Legal Alerts and Articles
New FCC VoIP Rules
On October 21, 2008, the FCC adopted new rules intended to facilitate the provision of 911 and enhanced 911 (E911) service by providers of Interconnected Voice over Internet Protocol ("interconnected VoIP") service. Specifically, the FCC's Report and Order ("Order") achieves this by giving interconnected VoIP providers rights of access to any and all capabilities necessary to provide 911 and E911 services from entities that control those capabilities.
Background
On July 23, 2008, the President signed into law the New and Emerging Technologies 911 Improvement Act of 2008 ("NET 911 Act") to promote public safety by facilitating the rapid deployment of interconnected VoIP 911 and E911 services, and to encourage the Nation's transition to a national IP-enabled emergency network. The NET 911 Act imposes on interconnected VoIP providers the obligation to provide 911 and E911 service, supplementing the FCC's current rules imposing 911 and E911 requirements on such providers (see 47 C.F.R. §§ 9.1 et seq.). The NET 911 Act also imposes express obligations on the owners or controllers of capabilities that can be used for 911 or E911.
Access to 911 and E911 Capabilities
As mandated by the NET 911 Act, the FCC's new rules require the owner or controller of a capability that can be used for 911 or E911 service to make that capability available to a requesting interconnected VoIP provider. Typically, owners or controllers of such capabilities include incumbent Local Exchange Carriers ("LECs"); wireless service providers; states, localities and public safety access points ("PSAPs"); and third party commercial providers which route E911 calls to the appropriate PSAP.
According to the FCC's new rules, if the owner or controller makes a requested capability available to any wireless provider for its provision of 911 or E911 service, the owner or controller must make that capability available to interconnected VoIP providers. Additionally, even if the owner or controller does not make the requested capability available to any wireless providers, the owner or controller must make that capability available to a requesting interconnected VoIP provider if the capability is necessary to enable the interconnected VoIP provider to offer 911 or E911 service.
However, the FCC's new rules do not grant interconnected VoIP providers an unlimited right of access to a requested capability. If an interconnected VoIP provider obtains access to a capability pursuant to the new rules, it must use that capability only for the purpose of providing 911 or E911 service.
Rates, Terms and Conditions
The FCC's new rules also require that the rates, terms, and conditions on which a capability is offered to an interconnected VoIP provider be reasonable. For purposes of enforcement, the FCC will consider rates, terms, and conditions to be reasonable if they are: (1) the same as the rates, terms, and conditions that are made available to wireless providers, or (2) in the event such capability is not made available to wireless providers, the same rates, terms, and conditions that are made available to any telecommunications carrier or other entity for the provision of 911 or E911 service.
To the extent that an owner or controller of a capability provides a capability to more than one wireless provider or other entity, an interconnected VoIP provider that requests access to such capability is entitled only to the rates, terms and conditions made available to any other provider (i.e. an interconnected VoIP provider is not allowed to "pick and choose" the best rates, terms and conditions from several available service agreements).
Although the FCC will not require owners and controllers of capabilities for the provision of 911 or E911 service to publish their rates, terms, and conditions or file them with the Commission, its new rules do require owners and controllers of such capabilities to ensure that interconnected VoIP providers have ready access to the rates, terms, and conditions on which a capability is provided.
Technical, Network Security and Privacy Requirements
Finally, the FCC's Order directs interconnected VoIP providers to comply with all applicable industry security standards. Recognizing that the security of the nation's emergency services network depends on many interlocking measures, the FCC's Order states that the network elements used to provide 911 service must be kept both physically secure and secure against unauthorized electronic access, such as through hacking. The Order also contemplates that incumbent LECs and other owners or controllers of 911 or E911 infrastructure will acquire information regarding interconnected VoIP providers and their customers for use in the provision of emergency services, but expressly prohibits the use of customer information obtained as a result of the provision of 911 or E911 services for marketing purposes.
Effective Date
According to the Order, the new rules are to take effect 30 days after publication in the Federal Register subject to OMB approval.
A copy of the FCC's Order and new rules can be accessed at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-249A1.pdf. Please do not hesitate to contact me if you have questions regarding the FCC's Order or new rules.
October 2008