[Federal Register: June 29, 2005 (Volume 70, Number 124)]
[Rules and Regulations]
[Page 37273-37288]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn05-10]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 9
[WC Docket No. 04-36; FCC 05-116]
E911 Requirements for IP-Enabled Services
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) adopts rules requiring providers of interconnected voice
over Internet Protocol (VoIP) service--meaning VoIP service that allows
a user generally to receive calls originating from and to terminate
calls to the public switched telephone network (PSTN)--to supply
enhanced 911 (E911) capabilities to all of their customers as a
standard feature of the service, rather than as an optional
enhancement. The rules further require interconnected VoIP service
providers to provide E911 from wherever the customer is using the
service, whether at home or away from home. These changes will enhance
public safety and ensure E911 access to emergency services for users of
interconnected VoIP services.
DATES: Effective Date: This rule is effective July 29, 2005, except for
Sec. 9.5, which contains information collection requirements that have
not been approved by the Office of Management and Budget (OMB). The
Commission will publish a document in the Federal Register announcing
the effective date.
Comment Date: Written comments by the public on the new and/or
modified information collection requirements are due August 29, 2005.
Compliance Date: Subject to OMB approval, compliance with the
customer notification requirements in Sec. 9.5(e) is required by July
29, 2005. Subject to OMB approval, the compliance letter required by
Sec. 9.5(f) must be submitted to the Commission no later than November
28, 2005. Subject to OMB approval, compliance with the requirements in
Sec. 9.5(b) through (d) is not required until November 28, 2005.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Christi Shewman, Attorney-Advisor,
Competition Policy Division, Wireline Competition Bureau, at (202) 418-
1686.
For additional information concerning the Paperwork Reduction Act
information collection requirements contained in this document, contact
Judith B. Herman at (202) 418-0214, or via the Internet at
Judith-B.Herman@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's First
Report and Order (Order) in WC Docket No. 04-36, FCC 05-116, adopted
May 19, 2005, and released June 3, 2005. The complete text of this
document is available for inspection and copying during normal business
hours in the FCC Reference Information Center, Portals II, 445 12th
Street, SW., Room CY-A257, Washington, DC, 20554. This document may
also be purchased from the Commission's duplicating contractor, Best
Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402,
Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893,
facsimile (202) 863-2898, or via e-mail at http://www.bcpiweb.com. It is also
available on the Commission's website at http://www.fcc.gov.
In addition to filing comments with the Office of the Secretary, a
copy of any comments on the Paperwork Reduction Act information
collection requirements contained herein should be submitted to Judith
B. Herman, Federal Communications Commission, Room 1-C804, 445 12th
Street, SW, Washington, DC 20554, or via the Internet to
Judith-B.Herman@fcc.gov.
Synopsis of the First Report and Order (Order)
1. Background. In the Notice of Proposed Rulemaking (NPRM) (69 FR
16193, March 29, 2004), we asked, among other things, about the
potential applicability of ``basic 911,'' ``enhanced 911,'' and related
critical infrastructure regulation to VoIP and other Internet Protocol
(IP)-enabled services. Specifically, after noting that the Commission
previously found in the E911 Scope Order (69 FR 6578, February 11,
2004) that it has statutory authority under sections 1, 4(i), and
251(e)(3) of the Communications Act of 1934, as amended (Act), to
determine what entities should be subject to the Commission's 911 and
E911 rules, the Commission sought comment on whether it should exercise
its regulatory authority in the context of IP-enabled services. The
Commission further sought comment on the appropriate criteria for
determining whether and to what extent IP-enabled services should fall
within the scope of its 911 and E911 regulatory framework, and whether
IP-enabled services are technically and
[[Page 37274]]
operationally capable of meeting the Commission's basic and/or E911
rules or of providing analogous functionalities that would meet the
intent of the 911 Act and the Commission's regulations.
2. Discussion. In this Order, we define ``interconnected VoIP
service'' and require providers of this type of VoIP service to
incorporate E911 service into all such offerings within the period of
time specified below. We commit ourselves to swift and vigorous
enforcement of the rules we adopt today. Because we have not decided
whether interconnected VoIP services are telecommunications services or
information services, we analyze the issues addressed in this Order
primarily under our Title I ancillary jurisdiction to encompass both
types of service. We decline to exempt providers of interconnected VoIP
services from liability under state law related to their E911 services.
3. Scope. Our first task is to determine what IP-enabled services
should be the focus of our concern. We begin by limiting our inquiry to
VoIP services, for which some type of 911 capability is most relevant.
The Commission previously has determined that customers today lack any
expectation that 911 will function for non-voice services like data
services. The record clearly indicates, however, that consumers expect
that VoIP services that are interconnected with the PSTN will function
in some ways like a ``regular telephone'' service. At least regarding
the ability to provide access to emergency services by dialing 911, we
find these expectations to be reasonable. If a VoIP service subscriber
is able to receive calls from other VoIP service users and from
telephones connected to the PSTN, and is able to place calls to other
VoIP service users and to telephones connected to the PSTN, a customer
reasonably could expect to be able to dial 911 using that service to
access appropriate emergency services. Thus, we believe that a service
that enables a customer to do everything (or nearly everything) the
customer could do using an analog telephone, and more, can at least
reasonably be expected and required to route 911 calls to the
appropriate destination.
