VoIP, Title II, And The “Briar Patch”: Why FCC Classification—with Forbearance—May Be Safer Than The State-by-State Alternative

The long-running debate over whether interconnected Voice over Internet Protocol (“VoIP”) services should be classified as Title II telecommunications services is no longer theoretical. Public Knowledge, the Communications Workers of America (“CWA”), and allied public interest groups have renewed pressure on the Federal Communications Commission (“FCC” or “Commission”) to resolve VoIP’s regulatory status as the nation moves toward an all-IP voice network.

Most recently, CWA filed a May 11, 2026 letter and petition urging the FCC to “act swiftly” to classify VoIP as a Title II telecommunications service, arguing that without Title II classification the Commission lacks clear authority to mandate interconnection, prevent call blocking, protect rural call completion, and ensure continued 911 access after the TDM-based public switched telephone network disappears. The CWA filing expressly references multiple active FCC proceedings, including IP-Enabled Services, WC Docket No. 04-36; Reducing Barriers to Network Improvements and Service Changes, WC Docket No. 25-209; Accelerating Network Modernization, WC Docket No. 25-208; Advancing IP Interconnection, WC Docket No. 25-304; and Reforming Legacy Rules for an All-IP Future, WC Docket No. 25-311.

Public Knowledge, CWA, and others have pressed this issue for several years. In 2022, they filed and later amended a Petition for Declaratory Ruling asking the FCC to classify interconnected VoIP—particularly facilities-based interconnected VoIP—as a Title II telecommunications service. More recently, Public Knowledge, the Center for Rural Strategies, and CWA submitted comments in the FCC’s IP interconnection proceeding urging the Commission to classify VoIP as a Title II common carrier communications service.

For many VoIP providers, that proposal will sound like regulatory heresy. The industry has spent two decades resisting Title II classification, and for good reason. Traditional common carrier regulation carries real risks: rate regulation, tariffing, discontinuance obligations, transfer-of-control approvals, interconnection mandates, and a host of legacy requirements designed for monopoly-era telephone networks. But the regulatory world VoIP providers actually inhabit today is not the light-touch world many still imagine. The FCC has already extended many of the most consequential voice-related obligations to interconnected VoIP providers, including 911/E911, local number portability, universal service contributions, CALEA, disability access, CPNI/privacy obligations, outage reporting, robocall mitigation, STIR/SHAKEN, and numbering-related duties. What VoIP providers have not received, at least not clearly, are the benefits of being governed primarily by a single expert federal agency.

That asymmetry is becoming increasingly dangerous.

The FCC’s all-IP proceedings are accelerating the question. In Advancing IP Interconnection, WC Docket No. 25-304, the FCC is examining the future legal framework for IP-to-IP interconnection for voice services, including the Commission’s authority over VoIP interconnection. In Reforming Legacy Rules for an All-IP Future, WC Docket No. 25-311, the FCC opened a new proceeding to reform rules that have hindered the transition to all-IP networks and expressly linked that work to the broader Accelerating Network Modernization proceeding in WC Docket No. 25-208. These proceedings may force the Commission to confront a question it has deferred for nearly twenty years: if voice service is moving to IP, who has the authority to ensure interconnection, reliability, consumer protection, public safety, and national uniformity?

The answer cannot be “everyone.” Yet that is increasingly where the law is headed.

The most striking evidence comes from the January 2024 reply comments filed by 45 State Attorneys General in the FCC’s net neutrality proceeding, WC Docket No. 23-320. The State AGs did not take a position on VoIP classification. Instead, they asked the FCC to clarify that any Title II classification of VoIP would have “no bearing or effect” on the regulatory status of VoIP providers, including providers allegedly involved in routing illegal robocalls. The State AGs were candid about why: they rely on the FTC’s Telemarketing Sales Rule to prosecute entities that “assist and facilitate” unlawful telemarketing, and they warned that Title II classification of VoIP could “significantly undermine” their authority under that enforcement tool.

That filing should be read carefully by every interconnected VoIP provider, not only by gateway providers or carriers accused of knowingly facilitating illegal traffic. The State AGs did not draw a careful line between bad actors that actively cater to fraudulent robocall campaigns and ordinary providers that may appear somewhere in a call path. Their concern was broader: preserving state and FTC enforcement leverage over VoIP providers as a category. The comments expressly cited multiple enforcement actions involving VoIP-related defendants, including Smartbiz Telecom, XCast Labs, Stratics Networks, VoIP Terminator, Alcazar Networks, Avid Telecom, and others.

That matters because state enforcement actions often do not begin with a nuanced appreciation of where a provider sits in the call path. They begin with tracebacks, subpoenas, civil investigative demands, and complaints that name every provider the government can plausibly connect to the traffic. Even a provider with a responsible KYC program, robocall mitigation plan, traceback response process, and termination procedures may still be forced to prove that it did everything “by the book.” If regulators find a blemish—an incomplete customer file, a delayed traceback response, inconsistent documentation, or a reseller relationship that looks worse in hindsight than it did at onboarding—the cost of defense can quickly become the leverage for settlement.

This is the problem VoIP providers should be discussing more openly. The danger is not only formal regulation. The danger is being subject to nearly all of the burdens of common carrier regulation, plus the FTC, plus 50 State AGs, plus state consumer protection statutes, plus private litigation, without the discipline of a single federal regulatory framework.

