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Enterprise User Alert: FCC Imposes E911 Requirements on Certain VoIP Services

Introduction


On June 3, 2005, the Federal Communications Commission (“FCC”) released a First Report and Order and Notice of Proposed Rulemaking requiring “providers of interconnected VoIP services” to supply enhanced 911 (“E911”) capabilities as a mandatory feature of their VoIP service. The FCC acted after a series of widely reported incidents in which residential VoIP customers were unable to connect to 911 to obtain emergency assistance. Unfortunately for enterprise telecom users, the Order was somewhat ambiguous about defining what constitutes a “provider of interconnected VoIP service,” creating some confusion about whether enterprise users are subject to the newly adopted requirements.

Summary of E911/VoIP Order’s Requirements

The Order requires that providers of interconnected VoIP services:

· Advise their new and existing customers by July 29, 2005, about the circumstances under which E911 service is limited or unavailable through the interconnected VoIP service;

· Obtain by July 29, 2005, an affirmative acknowledgment from new and existing subscribers that they have been advised about their VoIP service’s E911 limitations and maintain a record of all such acknowledgements; and

· Provide E911 capabilities to their customers as a standard (i.e., not optional) feature of their VoIP service by November 28, 2005.

To satisfy the third bullet, the provider must be able to transmit a 911 call to the appropriate Public Safety Answering Point (“PSAP”) along with a call back number and caller location information (i.e., the caller’s “Registered Location”). The provider can accomplish this by interconnecting directly with the wireline 911 Network (which is usually managed by an ILEC); by connecting indirectly through a third party with 911 access (such as a CLEC); or through any other solution that allows the provider to offer the same E911 functions. The user’s Registered Location is either established by the customer at the time its service is established with the provider, or, for more mobile VoIP applications, through an interface that permits the customer to update the provider’s database at the time the customer initiates a VoIP session.

Do Enterprise Users/Private Switch Owners and Operators have to comply with the FCC’s Regulations?

Although the Order is ambiguous in many places, several aspects of the Order indicate that it applies only to commercial providers of VoIP, not corporate end users deploying VoIP for internal use on their private networks. In several sections, for example, the Order specifies that E911 functionalities must be provided to “customers” of VoIP services, suggesting that the FCC did not intend the regulations to apply to VoIP deployed for corporate self-use. Furthermore, the Order expressly states that the E911 requirements only apply to interconnected VoIP services; the rules do not apply to non-interconnected VoIP services or to the sale or use of IP-compatible CPE, such as an IP PBX, that itself uses other telecommunications or VoIP services to exchange traffic with the PSTN. Finally, the context in which this Order was adopted does not suggest that the FCC is targeting enterprise end-users for regulation: the FCC adopted the Order in response to the inability of residential consumers to place 911 calls using VoIP services that are marketed as substitutes for traditional residential phone service.

That said, the ambiguities in the FCC’s order have created sufficient concern to prompt several interested parties to seek formal clarification from the FCC regarding the scope of the VoIP E911 Order. Enterprise users should pay particular attention to a petition filed by COMPTEL, a trade association primarily representing new telecom competitors. COMPTEL asked the FCC to clarify that the notification and warning requirements in its VoIP/E911 order do not apply to interconnected VoIP providers offering non-nomadic T1 equivalent services to business customers. COMPTEL maintains that these VoIP services already include access to the existing E911 wireline system on an equivalent basis as traditional wireline T1 systems, with the same limitations on service (e.g., loss of E911 service if the underlying broadband facility or electric power fails). Therefore, according to COMPTEL, the FCC should clarify that it did not intend to impose additional burdensome regulations on IP services that are functionally equivalent to non-IP service. If the FCC agrees with COMPTEL and grants its request for a waiver, its analysis may clarify how the rules apply to VoIP applications on private corporate networks.



In addition, enterprise users should watch (and participate in) an entirely separate rulemaking dedicated to E911 where the FCC is considering adopting E911 requirements for the Multi-Line Telephone Systems (“MLTS”) commonly used by businesses. If adopted, the rules would apply to a broader set of services than simply VoIP. So far, the FCC has left the imposition of E911 regulations on MLTS to the various states, but its willingness to act on E911 issues in the VoIP context may prompt parties to seek similar action by the FCC in the MLTS context.

What Enterprise Users Should Consider Doing In the Meantime

In light of the uncertainty associated with the scope of the FCC’s VoIP E911 Order, enterprise users can take affirmative steps in their contract negotiations to mitigate the potential liability which could result if a particular VoIP configuration limits E911 services.

First, enterprise customers should include appropriate provisions in their contracts that require their service providers to comply with the FCC’s VoIP E911 Order to the extent that it is applicable to any services that the vendor may be providing. Although most contracts include a general “compliance with laws” provision, the ambiguity associated with the FCC’s Order makes it appropriate to shift responsibility for complying with the Order’s requirements explicitly to the vendor to eliminate doubt about who “owns” this obligation. On the flip side, end-users should reject any attempts by their vendors to shift liability or disclaim responsibility for compliance with the FCC’s Order when vendors are providing VoIP services.

Second, end-users should resist attempts by service providers to shift their cost of compliance with the Order’s obligations. VoIP service providers are claiming that compliance may cost them tens of millions of dollars. There is no requirement in the Order that these costs be passed on to end-users. To the extent that vendors include such costs as separate line items, enterprise customers should know that those costs are fully negotiable and attempt to eliminate them from their deals. Furthermore, end-users should ensure that their agreements provide stabilized rates so that vendors cannot use the FCC Order as an opportunity to raise agreed upon rates to pass on additional costs they incur to comply with the FCC’s Order.

Third, enterprises that are providing VoIP services to their employees, particularly at small office or home office locations, should take some fairly simple and common sense steps to notify their employees about potential E911 limitations. If you are issuing IP phone sets to your employees, you should provide: (i) a warning if the phone will not offer 911 emergency services in the same manner as a traditional telephone; and (ii) instructions for how to dial 911 successfully and/or the type of information that the caller should provide to the 911 dispatcher. You should consider including a clear and conspicuous warning on stickers that can be affixed directly to the phone. Enterprises deploying IP softphones on employee laptops should also consider including as part of their calling applications a pop-up display that provides the same warning described above before permitting the user to initiate an IP session. For applications used by nomadic employees, enterprises should also consider requiring the user to input his/her location information before initiating each IP session to prevent, for example, the New York-based employee from transmitting his/her “home” location information when he/she is actually located in and initiating a call from, say, Texas. 
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If you have any questions about the material contained in this notice, please contact Andrew Brown (abrown@lb3law.com) or Colleen Boothby (cboothby@lb3law.com) at (202) 857-2550.