When Parity Is Inadequate

The provision of E-911 is a thousand-fold more complex than the provision of 911, mostly because wireless subscribers often are on the move. As a result, unlike their wireline counterparts, wireless carriers are faced with the unique task of constantly pinpointing the ever-changing locations of their subscribers. The complexity of this task coupled with unavoidable service interruptions caused by terrain, weather and vegetation increases the possibility that E-911 calls may be disrupted. One would think that, given the unique challenges posed by E-911, state and federal laws would encourage the provision of E-911 service by incorporating into their laws a uniform liability standard.

Rather than a uniform liability law, however, wireless carriers are faced with a patchwork quilt of liability standards. This is particularly noxious to an industry that consists of numerous carriers that operate systems in multiple states. Because a uniform liability standard is absent, the licensee of a wireless system that spans state borders will find itself subject to varying degrees of liability depending on the location of the E-911 call.

Where does this leave the wireless carriers? Without a uniform level of protection, it virtually is impossible for carriers to assess potential liability rationally and take steps to prevent it.

DISCONTINUITY A hodgepodge of state liability laws exists today. Many states have enacted statutes that provide limited liability for 911 or E-911 operations, but protection for wireless 911 and E-911 often is not explicit. Certain state statutes protect wireline carriers, public-safety authorities or both, but it is not clear if this protection extends to wireless carriers. Other state legislatures, such as California, Maryland, Oklahoma and South Carolina, have not enacted laws explicitly protecting carriers but instead defer to tariffs filed with the state public utilities commissions. These tariffs may limit liability for wireline carriers but generally provide no protection for wireless carriers because such carriers no longer are regulated and hence do not file tariffs.

Interestingly, in California, a state that does not provide statutory liability limitation for carriers in the provision of 911 services, a judge limited damages to $5,000 for a plaintiff who alleged that L.A. Cellular's failure to complete her 911 call resulted in severe bodily injury. Wireless carriers should not feel overly comforted by this result because the judge relied on a previously filed cellular tariff as the basis for limiting damages. However, state tariffs no longer are required to be filed due to the federal preemption of state wireless rate-making. Thus, wireless carriers may not be able to limit liability via tariffs.

In states that do provide immunity for wireless 911, the protection level varies widely. In some states, wireless carriers and their employees may be liable only for conduct amounting to gross negligence or wanton and willful misconduct. However, in other states wireless carriers can be held liable for simple negligence. Also, in a handful of states it appears that carriers may be immune completely from liability because the statute provides no exception to the grant of immunity.

The FCC recognizes that increased liability risks are a serious concern to wireless carriers, yet it has taken a hands-off approach, explicitly declining to provide liability protection. Last year, the California 911 program manager sent a letter to the FCC requesting an emergency declaratory ruling as to whether a carrier has an obligation to deploy wireless E-911 in states that do not provide immunity. In its ruling, the Wireless Telecommunications Bureau (WTB) surmised that "it is reasonable to suspect that (implementation of enhanced features) might add to the possibility of malfunction. But the extent to which this is the case and will lead to increased liability risks and costs is less clear." The WTB affirmed its prior decisions not to immunize wireless carriers from liability for 911 calls or to establish federal guidelines creating uniform state liability limitations.

TWO BILLS Congress has taken preliminary steps to address this complex and contentious issue. The House of Representatives recently passed a bill, otherwise known as the Wireless Communications and Public Safety Act of 1999, which provides parity for wireless carriers in the provision of 911 service. Wireless carriers are accorded immunity or liability protection to the same extent as LECs in a particular jurisdiction. The bill also affords parity protection to users of wireless 911. Thus, users of wireless 911 services are granted the same level of protection as wireline users.

The Senate currently is considering its own version of the act, Senate Bill 800. There are two important differences between the House and Senate bills. In addition to providing parity for users and suppliers of wireless 911 service, the House version allows states, for two years, to enact laws that provide a different standard of liability protection in the development, installation and operation of wireless service but not wireless 911 service. The Senate version does not have this 2-year exception but does provide parity protection by public safety answering points (PSAPs), PSAP employees and authorizing government entities in operating wireless 911.

GOOD NEWS -- BAD NEWS The Senate and House bills present wireless carriers with a modern-day version of the "good news-bad news" joke. The good news is that either bill would afford wireless carriers the same protection afforded wireline carriers in each state. The bad news is that either bill only would afford wireless carriers the same protection afforded wireline carriers in each state. Because the bills presently before Congress fail to address the underlying problems that exist with state liability laws, parity is not an adequate remedy. For example, in the states that provide no liability protection for E-911 operations, parity leaves wireless carriers faced with potentially large judgments for acts or omissions in the provision of E-911 service even though the provision of E-911 is far more difficult technically than the provision of 911 service.

Unfortunately, the FCC clearly has signaled that it will not be the author of a uniform liability standard. On the other hand, both the Senate and the House have demonstrated an interest in E-911, and it is within their power to pass legislation that would provide a nationwide, uniform liability limitation for wireless carriers. Thus, it would appear that Capitol Hill would be the most appropriate forum in which to concentrate industry efforts. Efforts at the state level can be undertaken in tandem with Congressional lobbying. However, lobbying individual states would involve far more time and effort than lobbying at the federal level.