4. The E911 rules the Commission adopts today apply to those VoIP
services that can be used to receive telephone calls that originate on
the PSTN and can be used to terminate calls to the PSTN--
``interconnected VoIP services.'' Although the Commission has not
adopted a formal definition of ``VoIP,'' we use the term generally to
include any IP-enabled services offering real-time, multidirectional
voice functionality, including, but not limited to, services that mimic
traditional telephony. Thus, an interconnected VoIP service is one we
define for purposes of the present Order as bearing the following
characteristics: (1) The service enables real-time, two-way voice
communications; (2) the service requires a broadband connection from
the user's location; (3) the service requires IP-compatible customer
premise equipment (CPE); and (4) the service offering permits users
generally to receive calls that originate on the PSTN and to terminate
calls to the PSTN. We make no findings today regarding whether a VoIP
service that is interconnected with the PSTN should be classified as a
telecommunications service or an information service under the Act.
5. While the rules we adopt today apply to providers of all
interconnected VoIP services, we recognize that certain VoIP services
pose significant E911 implementation challenges. For example, the
mobility enabled by a VoIP service that can be used from any broadband
connection creates challenges similar to those presented in the
wireless context. These ``portable'' VoIP service providers often have
no reliable way to discern from where their customers are accessing the
VoIP service. The Commission's past experience with setting national
rules for 911/E911 service is informative, and we expect that our
adoption today of E911 service obligations for providers of
interconnected VoIP service will speed the further creation and
adoption of such services, similar to the manner in which the
Commission's adoption of E911 service obligations in the wireless
context helped foster the widespread availability of E911 services for
mobile wireless users, where it formerly was not possible for wireless
carriers automatically to determine the precise geographic location of
their customers. We recognize and applaud the progress that has already
been made to ensure that VoIP customers have E911 services. We stress,
however, that should the need arise, we stand ready to expand the scope
or substance of the rules we adopt today if necessary to ensure that
the public interest is fully protected.
6. Authority. We conclude that we have authority under Title I of
the Act to impose E911 requirements on interconnected VoIP providers,
and commenters largely agree. In addition, we conclude that we have
authority to adopt these rules under our plenary numbering authority
pursuant to section 251(e) of the Act. We find that regardless of the
regulatory classification, the Commission has ancillary jurisdiction to
promote public safety by adopting E911 rules for interconnected VoIP
services. This Order, however, in no way prejudges how the Commission
might ultimately classify these services. To the extent that the
Commission later finds these services to be telecommunications
services, the Commission would have additional authority under Title II
to adopt these rules.
7. Ancillary jurisdiction may be employed, in the Commission's
discretion, when Title I of the Act gives the Commission subject matter
jurisdiction over the service to be regulated and the assertion of
jurisdiction is ``reasonably ancillary to the effective performance of
[its] various responsibilities.'' Both predicates for ancillary
jurisdiction are satisfied here.
8. First, based on sections 1 and 2(a) of the Act, coupled with the
definitions set forth in section 3(33) (``radio communication'') and
section 3(52) (``wire communication''), we find that interconnected
VoIP is covered by the Commission's general jurisdictional grant.
Specifically, section 1 states that the Commission is created ``[f]or
the purpose of regulating interstate and foreign commerce in
communication by wire and radio so as to make available, so far as
possible, to all the people of the United States * * * a rapid,
efficient, Nation-wide, and world-wide wire and radio communication
service with adequate facilities at reasonable charges,'' and that the
agency ``shall execute and enforce the provisions of th[e] Act.''
Section 2(a), in turn, confers on the Commission regulatory authority
over all interstate communication by wire or radio. In the NPRM, the
Commission adopted no formal definition of ``VoIP'' but used the term
generally to include ``any IP-enabled services offering real-time,
multidirectional voice functionality, including, but not limited to,
services that mimic traditional telephony.'' Recently, in the Vonage
Order, the Commission found that Vonage's DigitalVoice service--an
interconnected VoIP service--is subject to the Commission's interstate
jurisdiction. Consistent with that conclusion, we find that
interconnected VoIP services are covered by the statutory definitions
of ``wire communication'' and/or ``radio communication'' because they
involve ``transmission of [voice] by aid of wire, cable, or other like
connection * * *'' and/or ``transmission by radio * * *'' of voice.
Therefore, these services come within the scope of the Commission's
subject matter jurisdiction granted in section 2(a) of the Act.
