On May 19, 2005, the FCC adopted new rules which effectively end the
era of regulation-free VoIP. In the first of what is likely to be a series
of rulings erecting regulatory requirements for VoIP services, the FCC adopted a First Report and Order (“Order”) establishing requirements to be met by certain VoIP providers with respect to 911 emergency
calling capabilities. The deadline for compliance with the new VoIP enhanced
911 (“E911”) delivery requirements is expected to be by the end of the year or early 2006.
The FCC’s Order
requires reliable E911 emergency services as a standard feature rather than an optional feature of interconnected VoIP service
offerings. This means that interconnected VoIP providers must deliver all 911 calls as well as a call back number and the customer’s “registered location”
for each call to the customer’s designated local emergency operator. The
customer’s designated local emergency operator means the public safety answering point (PSAP), designated statewide
default answering point, or appropriate local emergency authority that serves the caller’s “registered location”. Interconnected VoIP providers may not attempt to fulfill their E911 obligations by
routing 911 calls to 10-digit NPA-NXX numbers (so called “administrative numbers”) of designated local emergency
operators. This requirement is intended to address complaints from consumers
who have been unable to reach emergency operators and instead have been routed to general numbers or police stations which
are not necessarily staffed 24 hours a day 7 days a week and have longer hold times.
The requirements are limited
to interconnected VoIP providers. For purposes of these new rules, the Order
specifically defines an interconnected VoIP service as one which offers real-time, two-way voice communications; requires
the user to have a broadband internet connection; requires special transmission equipment that receives and transmits internet
protocol packets (e.g., SIP phones); and allows customers to place calls to and
receive calls from the PSTN.
The Order requires interconnected
VoIP providers to provide emergency operators with customer “registered location” and call back information. Interconnected VoIP providers must, prior to initiating a customer’s new service,
collect the location and call back information for where the customer will first use the service. Customers must be able to update this “registered location” information both from home and
away from home. The FCC cautions interconnected VoIP providers against charging
customers to update their “registered location”, “as this would discourage customers from doing so and therefore
undermine this solution.”
Including E911 capability as
a standard service feature (not an optional one) is mandatory. Customers of interconnected
VoIP providers will not be allowed to opt-in or opt-out of E911 service since this would undermine nationwide public safety
efforts.
The Order also establishes
new disclosure requirements for interconnected VoIP providers. These new disclosure
rules generally require that affected VoIP providers make clear to all customers, existing and new, all capabilities and limitations
of their E911 service. For example, if circumstances exist under which E911 service
may not be available or would in some way be limited by comparison to traditional E911 service, this must be disclosed prominently
and in plain language. Unlike other provisions of the Order, affected
VoIP providers must comply with these new disclosure requirements by no later than the effective date of the Order.
It is important to note that
the FCC is extending E911 regulatory obligations to VoIP providers without first deciding whether interconnected VoIP services
are regulated telecommunications services or unregulated information services. The
FCC side-steps this threshold issue and opens the door for potential future regulation by finding that since interconnected
VoIP services function in a manner similar to conventional telephony services, a customer reasonably can expect to be able
to access appropriate emergency services by dialing 911 using an interconnected VoIP service. Thus,
the FCC concludes that it can extend E911 regulatory requirements to VoIP services regardless of whether they are telecommunications
services or information services.
The Order sends a message
to all incumbent local exchange carriers (ILECs) that they must continue to provide interconnected VoIP providers with access
to their 911 networks. The Commission warned that it will “closely monitor”
this to ensure cooperation between the two in order to meet the compliance deadlines set by the Order.
The Order is effective
30 days after publication in the Federal Register and full compliance with the Order is required within 120 days of
the effective date. According to FCC staff, it is expected that the Order
will be published in the Federal Register sometime in mid-summer (e.g., late June
to July). Based on this timeline, VoIP providers should plan on an effective
date of late summer or early fall, with full compliance due by the end of the year or early 2006. Affected VoIP providers will need to submit a compliance letter to the FCC before that 120 day deadline
detailing their compliance with the new requirements. In its Order, the
FCC promises “swift enforcement,” including forfeitures and license revocations, against any interconnected VoIP
providers which do not submit a timely compliance letter.
Released in conjunction with
the Order, the FCC issued a Notice of Proposed Rulemaking (“NPRM”) which seeks public comment on additional steps that the FCC should take to ensure that interconnected
VoIP providers offer reliable E911 service. Among other things, the NPRM
seeks comment on potential advanced E911 solutions that would allow interconnected VoIP providers to automatically identify
(i.e., without input from the user) a customer’s service location. In addition, it asks what role state regulators can play in implementing the FCC’s E911 rules.
The Commission’s action
responds to mounting concerns caused by numerous incidents where a VoIP customer dialed 911 in an emergency and was unable
to reach emergency operators. In Texas, Connecticut and Florida, for example, VoIP
customers were unable to get through to 911 emergency operators. At least one
of the tragic incidents resulted in a death.
The Order represents
the first clear step by the FCC to regulate VoIP offerings. The FCC’s action
is likely the first in a series of forthcoming decisions expected to establish a regulatory regime to encompass the innovative
service. At a minimum, providers can expect additional rulings from the FCC which
could extend regulatory requirements to VoIP providers for the payment of Universal Service contributions, intercarrier compensation
(including possibly the payment of access charges), and other obligations.
June 2005
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