GEORGIA " NORTH CAROLINA " SOUTH CAROLINA " VIRGINIA " WASHINGTON, D.C. This memorandum is provided for general information purposes only and should not be relied upon as legal advice. FCC Releases E911 Order Applicable To Interconnected VoIP Services Places many nearly immediate obligations on VoIP providers and signals potentially expansive obligations on equipment vendors June 6, 2005 On June 3, 2005, the Federal Communications Commission ( cFCC d or cCommission d) released an order setting forth the 911 obligations of providers of interconnected voice over Internet Protocol ( cVoIP d) services.
The FCC also issued a notice of proposed rulemaking ( cNPRM d) regarding potential additional requirements that could be applied to service providers and equipment manufacturers. Key points Within 120 days of the effective date of the order, interconnected VoIP providers must: " Transmit all 911 calls, a call back number, and the consumer 9s cRegistered Location d to the public service answering point ( cPSAP d) via the dedicated cWireline E911 Network; d " Satisfy this requirement by interconnecting indirectly with a 911 provider, directly with the Wireline E911 Network, or through any other means; " Begin maintaining a cRegistered Location d for every customer 3 no opt-out ... more. less.
allowed 3 that may be modified by consumers by multiple means, including use of the telephone; " Distribute to new and existing customers a letter describing the E911 service provided (along with limitations) and warning stickers or labels noting that E911 service may have certain limitations; and " Submit to the FCC a letter describing compliance with the above-requirements and other aspects of the order. In the associated NPRM, the Commission seeks comment on a number of issues, including whether it should require all VoIP terminal adapters and related equipment sold after June 1, 2006 to be capable of providing physical location information automatically.<br><br> The Commission also seeks comment on whether and to what extent its rules should be expanded to VoIP services that are not fully interconnected to the public switched telephone network ( cPSTN d). The FCC 9s order will take effect 30 days after publication in the Federal Register, which should occur in the next week or two. Accordingly, the 120 day compliance deadline set by the Commission will likely occur in early to mid-November 2005.<br><br> Comments on the NPRM will be due in late July or early August, and replies will be due 30 days thereafter. Background Just last fall, the FCC took action in its Vonage decision to preempt state regulation of VoIP services provided over broadband. Although the Commission declined to address whether VoIP services should be regulated as ctelecommunications services d or cinformation services, d the Commission nevertheless concluded that such services are interstate, and therefore beyond the scope of state telephony regulations.<br><br> In so doing, the Commission expressly preempted application of state 911 regulations to VoIP services. GEORGIA " NORTH CAROLINA " SOUTH CAROLINA " VIRGINIA " WASHINGTON, D.C. This memorandum is provided for general information purposes only and should not be relied upon as legal advice.<br><br> Since that time, a number of state Attorneys General have taken various actions against VoIP providers, primarily under the auspices state consumer protection laws, for failing to adequately inform consumers of the 911 shortcomings that exist in some VoIP services. The state Attorneys General actions, the proliferation of VoIP services, numerous reported incidences of VoIP 911 failures, and apparent consumer misunderstanding of VoIP 911 offerings combined to create substantial pressure on the FCC to establish 911 requirements on VoIP providers pursuant to Commission 9s statutory obligation to promote and protect public safety. The Regulations The Commission adopted its regulations pursuant to its cancillary jurisdiction d under Title I of the Communications Act, as well as under section 251(e) of the Communications Act, which gives the Commission plenary authority over the administration of telephone numbers in the United States.<br><br> As a result, regardless of whether VoIP is an cinformation service d or ctelecommunications service, d the Commission asserted authority necessary to establish these regulations. Balancing its desire to minimize regulation on Internet-based services with its obligation to protect public safety, the Commission concluded that because consumers expect that VoIP service will function like a cregular telephone d service, it is reasonably necessary to establish 911 obligations to the extent practicable. For purposes of the order, the Commission defined VoIP as any IP-enabled service offering real-time, multidirectional voice functionality that mimics traditional telephony.