[[Page 37275]]
9. Second, our analysis requires us to evaluate whether imposing a
E911 requirement is reasonably ancillary to the effective performance
of the Commission's various responsibilities. Based on the record in
this matter, we find that the requisite nexus exists. The Act charges
the Commission with responsibility for making available ``a rapid,
efficient, Nation-wide, and world-wide wire and radio communication
service * * * for the purpose of promoting safety of life and property
through the use of wire and radio communication.'' In light of this
statutory mandate, promoting an effective nationwide 911/E911 emergency
access system has become one of the Commission's primary public safety
responsibilities under the Act. As the Commission has recognized,
``[i]t is difficult to identify a nationwide wire or radio
communication service more immediately associated with promoting safety
of life and property than 911.'' Indeed, the Commission has previously
relied on Title I to satisfy both prongs of the standard for asserting
ancillary jurisdiction: (1) Subject matter jurisdiction; and (2) the
statutory goal furthered by the regulation. For example, in Rural
Telephone Coalition v. FCC, the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) upheld the Commission's
assertion of ancillary jurisdiction to establish a funding mechanism to
support universal service in the absence of specific statutory
authority as ancillary to its responsibilities under section 1 of the
Act to ``further the objective of making communications service
available to all Americans at reasonable charges.'' Thus, we conclude
that as more consumers begin to rely on interconnected VoIP services
for their communications needs, the action we take here ensures that
the Commission continues to ``further the achievement of long-
established regulatory goals'' to ``promot[e] safety of life and
property.''
10. Our actions today are consistent with, and a necessary
extension of, our prior exercises of authority to ensure public safety.
Since 1996, the Commission has acted to impose 911/E911 rules on
providers of new technologies. Since that time, the Commission has
affirmed and expanded on those efforts by exercising jurisdiction over
other services to impose 911/E911 requirements, relying primarily on
its Title I authority. That exercise of authority has been ratified,
not rebuked, by Congress.
11. Further, we note that our actions here are consistent with
other provisions of the Act. For example, we are guided by section 706,
which directs the Commission (and state commissions with jurisdiction
over telecommunications services) to encourage the deployment of
advanced telecommunications capability to all Americans by using
measures that ``promote competition in the local telecommunications
market'' and removing ``barriers to infrastructure investment.''
Internet-based services such as interconnected VoIP are commonly
accessed via broadband facilities (i.e., advanced telecommunications
capabilities under the 1996 Act). The uniform availability of E911
services may spur consumer demand for interconnected VoIP services, in
turn driving demand for broadband connections, and consequently
encouraging more broadband investment and deployment consistent with
the goals of section 706. Indeed, the Commission's most recent Fourth
Section 706 Report to Congress recognizes the nexus between VoIP
services and accomplishing the goals of section 706.
12. Moreover, as stated above, in recognition of the critical role
911/E911 services play in achieving the Act's goal of promoting safety
of life and property, Congress passed the 911 Act, which among other
things made 911 the universal emergency telephone number for both
wireline and wireless telephone service for the nation. In the 911 Act,
Congress made a number of findings regarding wireline and wireless 911
services, including that ``improved public safety remains an important
public health objective of Federal, State, and local governments and
substantially facilitates interstate and foreign commerce,'' and that
``emerging technologies can be a critical component of the end-to-end
communications infrastructure connecting the public with emergency
[services].'' Thus, we believe that our action here to impose E911
obligations on interconnected VoIP providers is consistent with
Congress' public safety policy objectives.
13. Finally, as an additional and separate source of authority for
the requirements we impose on providers of interconnected VoIP service
in this Order, we rely on the plenary numbering authority over U.S.
North American Numbering Plan (NANP) numbers Congress granted this
Commission in section 251(e) of the Act and, in particular, Congress'
direction to use its plenary numbering authority to designate 911 as
the universal emergency telephone number within the United States,
which ``shall apply to both wireline and wireless telephone service.''
We exercise our authority under section 251(e) of the Act because
interconnected VoIP providers use NANP numbers to provide their
services.
14. When the Commission initially implemented the 911 Act, it took
actions similar to those we take today under its numbering authority.
For instance, in the order implementing the 911 Act, the Commission
exercised federal jurisdiction over the establishment of the deadlines
by when all carriers had to provide 911 functionality, and adopted
various deadlines depending on such things as whether a local community
had established a public safety answering point (PSAP). The Commission
also required carriers to implement certain switching and routing
changes to their networks. Specifically, the Commission required all
carriers to ``implement a permissive dialing period, during which
emergency calls will be routed to the appropriate emergency response
point using either 911 or the seven-or ten-digit number.'' In order to
achieve this, carriers had to ``prepare and modify switches to
`translate' the three-digit 911 dialed emergency calls at the
appropriate network points to the seven-or ten-digit emergency number
in use by those PSAPs, and, subsequently, route the calls to them.''
The Commission also recognized that the transition to 911 in general
required more network changes than required by translation.
15. The Commission's authority to require network changes to
provide the E911 features that have long been central to the nation's
911 infrastructure is included within Congress' directive to the
Commission to require the establishment of 911 as a ``universal
emergency telephone number * * * for reporting an emergency to
appropriate authorities and requesting assistance.''
16. Requirements. In this Order, we adopt an immediate E911
solution that applies to all interconnected VoIP services. We find that
this requirement most appropriately discharges the Commission's
statutory obligation to promote an effective nationwide 911/E911
emergency access system by recognizing the needs of the public safety
community to get call back and location information and balancing those
needs against existing technological limitations of interconnected VoIP
providers. With regard to portable interconnected VoIP services,
however, we intend to adopt in a future order an advanced E911 solution
for interconnected VoIP that must include a method for determining a
user's location without assistance from
[[Page 37276]]
the user as well as firm implementation deadlines for that solution.
