E-911 Rumble

The latest round of regulatory sparring over the roll out of E-911 services has wireless carriers seeking technology waivers for the FCC's E-911 Phase II (www.fcc.gov), and a public safety answering point (PSAP) seeking an FCC ruling that would mandate swifter compliance with requests for E-911 Phase II service. The bell has rung, and you almost can hear Michael Buffer intoning: “Let's get ready to rummmmmmble!”

Pre-Fight Instructions

The upcoming Phase II deadline is the second and most technologically demanding phase of the bifurcated roll out of E-911. In 1996 the FCC recognized that, at that time, technology did not exist that could provide detailed caller-location information. The FCC established April 1, 1998, as the date by which wireless carriers had to be E-911 Phase I capable and Oct. 1, 2001, as the date for Phase II compliance. Phase I required that wireless carriers provide the PSAP the telephone number of 911 callers and the location of the cell site or base station receiving the 911 call.

Under Phase II, the wireless carriers are expected to deploy network-based or handset technologies that provide automatic location identification (ALI) services capable of identifying the specific location of E-911 callers within prescribed accuracy parameters. Under the commission's rules, the carrier's Phase II E-911 obligations attach once a PSAP requests E-911 service from the carrier. After a valid request is made by the PSAP, the carrier must within six months or by Oct. 1, 2001, whichever is later, install hardware and/or software in its network necessary to provide the Phase II E-911 service and begin delivering Phase II E-911 service to the PSAP.

Unfortunately, it appears that Phase II may spawn as much pugilistic fervor as did Phase I. Just as spectators witnessed wireless carriers file Phase I waivers, and PSAPs and carriers argue over Phase I responsibilities, they now are witnessing eerily similar Phase II events.

Round 1: The VoiceStream Waiver

Round 1 of the E-911 bout began in February 1999, when VoiceStream Wireless (www.voicestream.com) requested the commission grant it a Phase II technology waiver. VoiceStream argued that a waiver was necessary for it to deploy a “hybrid” E-911 Phase II location-identification service that used upgrades to both network-based and handset technologies. However, this solution would not initially yield ALI information with the same degree of accuracy the commission requires on Oct. 1, 2001.

The Association of Public-Safety Communications Officials International (APCO), a consortium of public-safety communications organizations that includes several PSAPs (www.apcointl.org), parried by arguing that granting the VoiceStream waiver request would set a dangerous precedent, encouraging wireless carriers to pursue waivers rather than to endeavor to meet the commission's Phase II requirements. In September 2000, over APCO's continued objections, the commission granted the VoiceStream request for waiver. Down, but not knocked out, APCO came back with a petition for reconsideration, which is still before the FCC.

In the months that have followed, several carriers have filed technology-based waiver requests that contained extensions of time to deploy their E-911 Phase II: These carriers include Nextel Communications (www.nextel.com) Hawaiian Wireless, (www.hawaiian wireless.com), AT&T Wireless Services (www.attws.com) and Carolina PCS I (www.carolinaphone.com).

Round 2: Declaratory Ruling Request

Round 2 opened with the PSAPs taking the offensive. On April 5, 2001, the city of Richardson, TX (www.cor.net), requested that the commission mandate wireless carrier compliance with the commission's E-911 rules and sought clarification of exactly when carriers are obligated to begin providing Phase II services.

Specifically, in its filing, the city has requested that the commission state that a wireless carrier's obligation to provide Phase II E-911 services attaches the moment the PSAP makes a valid request for Phase II E-911 service. According to the city, a “valid request” is made when the PSAP requests E-911 service and informs the carrier that the necessary equipment upgrades for Phase II service will be finalized prior to the delivery of service, and adequate cost-recovery mechanisms are in place to bring the PSAP equipment to the level necessary to receive Phase II data. Thus, once a request is made, the carrier should be obligated to deliver Phase II service within six months of the request or Oct. 1, 2001, whichever is later.

VoiceStream apparently does not share this view. In a letter to the communications division of the Richardson Police Department in April 2000, James A. Nixon, VoiceStream senior manager of regulatory affairs, refused to establish a Phase II service-delivery deadline, stating that a valid request for Phase II service only can be made once the PSAP has deployed equipment that is capable of receiving and using the Phase II data. The city has countered with an assertion that the carrier's interpretation needlessly delays the roll out of these vital services to the public.

A review of the language the FCC used to describe carriers' obligations demonstrates that it is clear, concise and unequivocal: “The carrier's E-911 service obligation is triggered when the carrier receives a valid request from a PSAP that is capable of receiving and utilizing the data elements associated with the service, and a mechanism for recovering the PSAP's cost of the E-911 service is in place.” Rather than a “clarification” of the commission's expectations, it appears that the city is asking the FCC to redefine wireless carriers' Phase II responsibilities.

The FCC issued a public notice the same day giving the public until April 23, 2001, to file comments, indicating Phase II implementation is of significant concern.

New Referee to Declare TKO?

During Chairman William Kennard's tenure, the FCC imposed aggressive E-911 deadlines on carriers. Critics cited that the deadlines were imposed even though the technology and equipment did not exist to meet them. Given Chairman Michael Powell's documented deregulatory hands-off philosophy, wireless carriers may have been cautiously optimistic that Powell would acknowledge the technical constraints facing wireless carriers' deployment of E-911 services.

However, the speed at which the public notice concerning the city of Richardson was released may belie that optimism. It is possible that the Powell commission will include E-911 as one of its core programs upon which it will be pro-active. If that is the case, wireless carriers must convince the FCC that carriers want to provide Phase II but have their hands tied by technology. The wireless industry, public safety groups, the FCC and the public would be better served if the participants stopped slugging it out and sought less confrontational ways of resolving Phase II's thorny timing issues.

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Sill (wsill@wbklaw.com) is a partner and Ornelas (cornelas@wbklaw.com) an associate at Wilkinson Barker Knauer LLP.