The California Public Utilities Commission (CPUC) has issued a proposed decision that could significantly reshape the regulatory landscape for Voice over Internet Protocol (VoIP) providers operating in California. This decision would impose new regulatory obligations on providers of fixed and limited facilities-based VoIP services, requiring compliance with stringent rules typically applied to traditional telephone corporations (such as CLECs and IXCs). If the CPUC approves this decision, California will become the first state to require VoIP providers to obtain regulatory approval for corporate transactions such as mergers and transfers of control, a step not even required at the federal level by the Federal Communications Commission (FCC) for non-facilities-based VoIP providers.

This advisory provides a comprehensive overview of the CPUC’s proposed decision, the key changes to VoIP regulation in California, and the opportunities for stakeholders to provide input before the final ruling. While we are still in the early stages of analyzing the proposed decision and its implications, it is already clear that the decision leaves significant room for factual interpretation. If adopted without changes or further clarification by the CPUC, the decision will impose distinct regulatory treatment on all VoIP providers, with the narrow and limited exception of those whose services qualify as pure-play nomadic VoIP (Digital VoIP Nomadic). Given the magnitude of these changes, it will be critically important for service providers—along with their owners, investors, and the broader investment community—to fully understand both the definition and the regulatory requirements that will apply to them. This includes not only registration and licensing obligations, but also the broader set of regulatory requirements that stem from the classification determination made during registration and licensing. Companies will need to carefully plan for the future, particularly as these regulations could have far-reaching impacts on their business models and future transactions. Additionally, we explore how this decision could create ripple effects across the country and offer strategic guidance on how companies can prepare.

Key Aspects of the Proposed CPUC Decision

1. Redefinition of VoIP Services

The CPUC’s proposed decision distinguishes between Digital Voice Fixed (DVF) and Digital Voice Nomadic (DVN) services, with different regulatory obligations for each category:

1. • Digital Voice Fixed (DVF): VoIP providers that can distinguish between intrastate and interstate calls will be classified as DVF. These services will be regulated in the same way as traditional telephone corporations, subject to the full scope of CPUC oversight.

1. • Digital Voice Nomadic (DVN): VoIP providers that cannot track whether calls are intrastate or interstate will be classified as DVN. While these providers escape some regulatory burdens, such as merger and acquisition approvals, they must still post a surety bond and meet certain operational compliance requirements.

Fixed VoIP providers, including those offering a combination of fixed and nomadic VoIP services (such as softphones or mobile apps), will face substantial regulatory oversight, including the requirement to seek CPUC approval for major corporate transactions.

2. Implications for Fixed and Limited Facilities-Based VoIP Providers
3. • Mandatory Registration: Providers offering fixed or limited facilities-based VoIP services that can differentiate between intrastate and interstate calls must go through the Section 1013 Registration process, similar to traditional telecom providers.

2. • Notice and Approval for Mergers and Transfers of Control: Fixed and limited facilities-based VoIP providers may need to provide notice and obtain CPUC approval for mergers, acquisitions, and transfers of control. This is a significant regulatory development as California will be the first state to enforce such rules, whereas the FCC does not impose these requirements on non-facilities-based VoIP providers.

2. • Limited Facilities-Based VoIP Providers: These providers, which may offer both fixed and nomadic services, will face the same regulatory scrutiny as fixed VoIP providers, meaning that certain corporate transactions, including mergers or asset sales, may require notice and/or CPUC prior approval.

3. Exposure to CPUC’s Consumer Protection and Enforcement Division (CPED) Protest

Under the proposed new registration and licensing rules for Digital Voice Fixed (DVF) and limited facilities-based DVF service providers, applicants will be required to submit a Section 1103 registration filing with the California Public Utilities Commission (CPUC). This filing exposes applicants to potential scrutiny by the CPUC’s Consumer Protection and Enforcement Division (CPED). If the CPED identifies any omissions, errors, or false information in the registration—whether intentional or not—it can file a protest against the application. Such a protest would act as a significant market entry barrier, as it would trigger a contested proceeding before the CPUC that must be resolved before the applicant is allowed to operate. These proceedings are typically resolved through a consent decree, where the applicant agrees to pay fines. The fines can range from a few thousand dollars to tens of thousands, depending on the severity and nature of the issues identified by the CPED. Therefore, applicants must ensure that their filings are thorough and accurate to avoid costly delays and penalties.

4. Regulatory Fees and Surety Bond Requirements
5. • Both DVF and DVN providers will be required to post surety bonds as part of their compliance obligations (likely in the amount of $25,000). This bond guarantees financial responsibility for regulatory penalties or service commitments.