17. Enhanced 911 Service. We require that, within 120 days of the
effective date of this Order, an interconnected VoIP provider must
transmit all 911 calls, as well as a call back number and the caller's
``Registered Location'' for each call, to the PSAP, designated
statewide default answering point, or appropriate local emergency
authority that serves the caller's Registered Location and that has
been designated for telecommunications carriers under section 64.3001
of the Commission's rules. These calls must be routed through the use
of ANI and, if necessary, pseudo-ANI, via the dedicated Wireline E911
Network, and the Registered Location must be available from or through
the ALI Database. As explained infra, however, an interconnected VoIP
provider need only provide such call back and location information as a
PSAP, designated statewide default answering point, or appropriate
local emergency authority is capable of receiving and utilizing. While
120 days is an aggressively short amount of time in which to comply
with these requirements, the threat to public safety if we delay
further is too great and demands near immediate action.
18. Interconnected VoIP providers may satisfy this requirement by
interconnecting indirectly through a third party such as a competitive
local exchange carrier (LEC), interconnecting directly with the
Wireline E911 Network, or through any other solution that allows a
provider to offer E911 service as described above. As an example of the
first type of arrangement, Level 3 offers a wholesale product that
allows certain interconnected VoIP providers to provide E911 service to
their customers. 8x8, Inc. recently announced that it is utilizing
Level 3's service to provide E911 service to its Packet8 service
subscribers in 2,024 rate centers covering 43 U.S. states. Likewise,
Intrado has indicated that it is prepared to operate as a competitive
LEC in a number of states to provide indirect interconnection to
interconnected VoIP providers, and Pac-West Telecom is offering a
similar service in ``virtually 100%'' of the state of California. We
note that the Commission currently requires LECs to provide access to
911 databases and interconnection to 911 facilities to all
telecommunications carriers, pursuant to sections 251(a) and (c) and
section 271(c)(2)(B)(vii) of the Act. We expect that this would include
all the elements necessary for telecommunications carriers to provide
911/E911 solutions that are consistent with the requirements of this
Order, including NENA's I2 or wireless E911-like solutions.
19. At the same time, the record indicates that incumbent LECs are
increasingly offering E911 solutions that allow VoIP providers to
interconnect directly to the Wireline E911 Network through tariff,
contract, or a combination thereof. For example, Qwest has tariffed
E911 offerings that are currently available to VoIP providers and can
be coupled with third party service offerings to enable the provision
of E911 service to portable interconnected VoIP services, including
those that allow their end users to use non-native NPA-NXX numbers.
Verizon is developing an E911 solution for interconnected VoIP
providers that is comparable to the solution it offers for wireless
E911. Verizon has announced that it will offer this solution in New
York City beginning in summer 2005 and will roll it out in other
locations if the New York City model succeeds. BellSouth currently
offers tariffed services similar to those that Qwest uses to provide
its VoIP E911 solution and recently announced that it is offering
interconnected VoIP providers access to 911 facilities equivalent to
that which it offers commercial mobile radio service (CMRS) carriers.
SBC has offered to negotiate commercial agreements with VoIP providers
for direct connection to Selective Routers and ALI databases,
comparable to the E911 access that SBC provides to competitive LECs.
SBC further has established a new commercial offering that ``will
enable VoIP providers to offer customers who use their service at a
fixed location, such as their home'' full E911 service and has stated
that it is ``willing to develop a wireless-like VOIP 911 capability for
VOIP providers'' pending receipt of necessary technical information.
20. We are requiring that all interconnected VoIP 911 calls be
routed through the dedicated Wireline E911 Network because of the
importance of protecting consumers who have embraced this new
technology. We recognize that compliance with this obligation is
necessarily dependent on the ability of the interconnected VoIP
providers to have access to trunks and selective routers via
competitive LECs that have negotiated access with the incumbent LECs,
through direct connections to the incumbent LECs, or through third-
party providers. We expect and strongly encourage all parties involved
to work together to develop and deploy VoIP E911 solutions and we point
out that incumbent LECs, as common carriers, are subject to sections
201 and 202 of the Act. The Commission will closely monitor these
efforts within the industry and will not hesitate to take further
action should that be necessary.
21. By requiring that all 911 calls be routed via the dedicated
Wireline E911 Network, we are requiring interconnected VoIP service
providers to provide E911 service only in those areas where Selective
Routers are utilized. We expect that few VoIP 911 calls will be placed
in areas that are not interconnected with a dedicated Wireline E911
Network. We further note that nothing in this Order prevents
interconnected VoIP providers from entering into mutually acceptable
911 call termination arrangements with PSAPs that are not
interconnected with a dedicated Wireline E911 Network.
22. Service Level Obligation. For the purposes of these
requirements, the phrase ``all 911 calls'' is defined as ``any voice
communication initiated by an interconnected VoIP user dialing 911.''