California illustrates the other half of the problem. The California Public Utilities Commission’s VoIP rulemaking has signaled a willingness to push far beyond the historically lighter treatment of nomadic VoIP and pure resale models. As we have previously discussed, if California broadly defines “limited facilities-based VoIP” to include providers that own or control even minimal infrastructure used to provide service, many providers that long considered themselves outside traditional utility regulation could be swept into state-level telephone corporation obligations, including registration or certification requirements, transfer-of-control rules, bonding, consumer protection rules, and other carrier-style duties.

That is the patchwork future the industry should fear. Not a single FCC proceeding. Not a carefully bounded federal classification order. Rather, an expanding state-by-state regime in which California, other state commissions, State AGs, and private plaintiffs each assert their own theories of VoIP authority, often after the FCC has already imposed the federal obligations it considers most important.

This is why the “briar patch” may deserve a second look.

Title II classification would not have to mean full legacy telephone regulation. Section 10 of the Communications Act gives the FCC authority to forbear from applying provisions of the Act or Commission rules where enforcement is unnecessary to ensure just and reasonable practices, unnecessary to protect consumers, and consistent with the public interest. A rational VoIP classification framework could therefore pair a narrow Title II classification with broad, explicit forbearance.

At minimum, any VoIP Title II framework should include forbearance from legacy-style obligations that are unnecessary, disproportionate, or actively harmful in a competitive IP voice marketplace. That should include forbearance from tariffing and rate regulation; dominant-carrier rules; cost studies and legacy accounting obligations; certificate-style entry requirements; most discontinuance requirements for competitive VoIP offerings; traditional transfer-of-control approval obligations; unbundling and resale mandates designed for incumbent local exchange carriers; legacy intercarrier compensation/ access charge rules except where specifically retained or transitioned; and any obligation that would treat competitive VoIP providers as though they were monopoly-era public utilities.

At the same time, the industry should be realistic about the obligations the FCC is unlikely to forbear from, and in many cases should not forbear from. A sustainable federal framework would likely preserve core obligations tied to public safety, network integrity, consumer protection, and national policy: 911/E911, CALEA, disability access, CPNI/privacy, outage reporting, number administration, USF contribution obligations unless separately reformed, STIR/SHAKEN, robocall mitigation, traceback cooperation, rural call completion, and baseline duties to avoid unjust, unreasonable, or discriminatory practices in contexts where the FCC determines such duties are necessary.

The real industry objective should not be “no Title II.” That ship may already be taking on water. The better objective may be “Title II where necessary, forbearance where essential, and federal primacy where uniformity matters.”

That position could give the VoIP industry something it currently lacks: a coherent affirmative regulatory theory. Instead of defending an increasingly unstable no-classification limbo, providers could support a modernized Title II framework that recognizes interconnected VoIP as the successor to legacy voice service, while insisting that the FCC simultaneously forbear from legacy telephone rules that would chill competition, investment, and innovation. Just as important, the industry could urge the FCC to make clear that a federally classified and federally regulated VoIP service should not be subject to inconsistent state utility-style regulation, state certification regimes, or after-the-fact state enforcement theories that conflict with FCC policy.

This would not eliminate state authority altogether. Nor should it. States will continue to have roles in consumer protection, law enforcement, emergency services coordination, and intrastate matters not preempted by federal law. But FCC classification, coupled with carefully drawn preemption and forbearance, would provide a stronger basis for preventing the kind of regulatory creep now visible in California and reflected in the State AGs’ insistence that VoIP remain outside Title II so they can preserve TSR-based enforcement leverage.

For compliant VoIP providers, FCC primary jurisdiction offers several practical benefits. It places core technical and policy questions before the expert federal agency charged with governing communications networks. It promotes national uniformity for providers that operate across state lines. It creates a clearer framework for compliance, enforcement, and judicial review. It reduces the risk that providers will be forced to defend the same conduct under inconsistent state regimes. And it gives the industry a forum in which to advocate safe harbors, cure periods, traceback standards, KYC expectations, reseller oversight rules, and mitigation benchmarks that can be applied predictably across the country.

That last point is critical. Responsible providers should not oppose robust robocall mitigation rules. They should want clear rules. They should want rules that distinguish between providers knowingly enabling illegal traffic and providers that maintain serious compliance programs but may be pulled into a traceback chain. They should want an FCC framework that rewards documented KYC, timely traceback responses, meaningful reseller oversight, traffic analytics, escalation procedures, and termination of bad actors. What they should not want is a system where every State AG can decide, after the fact, that an otherwise responsible provider did not do enough.

The State AGs’ comments make the stakes plain. They are not merely asking the FCC to preserve the status quo. They are asking the FCC to avoid disrupting a legal environment in which VoIP providers remain exposed to state and FTC enforcement tools precisely because they are not classified as Title II common carriers. From the perspective of state enforcement authorities, that may be entirely rational. From the perspective of ordinary interconnected VoIP providers, it should be alarming.

The VoIP industry has long feared being thrown into the Title II briar patch. But the alternative increasingly looks less like freedom and more like being chased through 50 different thickets at once. A modern Title II classification order, paired with broad forbearance and clear federal primacy, may be the safer path—not because legacy common carrier regulation is attractive, but because the current legal limbo is becoming untenable.

The industry should use the FCC’s active all-IP proceedings to coalesce around a pragmatic position: classify interconnected VoIP only to the extent necessary to preserve national voice policy, public safety, interconnection, consumer protection, and FCC authority; forbear aggressively from legacy utility-style rules; and preempt inconsistent state regulation that threatens to fragment the national IP voice marketplace.

For VoIP providers, the question is no longer whether regulation is coming. It is who will regulate, under what standards, and whether providers will have a predictable federal framework—or a patchwork of state investigations, utility proceedings, consumer protection suits, and private claims. In that light, the briar patch may not look so terrible after all.

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