When the FCC says so, that's when.

Today, the D.C. Circuit ruled 2-1 that the FCC's views on CALEA coverage should be deferred to.  (I've posted many times about CALEA here.)

The brief background about CALEA is that it is a 1994 statute written to ensure that telecom carriers would build their facilities so as to be easily tappable by law enforcement.  "Information services" were explicitly left out of its coverage -- and were understood to include online applications like email. 

Now, although the FBI has made no showing that it's having problems enforcing subpoenas or warrants for information, law enforcement badly wants to extend the coverage of CALEA to include broadband access and VoIP services that connect to the traditional phone network.

The problem?  Congress didn't write the statute to include what law enforcement wants.  The FCC has helped law enforcemet in two recent orders that re-read CALEA to cover "information services" to the extent they are "substantial replacements" for local telephone service.  This is a weak legal argument, but the FCC has persisted.

Today, Judge Sentelle, writing for the majority, points out that the CALEA statute and the 1996 Act are different (in particular, the 1996 Act doesn't include a "substantial replacement" element).  The FCC has interpreted CALEA to cover information services in some circumstances.  The D.C. Circuit is saying that it should defer to the FCC's interpretation when it is making a "reasonable policy choice."

Judge Edwards's thundering dissent notes that deference isn't appropriate when Congress hasn't delegated authority to the Commission in the first place.  (Last year, I wrote an article saying the same thing.)  In a nutshell,