The CALEA wiretap challenge before the U.S. Appeals Court, D.C., apparently finds the FCC in the hot seat, with the Commission possibly headed for remand or worse. The FCC could lose big when the D.C. Circuit hands down a ruling later this year in a court case filed by the American Council on Education, CompTel and various Internet and education groups, at least to judge from oral argument Fri. The plaintiffs challenged how the FCC has applied CALEA to VoIP and other Internet communications. Judges Harry Edwards and David Sentelle hit FCC attorney Jacob Lewis with repeated questions challenging the agency抯 assertion that these IP communications are unregulated information services under the Telecom Act but telecom services under CALEA. 揧our argument makes no sense,?said Edwards: 揥hen you go back to the office, have a big laugh, okay? This is ridiculous.?Edwards told Lewis: 揂 telephone isn't an orange... Just because it's in a new statute you can't say it's fruit.?br> nThe oral arguments played out in a packed courtroom full of telecom attorneys anxiously watching the proceedings, including FCC Gen. Counsel Sam Feder. Former FCC legal advisor Matt Brill, who represented plaintiffs, faced less hostile questioning. Brill told the panel that on the issue of CALEA and VoIP the FCC needs at the very least to make a determination of how VoIP is classified. 揙ur point is only that FCC never engaged in the analysis,?he said. Sources said the FCC appears likely to lose outright on its decision that CALEA applies to packets of information flowing over the Internet -- such as e-mails, photos or other data. The court抯 likely decision on VoIP, and whether that part of the order would be remanded, was less clear. 揋iven the intense reaction of Judge Edwards I would not be surprised that, as least as it applies to broadband services, the order will be vacated and possibly remanded as it relates to VoIP,?said an attorney who works on VoIP issues.
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