a telecommunications service or an information service, under the appropriate functional test for classification determinations from Brand X.