4. • Fixed and limited facilities-based VoIP providers will also be required to pay ongoing regulatory fees to the CPUC and may be subject to service quality and reporting requirements similar to those imposed on traditional telephone corporations.

5. Service Quality and Reporting Obligations

As telephone corporations, fixed and limited facilities-based VoIP providers may be subject to CPUC service quality standards. These standards could include reporting service outages, filing annual compliance reports, and responding to customer complaints, which would add a significant layer of regulatory compliance.

Timeline and Opportunity for Stakeholder Input

The proposed decision is not final yet, and stakeholders have the opportunity to influence the outcome through the CPUC’s comment process. The timeline is as follows:

1. Filing of Comments: Interested parties, including VoIP providers, can submit comments on the proposed decision, raising concerns or supporting specific elements of the decision.
2. Filing of Reply Comments: After comments are filed, there will be an opportunity to submit reply comments, addressing points raised by other stakeholders.
3. CPUC Vote: The full CPUC Commission will review the comments and vote on whether to adopt, modify, or reject the proposed decision.

This is a crucial opportunity for VoIP providers and industry participants to voice their positions before the CPUC finalizes the decision.

Key Takeaways for VoIP Providers and Industry Implications

This proposed decision is a watershed moment in the regulation of VoIP services in California (and beyond), with several key implications:

• Increased Compliance Burden: Providers offering fixed and limited facilities-based VoIP services will face significant regulatory obligations, including transaction approvals, compliance filings, and adherence to service quality standards.
• Nationwide Precedent: If approved, California will become the first state to impose such stringent regulations on VoIP providers, particularly regarding mergers and transfers of control. This could lead to a snowball effect, with other states potentially adopting similar measures, and even a potential shift in FCC policy regarding VoIP regulation.
• Legal Uncertainty: While the decision is not yet final, it could face legal challenges. Companies operating in California should prepare for potential litigation while ensuring they comply with the new regulatory framework.

Our Firm’s Involvement and Next Steps

Our firm has been closely involved in this proceeding, representing the Cloud Communications Alliance (CCA) in the rulemaking process:

• REPLY COMMENTS OF CLOUD COMMUNICATIONS ALLIANCE IN RESPONSE TO COMMENTS ON THE SCOPING MEMO AND RULING IN THE PROCEEDING TO CONSIDER CHANGES TO LICENSING STATUS AND OBLIGATIONS OF INTERCONNECTED VOICE OVER INTERNET PROTOCOL CARRIERS
• CLOUD COMMUNICATIONS ALLIANCE MEMBER RESPONSES TO ALJ RULING SEEKING COMMENT ON TECHNOLOGICAL METHODS OF PROVIDING VOICE SERVICES

We are actively analyzing the details of the proposed decision and its implications for our clients, members of the CCA, and the VoIP and Cloud Communications industry sector, as a whole. As part of our ongoing efforts, we will be deciding whether to file Comments and Reply Comments on behalf of the CCA (or on behalf of individual clients), advocating against burdensome aspects of the decision.

We encourage CCA members and other VoIP providers to contact either the Alliance or our firm for more information and to join the advocacy effort. Now is the time to engage with the regulatory process and ensure your voice is heard.

In due time, our team may also consider exploring the potential for appeals or federal-level actions through the FCC. While this approach carries certain risks, it could present an opportunity to advocate for a unified national policy on VoIP regulation, potentially prompting the FCC to reconsider its treatment of VoIP under Title II telecommunications service classifications. This would include broad preemption measures to restore the VoIP sector to the deregulatory framework established by the Vonage Order two decades ago, which allowed the industry to thrive. However, over the past twenty years, this framework has slowly eroded through a series of federal and state regulatory decisions. These new regulations have created an increasingly hostile regulatory environment for VoIP providers, despite little evidence of consumer harm in the sector. It appears that many of these regulations are being adopted for the sake of regulation itself, without addressing any real or demonstrated harms. Restoring the original deregulatory approach could help the VoIP industry regain the flexibility and innovation-friendly environment it once enjoyed.

Conclusion

The CPUC’s proposed decision marks a significant shift in how VoIP services are regulated, with far-reaching consequences for the industry. Providers of fixed and limited facilities-based VoIP services in California must prepare for new compliance obligations and be ready to adapt to a more stringent regulatory environment.

Our firm is closely monitoring the situation and is prepared to provide guidance on how these changes may impact your business. We will continue to issue updates and advisories as the CPUC moves toward a final decision.

For more detailed information or to understand the implications for your company, please contact the attorney responsible for your account or, in the alternative, contact Jonathan S. Marashlian at jsm@commlawgroup.com.