FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers

May 19, 2005. The Federal Communications Commission (FCC) adopted, but did not release, a First Report and Order and Notice of Proposed Rulemaking in its proceeding titled "In the Matter of IP-Enabled Services" at its event titled "Open Meeting". This item requires "interconnected VOIP service providers" to comply with 911/E911 rules within 120 of publication of this item in the Federal Register.

The FCC commenced this proceeding on February 12, 2004, by adopting its Notice of Proposed Rulemaking (NPRM) [97 pages in PDF] regarding regulation of internet protocol (IP) enabled services. See also, story titled "FCC Adopts NPRM Regarding Regulation of Internet Protocol Services" in TLJ Daily E-Mail Alert No. 837, February 16, 2004.

While the 2004 NPRM addressed a wide range of IP enabled services and categories of regulation, the just adopted order only addresses the application of 911 and E911 telecom regulation to voice over internet protocol (VOIP) service providers. This item includes new rules, as well as a further notice of proposed rule making (NPRM). The original proceeding bears the docket number 04-36. This item assigns a new docket number, 05-196, and a new title, "E911 Requirements for IP-Enabled Service Providers".

Other issues raised by the 2004 NPRM, but not addressed by the present order, include expanding the Communications Assistance for Law Enforcement Act (CALEA) to cover IP enabled service providers, compensation issues, taxing IP enabled services to support the Universal Service Fund, consumer protection, and disability access regulation.

The order extends the FCC's regulations pertaining to 911 and E911 service to "interconnected VOIP service providers". The FCC release states, and the Commissioners reiterated, that this term encompasses VOIP service that facilitates calls that originate or terminate on the public switch telephone network (PSTN). The FCC has not yet elaborated with any precision the scope of this concept. Also, some used the phrase, "touches the PSTN", to describe the scope of the order.

The order imposes many obligations on these interconnected VOIP service providers with respect to providing 911 service. However, the order gives these entities no new rights to facilitate their compliance. There is no requirement that local exchange carriers interconnect with VOIP service providers. There is no ban on port blocking. ILECs have no obligations to VOIP service providers. VOIP service providers have no right of access to emergency facilities such as 911/E911 call centers. Most of these facilities are owned by incumbent local exchange carriers (ILECs).

This order is a victory for the ILECs. It is a defeat for supporters of an unregulated and innovative information technology sector. If it withstands judicial review, it will set a precedent for FCC authority to impose telecom regulatory regimes upon internet services, and for FCC authority to plan and direct the use of information technology.

Involved parties debate the question of whether consumers will benefit from this order. The four Commissioners, all of whom voted for this item, argue that consumers will benefit. The Commission also took the unusual step of turning the meeting into forum for advocates of the consumer and public safety benefits of the order. The Commission reduced the agenda to only this item. Most of the meeting was devoted to speeches by public safety officials, and VOIP customers who told stories of being unable to reach emergency call centers. Opponents have argued throughout this proceeding that consumers will benefit if the FCC allows information technology innovators to develop new and expanded public safety solutions without government interference.

The order is vulnerable to being vacated upon judicial review on any of several legal grounds. The primary basis for challenging the order will be the argument that the FCC lacks statutory authority to impose telecommunications regulations upon providers of information services that are not communications carriers, and that Title I, the authority relied upon by the FCC, provides no such authority.

This item is FCC 05-116 in WC Docket Nos. 04-36 and 05-196. The 2004 NPRM is FCC 04-28.