We recognize that not all PSAPs will immediately be capable of
receiving and utilizing the call back number and Registered Location
information associated with the E911 requirements outlined above. By
way of example, NENA estimates that approximately 26.6 percent of all
PSAPs are not currently capable of receiving and utilizing wireless
E911 Phase I data. We therefore hold that the E911 requirements set
forth above shall be applicable when an interconnected VoIP provider
provides service to a Registered Location only to the extent that the
PSAP, designated statewide default answering point, or appropriate
local emergency authority designated to serve that Registered Location
is capable of receiving and utilizing the data, such as Automatic
Location Identification (ALI) or Automatic Numbering Information (ANI),
associated with those requirements. Even in those areas where the PSAP
is not capable of receiving or processing location or call back
information, however, we conclude that interconnected VoIP providers
must transmit all 911 calls to the appropriate PSAP via the Wireline
E911 Network. To be clear, this means that interconnected VoIP
providers are always required to transmit all 911 calls to the
appropriate PSAP, designated statewide default answering point, or
appropriate local emergency authority utilizing the Selective Router,
the trunk line(s) between the Selective Router and the PSAP, and such
other elements of the Wireline E911 Network as are necessary in those
areas where Selective Routers are utilized.
[[Page 37277]]
23. We further hold that the obligation to determine what type of
information, such as ALI or ANI, each PSAP is capable of receiving and
utilizing rests with the provider of interconnected VoIP services.
There is no limit to the number of entities that may engage in the
provision of interconnected VoIP services in a given geographic area.
It would be unreasonable to require PSAPs to attempt to inform every
provider of interconnected VoIP services when the PSAP is prepared to
receive and utilize the information associated with E911 service.
24. We decline at this time to adopt performance standards
regarding how much time may elapse after an end user updates the
Registered Location before the provider has taken such actions as are
necessary to provide that end user with the level of E911 service
specified in this Order.
25. We also require interconnected VoIP providers to take certain
additional steps to minimize the scope of the 911 issues associated
with their service and to facilitate their compliance with our new VoIP
E911 rules, as explained below. First, we require interconnected VoIP
providers to obtain, and facilitate updating of, customer location
information. Second, we preclude interconnected VoIP providers from
requiring subscribers to ``opt-in'' or allowing subscribers to ``opt-
out'' of 911 services and expect that VoIP providers will notify their
customers of the limitations of their 911 service offerings.
26. Registered Location Requirement. We recognize that it currently
is not always technologically feasible for providers of interconnected
VoIP services to automatically determine the location of their end
users without end users' active cooperation. We therefore require
providers of interconnected VoIP services to obtain location
information from their customers. Specifically, interconnected VoIP
providers must obtain from each customer, prior to the initiation of
service, the physical location at which the service will first be
utilized. Furthermore, providers of interconnected VoIP services that
can be utilized from more than one physical location must provide their
end users one or more methods of updating information regarding the
user's physical location. Although we decline to specify any particular
method, we require that any method utilized allow an end user to update
his or her Registered Location at will and in a timely manner,
including at least one option that requires use only of the CPE
necessary to access the interconnected VoIP service. We caution
interconnected VoIP providers against charging customers to update
their Registered Location, as this would discourage customers from
doing so and therefore undermine this solution. The most recent
location provided to an interconnected VoIP provider by a customer is
the ``Registered Location.'' Interconnected VoIP providers can comply
with this requirement directly or by utilizing the services of a third
party.
27. Customer Requirements. In light of the recent incidents
involving problems with 911 access from interconnected VoIP services,
it is clear that not all providers of interconnected VoIP are including
E911 as a standard feature of their services. We find that allowing
customers of interconnected VoIP providers to opt-in to or, for that
matter, opt-out of E911 service is fundamentally inconsistent with our
obligation to ``encourage and support efforts by States to deploy
comprehensive end-to-end emergency communications infrastructure and
programs.'' Thus, interconnected VoIP providers must, as a condition of
providing that service to a consumer, provide that consumer with E911
service as outlined in the requirements above.
28. Further, although many VoIP providers include explanations of
the limitations of their 911-like service (or lack thereof) in the
Frequently Asked Questions sections on their web sites or in their
terms of service, recent incidents make clear that consumers in many
cases may not understand that the reasonable expectations they have
developed with respect to the availability of 911/E911 service via
wireless and traditional wireline telephones may not be met when they
utilize interconnected VoIP services. In order to ensure that consumers
of interconnected VoIP services are aware of their interconnected VoIP
service's actual E911 capabilities, by the effective date of this
Order, we require that all providers of interconnected VoIP service
specifically advise every subscriber, both new and existing,
prominently and in plain language, the circumstances under which E911
service may not be available through the interconnected VoIP service or
may be in some way limited by comparison to traditional E911 service.
VoIP providers shall obtain and keep a record of affirmative
acknowledgement by every subscriber, both new and existing, of having
received and understood this advisory. In addition, in order to ensure
to the extent possible that the advisory is available to all potential
users of an interconnected VoIP service, interconnected VoIP service
providers shall distribute to all subscribers, both new and existing,
warning stickers or other appropriate labels warning subscribers if
E911 service may be limited or not available and instructing the
subscriber to place them on and/or near the CPE used in conjunction
with the interconnected VoIP service.
29. Additional customer education efforts may well be necessary for
users of portable interconnected VoIP, for whom E911 service requires
that they notify their service provider affirmatively of their
location. For example, customers of portable interconnected VoIP
services likely will need to be instructed on how to register their
locations with their providers, the need to update that information
promptly when they relocate, and how to confirm that the registration
is effective.
