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December 2006, Volume 9/ Number 12

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VoIP E911: A Year in Review

By William B. Wilhelm, Jr., Esq. and Jeffrey R. Strenkowski, Esq.


In June 2005, the FCC (News - Alert) issued an order requiring �interconnected� VoIP providers, by November 28, 2005, to offer enhanced 911 (E911) service, which includes the ability to send location and telephone number information automatically to 911 call centers. The order also required interconnected VoIP providers to submit reports detailing their compliance with that mandate. Some VoIP providers (mostly �fixed� VoIP providers like cable companies, where the service cannot be moved) had little trouble meeting the Commission�s VoIP E911 requirements, making E911 service quickly available. However, many other �nomadic� VoIP providers, which allow their customers to access the service from virtually any broadband Internet connection, faced serious difficulty in deploying their E911 solutions, with most unable to reach the Commission�s requirements by the November 2005 deadline.

These delays primarily arose from the limitations these providers have in geographically locating their nomadic customers, their restricted access to network 911 infrastructure, and the short time period provided by the Commission. Some of these providers filed waiver petitions seeking an extension of the Commission�s deadline. Others, led by Nuvio (News - Alert) Corporation, filed a lawsuit seeking judicial review of the Commission�s VoIP E911 Order and a reversal of the rules.

It has been one year since the Commission�s VoIP E911 deadline has passed. In that span, great progress has been made, although no nomadic VoIP provider (including services offered by the RBOCs) has complete nationwide E911/911 coverage. Nomadic VoIP providers are required by the FCC to limit selling and marketing their services to those regions of the country where VoIP E911/911 can be provided. Often, this limits the availability of many nomadic VoIP services to the more populous areas of the country.

Some providers have continued to update the Commission on the status of their E911 rollout efforts. Others have not. The FCC has not ruled on any of the waiver petitions, nor has it taken any enforcement action against those service providers that have not deployed a ubiquitous E911 solution.

On September 12, 2006, oral arguments were heard at the U.S. Court of Appeals D.C. Circuit on the VoIP providers� case against the FCC. Nuvio and its joint petitioners agreed that �the FCC in this case had a very beneficial goal, everyone agrees, of trying to increase public safety.� Nuvio challenged, however, �the means [the FCC] chose to accomplish it, and particularly the punitive nature of those means as applied to nomadic VoIP.� Specifically, Nuvio argued that the FCC �had no factual basis for its conclusion that 120 days was a reasonable if aggressive time period for implementing this capability for nomadic VoIP providers.� While the FCC could have offered a longer timeframe, or required VoIP E911 service be provided in a multi-staged approach, they did not do so. According to the Petitioners, �The rule, as written, is basically impossible to comply with.�

The FCC, on the other hand, argued that if a longer deadline had been set by the FCC, little progress would have been made on such an important public safety matter. The agency argued that VoIP providers had the tools in place to meet the Commission�s November 2005 deadline: �There is record evidence that the technology was there, the various components of the technology were available, and it was simply a matter of making the necessary arrangements, coordination, negotiation with various third parties to get this service rolled out.� The FCC also noted that a leading nomadic VoIP provider, had made significant progress reaching agreements to access the underlying 911 infrastructure with Qwest and Verizon (News - Alert), even before the Commission issued the VoIP E911 Order. The Petitioners countered that large providers� size and nationwide footprint may give them a distinct advantage over smaller providers in reaching such agreements. The Court also questioned the FCC�s assumption that it was reasonable for smaller carriers to reach nationwide VoIP E911 deployment, when even the largest had itself been unable to do so by the Commission�s deadline.

The Court also questioned whether it was appropriate for the FCC to implement �technology forcing� rules. The FCC responded that such an approach may be appropriate in cases involving public safety. �One of the Commission�s primary objectives under Section 1 of the Communication�s Act is promoting the safety of life and property by a wire and radio communications.� According to the FCC, the Commission previously engaged in something of a technology-forcing approach with regard to wireless 9-1-1, an approach the FCC noted that the wireless industry did not challenge.

When questioned by the Court, counsel for the FCC reiterated that there remains the possibility for enforcement action, or grant of the pending waiver applications, depending on individual VoIP provider circumstances: �The Commission staff is studying the compliance reports. It also has pending waiver petitions. It�s trying to make a determination as to whether or not to grant waivers in certain circumstances. So there is a possibility of liability, depending on the particular circumstances and whether or not companies were in compliance by the deadline.�

While the FCC�s enforcement (or grant of the pending waiver petitions) in this proceeding remain uncertain, a decision by the Court is expected by the end of the year. In the meanwhile, the FCC continues to consider broadening the scope of the E911 obligation to apply to VoIP services such as Skype�s one-way VoIP products. The FCC is also considering the submissions of Intrado (News - Alert), Andrew Corporation and others that assert that it may be feasible to use various technologies to automatically determine a VoIP customers� location rather than rely on the customer to manually update their location with their service provider. All of these developments, as well as public safety concerns, ensure that E911 will continue to remain an issue for VoIP providers well into 2007. IT

William B. Wilhelm is a partner and Jeffrey R. Strenkowski is an associate at the global law firm of Bingham McCutchen LLP. For more information, please visit them online at The preceding represents the views of the authors only and does not necessarily represent the views of Bingham McCutchen LLP or its clients. Bingham McCutchen represented the Petitioners in the case described above.

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