• FCC Issues New 911 Access Rules for VoIP Service Providers
  • November 12, 2008 | Authors: K.C. Halm; Richard A. Gibbs
  • Law Firm: Davis Wright Tremaine LLP - Washington Office
  • On October 21, the FCC issued an order1 and rules implementing the New and Emerging Technologies 911 Improvement Act of 2008 (the “NET 911 Act”), a new statute signed into law on July 23, 2008, and mandating access to 911 and enhanced 911 (E911) capabilities for interconnected voice over Internet protocol (VoIP) service providers.

    The NET 911 Act requires incumbent local exchange carriers (ILECs) and other entities that own or control 911 facilities to provide access to 911 and E911 facilities and “capabilities,” including interconnection, on the same rates and terms currently offered to Commercial Mobile Radio Service (CMRS) providers.

    This means that interconnected VoIP providers have a right to access individual elements of the local 911 architecture, including, but not limited to: selective routers; trunk lines between the selective router and public safety answering points (PSAPs); and the multiple location, name, and address databases, including Automatic Local Identification (ALI), Database Management System (DBMS) and Master Street Address Guide (MSAG) databases, which are used to support the provision of 911 services.

    Because some of these elements are owned or controlled by entities other than the ILEC, these new rules expand the FCC's authority over entities that it has not traditionally regulated, including PSAPs and providers of VoIP positioning center services, like Intrado and TCS.

    Essentials of the new rules

    The new access rules contain three key elements.

    First, the rules grant interconnected VoIP providers a right of access to the 911 “capabilities” provided to a CMRS provider. These capabilities must be made available on terms that are equal to those available to CMRS providers. Additionally, even if the capability is not made available to CMRS providers, interconnected VoIP providers have a right of access if that capability is necessary for the interconnected VoIP provider to provide 911 service in compliance with the FCC's rules.

    Second, the rules require that the rates, terms, and conditions on which a capability is provided to an interconnected VoIP provider shall be “reasonable.” The Commission determined that rates, terms, and conditions are “reasonable” if the rates, terms, and conditions are the same as that available to CMRS providers, any telecommunications carrier, or any entity for the provision of 911 service.

    Third, the access granted to an interconnected VoIP provider under the rules may be used only for the purpose of providing E911 service in accordance with the Commission's rules. In other words, interconnected VoIP providers may not use the facilities obtained under these rules to provide services beyond 911 services.

    Issues the FCC did not address

    While these rules are intended to benefit interconnected VoIP service providers, the FCC failed to deal with several key issues comprehensively.

    Most notably, the FCC declined to require 911 facilities providers to publish the terms of their contracts with CMRS providers. On this point the FCC simply said that 911 facilities providers must ensure that VoIP providers have “ready access” to these terms. Therefore, VoIP providers may have a very difficult time enforcing their rights to obtain access terms that are equal to those terms provide to CMRS providers.

    The FCC declined to allow interconnected VoIP providers to “pick and choose” specific terms from a CMRS agreement. As a result, interconnected VoIP providers would only be able to adopt CMRS terms in their entirety, which may limit the practical utility of these new rules.

    The FCC did not adopt rules regarding technical, network security, and information privacy requirements. However, the FCC stated that interconnected VoIP providers are required to comply with all “applicable” industry network security standards to the same extent as traditional telecommunications carriers. The Order also reaffirms that no entity may use “customer information” obtained in the provisioning of emergency services for marketing purposes.

    Additionally, the FCC chose not to specify any capabilities that could be used to help locate where an emergency call is coming from. The proposed order circulated would have made clear that the NET 911 Act guarantees carriers access to “last cell site” information, which would have allowed a carrier to access data about the location of the most recent call placed outside of the provider's service area and could help provide location information for 911 calls. The majority of commissioners, however, believed that requiring access to specific technologies such as last-known call data would be premature and outside of the scope of the NET 911 Act's requirements.

    Moreover, the FCC declined to issue detailed rules listing capabilities or entities with ownership or control of such capabilities because they believed overly specific rules lacked flexibility to accommodate the evolving IP-based 911 system and would fail to take into account local variations in 911 implementations. Chairman Kevin Martin disagreed, believing that the new rules could leave mobile VoIP customers without adequate 911 services when they roam outside their service provider's footprint.

    Finally, please note that the NET 911 Act imposes on interconnected VoIP providers the obligation to provide 911 and E911 service in accordance with current FCC rules. This is not a new requirement since the FCC already mandated such access, but it assures that the obligation will continue even if the FCC's requirement were later invalidated.

    These new regulations will become effective 30 days after publication in the Federal Register, subject to approval by the Office of Management and Budget.


    1 In re Implementation of the NET 911 Improvement Act of 2008, Report and Order, FCC 08-249 (rel. Oct. 21, 2008).