30. Compliance Letter. We require all interconnected VoIP providers
to submit a letter to the Federal Communications Commission detailing
their compliance with our rules no later than 120 days after the
effective date of this Order. The letter and all other filings related
to this Order should be filed with the Commission's Secretary in WC
Docket No. 05-196 on a going-forward basis.
31. Because of the vital public safety interests at stake in this
proceeding, we are committed to ensuring compliance with the rules we
adopt in this Order. Failure to comply with these rules cannot and will
not be tolerated, as noncompliance may have a direct effect on the
lives of those customers who choose to obtain service from the
interconnected VoIP providers covered by this Order. Interconnected
VoIP providers who do not comply fully with the requirements set forth
in this Order will be subject to swift enforcement action by the
Commission, including substantial proposed forfeitures and, in
appropriate cases, cease and desist orders and proceedings to revoke
any Commission licenses held by the interconnected VoIP provider.
32. 911 Funding. We believe that the requirements we establish
today will significantly expand and improve interconnected VoIP 911
service while substantially reducing the threat to 911 funding that
some VoIP services currently pose. First, we recognize that while some
state laws today may already require 911 funding contributions from
providers of interconnected VoIP, interconnected VoIP providers may not
be covered by existing state 911 funding mechanisms in other states.
But even in the latter circumstance, the record does not indicate that
states are receiving no 911
[[Page 37278]]
funding contributions from interconnected VoIP providers. On the
contrary, the record indicates that many interconnected VoIP providers
currently are contributing to state 911 funding mechanisms. In
addition, states have the option of collecting 911 charges from
wholesale providers with whom interconnected VoIP providers contract to
provide E911 service, rather than assessing those charges on the
interconnected VoIP providers directly. For example, we have explained
that interconnected VoIP providers often enlist a competitive LEC
partner in order to obtain interconnection to the Wireline E911
Network, and we believe that as a result of this Order, many more will
do so. In that situation, states may impose 911 funding obligations on
the competitive LEC partners of interconnected VoIP providers,
regardless of whether the VoIP providers themselves are under any
obligation to contribute. Similarly, states may be able to impose
funding obligations on systems service providers, such as incumbent
LECs, that provide direct interconnection to interconnected VoIP
providers. We believe that the ability to assess 911 funds on
interconnected VoIP providers indirectly should narrow any gap in 911
funding attributable to consumers switching to interconnected VoIP
service.
33. Second, the record indicates that the network components that
have been developed to make wireless E911 possible can also be used for
VoIP E911, which should make the implementation process simpler and far
less expensive than the initial upgrades necessary for wireless E911.
For that reason, we do not expect the rules we adopt today to impose
substantial implementation costs on PSAPs. In short, we believe that
the rules we adopt today will neither contribute to the diminishment of
911 funding nor require a substantial increase in 911 spending by state
and local jurisdictions.
34. Liability. We decline to exempt providers of interconnected
VoIP service from liability under state law related to their E911
services. Although the NPRM did not directly address the issue,
Intrado, among others, requests that the Commission insulate these VoIP
providers from liability to the same extent that Congress insulated
wireless carriers from liability related to the provision of 911/E911
service in the wireless context. In the 911 Act, Congress gave wireless
carriers providing 911 service liability protection equal to that
available to wireline carriers for 911 calls. Congress has enacted no
similar protection for providers of interconnected VoIP service. As the
Commission has said in an analogous context, before we would consider
taking any action to preempt liability under state law, the Commission
would need to demonstrate that limiting liability is essential to
achieving the goals of the Act.
35. No commenter has identified a source of authority for the
Commission to limit liability in this way. Limiting liability related
to the use or provision of E911 services is not necessary to the
creation or use of E911 services, and we are not persuaded that absent
the liability protection sought by Intrado and others, interconnected
VoIP providers will be unwilling or unable to provide E911 services.
Rather, the record shows that some interconnected VoIP providers have
already begun deploying E911 services. In addition, to the extent
individual interconnected VoIP providers believe they need this type of
liability protection, they may seek to protect themselves from
liability for negligence through their customer contracts and through
their agreements with PSAPs, as some interconnected VoIP providers have
done.
Final Paperwork Reduction Act Analysis
36. This document contains new information collection requirements.
The Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public to comment on the information
collection requirements contained in this Report and Order as required
by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and
agency comments are due August 29, 2005.
Final Regulatory Flexibility Analysis
37. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the NPRM. The Commission sought written public comment
on the proposals in the NPRM, including comment on the IRFA. We
received comments specifically directed toward the IRFA from three
commenters. These comments are discussed below. This Final Regulatory
Flexibility Analysis (FRFA) conforms to the RFA.
1. Need for, and Objectives of, the Rules
38. The Order establishes rules requiring providers of
interconnected VoIP--meaning VoIP service that allows a user generally
to receive calls originating from and to terminate calls to the PSTN--
to provide E911 capabilities to their customers as a standard feature
of service. The Order requires providers of interconnected VoIP service
to provide E911 service no matter where the customer is using the
service, whether at home or away.