<br><br> The Commission also identified additional characteristics of interconnected VoIP services, which includes any service that: (1) enables real-time, two-way voice communications; (2) requires broadband; (3) requires IP-compatible customer premises equipment ( cCPE d); and (4) permits users to send calls to and receive calls from the PSTN. Within 120 days of the effective date of the FCC 9s order, interconnected VoIP providers must transmit all 911 calls, as well as a call back number and the caller 9s cRegistered Location, d to the PSAP or other designated statewide answering point. Importantly, this answering point must be part of the cdedicated Wireline E911 Network, d rather than an administrative number.<br><br> The Commission clarified that interconnected VoIP providers may provide this functionality themselves or purchase it from others, and the Commission appeared to look favorably on wholesale offerings provided by Level 3, Intrado, and Pac-West Telecom. Indeed, because of the existence of these wholesale services and related offerings from incumbents and others, the Commission found that implementation of its 911 requirements is technically feasible. Interconnected VoIP providers also must require their customers to provide a cRegistered Location d for their service.<br><br> VoIP providers may not require consumers to copt-in d to this feature, nor may VoIP providers enable consumers to copt-out. d In addition, consumers must be offered multiple means of modifying their Registered Location, including at least one means that requires use only of the CPE ( e.g., telephone handset) to modify Registered Location. Additionally, interconnected VoIP providers must send a letter to new and existing customers describing the circumstances under which E911 service may not be available or may be limited in some way. VoIP providers also must distribute to all subscribers warning stickers or other labels noting that E911 service may be limited.<br><br> Providers also must suggest that consumers place these stickers/labels on or near VoIP CPE. GEORGIA " NORTH CAROLINA " SOUTH CAROLINA " VIRGINIA " WASHINGTON, D.C. This memorandum is provided for general information purposes only and should not be relied upon as legal advice.<br><br> All interconnected VoIP providers must submit a letter to the FCC describing compliance with the Commission 9s rules no later than 120 days after the effective date of the order. Although 120 days is not a long time, the FCC 9s order will not take effect until 30 days after publication in the Federal Register, which should take a week or two. Accordingly the ultimate implementation deadline should not occur until early-to-mid November.<br><br> Finally, the Commission declined to exempt providers of interconnected VoIP service from liability under state law. This is a surprising development, because pursuant to federal law, local exchange and wireless carriers are held to a cgross negligence d standard for 911 liability. Citing an absence of specific statutory authority to exempt VoIP service providers from liability, the Commission appears to have opened interconnected VoIP providers up to ordinary cnegligence d liability under state law for 911 service, which may prove very problematic.<br><br> The NPRM In the NPRM, the Commission primarily seeks comment on how it can facilitate the development of techniques for automatically identifying the geographic local of users of VoIP service. Specifically, the Commission asks whether it should require all terminal adapters or other equipment used in the provision of interconnected VoIP service sold as of June 1, 2006 to be capable of providing location information automatically, whether embedded in other equipment or sold to customers as a separate device. The Commission also seeks comment on a variety of other issues, including whether and to what extent 911 obligations should apply to services that are not cfully interconnected d to the PSTN.<br><br> Although the FCC is somewhat vague on this point, it appears that they are contemplating expanding 911 obligations to service such as cSkype In d and cSkype Out, d which provide the capability of interfacing with the PSTN, but are not fully interconnected. Comments on the NPRM are due 45 days after publication in the Federal Register. Accordingly, our best estimate is that the due dates for comments will be in very late July or early August.<br><br> Reply comments are due 30 days thereafter. Conclusion The Commission has firmly entered the world of VoIP regulation. Companies not traditionally accustomed to FCC regulation, including software providers and equipment manufacturers, need to keep careful eye on this proceeding as the Commission appears on the cusp of greatly expanding the types of applications and devices it may seek to regulate.<br><br> As a general matter, service providers should be able to comply materially with the Commission 9s requirements within the stated deadline. The real sleeper issue, however, is whether and to what extent VoIP providers are held to a state-specific negligence standard 3 rather than a gross negligence standard 3 in their provision of 911. There is no reason for the VoIP providers to be held to a stricter liability standard than local exchange carriers, but intentionally or unintentionally, that apparently is the exact situation created by the FCC in the order.<br><br> Please contact Mike Hazzard (202-857-4540) or Ross Buntrock (202-857-4479) if you have any questions regarding this advisory.