FCC Regulatory Fee Proposal May Resolve Long Pending VoIP Petition Too

According to the FCC’s weekly list of pending items on circulation, the Commission appears ready to resolve a longstanding petition by an interconnected VoIP provider to cancel its 2007 FCC regulatory fee. The ruling could have impact on future regulatory fee assessments, but the specific relief relating to 2007 (if the petitioner is successful) is likely to be limited to the petitioner.

See below for more on the pending action.

Every week, the FCC releases a list of items that are under consideration by the full Commission. (In FCC parlance, these are items that are ​“on circulation” before the Commissioners). The current list reports that the Commission is examining an NPRM to assess the FY 2011 FCC Regulatory Fee. In addition, the list includes an action on Vonage’s June 2008 challenge to the imposition of FCC regulatory fees on it. As you will recall, in 2006, the FCC ruled that interconnected VoIP providers must contribute to the Universal Service Fund. Over time, the FCC applied a variety of other rules to interconnected VoIP providers on a case-by-case basis. One such rule was the obligation to pay FCC Regulatory Fees, which the Commission first applied in the 2007 Regulatory Fee order. (For background on the Regulatory Fee, see this post on the Telecom Law Monitor.

However, Vonage Holdings Corporation, an interconnected VoIP provider, challenged the FCC’s regulatory fee invoice for FY 2007. In its Application for Review, Vonage principally contends that the 2007 fee is unlawful because the FCC order did not take effect until November 15, 2007, after the end of fiscal year 2007 (which ended on September 30, 2007). Vonage argues that the FCC can only assess regulatory fees ​“during” the fiscal year for which they are authorized, and that the fee here was not collected during FY 2007. Vonage’s request has been pending for several years, with little apparent activity. (In fact, the last ex parte filed by Vonage was in October 2009.)

Even if Vonage is successful, it is unlikely that the FCC will extend the relief to other interconnected VoIP providers. To our knowledge, other interconnected VoIP providers have not challenged their FY 2007 invoices. Other providers would have a difficult time presenting such a claim at this late date.