39. The Order is in many ways a necessary and logical follow-up to
the Vonage Order issued late last year. In that order, the Commission
determined that Vonage's DigitalVoice service--an interconnected VoIP
service--cannot be separated into interstate and intrastate
communications and that this Commission has the responsibility and
obligation to decide whether certain regulations apply to DigitalVoice
and other IP-enabled services having similar capabilities. The Vonage
Order also made clear that questions regarding what regulatory
obligations apply to providers of such services would be addressed in
the pending IP-Enabled Services proceeding. In accord with that
statement, the Order takes critical steps to advance the goal of public
safety by imposing E911 obligations on certain VoIP providers.
2. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
40. In this section, we respond to comments filed in response to
the IRFA. A more detailed FRFA is contained in the Order. In addition,
to the extent we received comments raising general small business
concerns during this proceeding, those comments are discussed
throughout the Order.
41. We disagree with SBA and Menard that the Commission should
postpone acting in this proceeding--thereby postponing imposing E911
obligations on interconnected VoIP service providers--and instead
should reevaluate the economic impact and the compliance burdens on
small entities and issue a further notice of proposed rulemaking in
conjunction with a supplemental IRFA identifying and analyzing the
economic impacts on small entities and less burdensome alternatives. We
believe the additional steps suggested by SBA and Menard are
unnecessary because, as described below, small entities already have
received sufficient notice of the issues addressed in the Order and
because the Commission, as requested by the VON Coalition, has
considered the economic impact on small entities and what ways are
feasible to minimize the burdens imposed on those entities, and, to the
extent feasible, has implemented those less burdensome alternatives.
42. The NPRM specifically sought comment on what 911/E911
obligations should apply in the context of IP-enabled services, and
discussed the criteria the Commission previously has
[[Page 37279]]
used to determine the scope of its existing 911/E911 rules. While the
NPRM did not specify particular rules the Commission might adopt--and
the IRFA therefore did not catalogue the effects that such particular
rules might have on small businesses--the Commission provided notice to
parties regarding the range of policy outcomes that might result from
the Order. A summary of the NPRM was published in the Federal Register
(69 FR 16193, March 29, 2004) and we believe that such publication
constitutes appropriate notice to small businesses subject to this
Commission's regulation.
43. Moreover, we note that we have attempted to balance the
economic interests of small businesses with the public's great interest
in access to E911 services when using interconnected VoIP services. The
Order discusses how E911 service is critical to our nation's ability to
respond to a host of crises and that the public has come to rely on the
life-saving benefits of such services in emergency situations. While
the Commission sought comment on, and considered, ways that the public
safety could be protected through access to E911 services that are less
burdensome to small businesses than the imposition of E911 obligations,
the Commission concluded that it was important for all interconnected
VoIP service providers to participate in protecting the public safety.
As SBA notes, many VoIP providers are likely to be small businesses.
SBA claims that ``[t]hese small providers are developing a nascent
technology and are especially vulnerable to disproportionate regulatory
costs.'' Nevertheless, as discussed in the Order, we believe it is
reasonable to expect any business electing to interconnect with the
PSTN to the extent required to provide interconnected VoIP service also
to provide E911 service in order to protect the public interest. Small
businesses may still offer VoIP service without being subject to the
rules adopted in the Order by electing not to provide an interconnected
VoIP service. We therefore have provided alternatives for small
entities.
44. We disagree with Menard's contention that the Commission did
not meet its obligations under the RFA because it failed to list as a
significant alternative to the proposed rulemaking imposing economic
regulation on the underlying facilities of cable carriers. The rules we
adopted in the Order apply to cable operators that provide
interconnected VoIP service. Moreover, we reject the above contention
as insufficient to achieve our goal of ensuring that users of
interconnected VoIP service have access to E911, as well as rejecting
it for the reasons already provided generally. As discussed in the
Order, there currently is no way for portable VoIP providers reliably
and automatically to provide location information to PSAPs without the
customer's active cooperation. Not only is the provider of an
interconnected VoIP service the entity actively involved in routing the
calls of users of interconnected VoIP service, but it is the entity
that has the relationship with the customer who currently plays an
essential role in providing accurate location information; hence, it is
reasonable to impose E911 rules on that interconnected VoIP service
provider. In addition, although the Commission determined that it was
necessary to impose E911 obligations on all providers of interconnected
VoIP service in order to ensure the ubiquitous availability of E911
service for users of interconnected VoIP service, the Commission
minimized the burdens of this regulation by, for example, by requiring
straightforward reporting requirements and by setting reasonable
timetables for implementation of the rules adopted in the Order. The
Commission minimized the burdens of this regulation by not mandating
any particular technical solution; interconnected VoIP providers may
connect directly to the Wireline E911 Network, connect indirectly
through a third party, such as a competitive local exchange carrier, or
through any other solution that allows a provider to offer E911
service.
45. We also disagree with Menard's contention that the Commission
inappropriately failed to ``weigh the impact on non-affiliated regional
Internet Service Providers of the consequence for the removal of all
forms of economic regulation for broadband services provided by
incumbent carriers.'' The Order does not remove ``all forms of economic
regulation for broadband services provided by incumbent carriers,'' and
would be an inappropriate forum for reconsideration of any such
decision the Commission has made in other proceedings. The Commission
reached its decision in the Order in full awareness and consideration
of the Commission's other rules and to that extent satisfied Menard's
request and SBA's request to consider how the requirements imposed in
the Order overlap with other requirements imposed on small entities.
46. Finally, we reject claims that the present proceeding is not
the appropriate docket in which to address what E911 obligations should
be imposed on providers of interconnected VoIP service. The Commission
provided proper notice that these issues would be addressed in this
proceeding, and in the Vonage Order made clear that questions regarding
what regulatory obligations apply to providers of a type of
interconnected VoIP service would be addressed in this proceeding.
Therefore, we do not accede to the preferences of some small businesses
that the Commission resolve various other proceedings, including
proceedings involving E911 requirements, prior to addressing issues in
the IP-Enabled Services docket. We reject Menard's claim that the
Commission is using the present rulemaking as a way of by-passing its
statutory obligations under section 10 of the Telecommunications Act of
1996 (section 10) because that statutory section is not applicable to
the present situation. Section 10 sets forth the Commission's
obligation to forbear from existing regulation to a telecommunications
carrier or a telecommunications service, or class of telecommunications
carriers or telecommunications services, if certain criteria are
satisfied. Prior to the Order, the Commission had not imposed E911
obligations on interconnected VoIP service providers. In addition, the
Commission to date has not classified interconnected VoIP service as a
telecommunications service.
3. Description and Estimate of the Number of Small Entities To Which
Rules Will Apply
47. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules. The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) Is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).
48. Small Businesses. Nationwide, there are a total of
approximately 22.4 million small businesses, according to SBA data.
49. Small Organizations. Nationwide, there are approximately 1.6
million small organizations.
50. Small Governmental Jurisdictions. The term ``small governmental
jurisdiction'' is defined as ``governments of cities, towns, townships,
villages,
[[Page 37280]]
school districts, or special districts, with a population of less than
fifty thousand.'' As of 1997, there were approximately 87,453
governmental jurisdictions in the United States. This number includes
39,044 county governments, municipalities, and townships, of which
37,546 (approximately 96.2%) have populations of fewer than 50,000, and
of which 1,498 have populations of 50,000 or more. Thus, we estimate
the number of small governmental jurisdictions overall to be 84,098 or
fewer.
a. Telecommunications Service Entities
51. Wireline Carriers and Service Providers. We have included small
incumbent local exchange carriers in this present RFA analysis. As
noted above, a ``small business'' under the RFA is one that, inter
alia, meets the pertinent small business size standard (e.g., a
telephone communications business having 1,500 or fewer employees), and
``is not dominant in its field of operation.'' The SBA's Office of
Advocacy contends that, for RFA purposes, small incumbent local
exchange carriers are not dominant in their field of operation because
any such dominance is not ``national'' in scope. We have therefore
included small incumbent local exchange carriers in this RFA analysis,
although we emphasize that this RFA action has no effect on Commission
analyses and determinations in other, non-RFA contexts.
52. Incumbent Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a small business size standard
specifically for incumbent local exchange services. The appropriate
size standard under SBA rules is for the category Wired
Telecommunications Carriers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. The Commission estimates
that most providers of incumbent local exchange service are small
businesses that may be affected by our action.
53. Competitive Local Exchange Carriers (CLECs), Competitive Access
Providers (CAPs), ``Shared-Tenant Service Providers,'' and ``Other
Local Service Providers.'' Neither the Commission nor the SBA has
developed a small business size standard specifically for these service
providers. The appropriate size standard under SBA rules is for the
category Wired Telecommunications Carriers. Under that size standard,
such a business is small if it has 1,500 or fewer employees. The
Commission estimates that most providers of competitive local exchange
service, competitive access providers, ``Shared-Tenant Service
Providers,'' and ``Other Local Service Providers'' are small entities
that may be affected by our action.
54. Local Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. The Commission estimates that the majority of local
resellers are small entities that may be affected by our action.
55. Toll Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. The Commission estimates that the majority of toll resellers
are small entities that may be affected by our action.
56. Payphone Service Providers (PSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
payphone services providers. The appropriate size standard under SBA
rules is for the category Wired Telecommunications Carriers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. The Commission estimates that the majority of payphone
service providers are small entities that may be affected by our
action.
57. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA has developed a small business size standard specifically for
providers of interexchange services. The appropriate size standard
under SBA rules is for the category Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has 1,500 or
fewer employees. The Commission estimates that the majority of IXCs are
small entities that may be affected by our action.
58. Operator Service Providers (OSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
operator service providers. The appropriate size standard under SBA
rules is for the category Wired Telecommunications Carriers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. The Commission estimates that the majority of OSPs are small
entities that may be affected by our action.
59. Prepaid Calling Card Providers. Neither the Commission nor the
SBA has developed a small business size standard specifically for
prepaid calling card providers. The appropriate size standard under SBA
rules is for the category Telecommunications Resellers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
The Commission estimates that all or the majority of prepaid calling
card providers are small entities that may be affected by our action.
60. 800 and 800-Like Service Subscribers. Neither the Commission
nor the SBA has developed a small business size standard specifically
for 800 and 800-like service (``toll free'') subscribers. The
appropriate size standard under SBA rules is for the category
Telecommunications Resellers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. We estimate that there are
7,692,955 or fewer small entity 800 subscribers; 7,706,393 or fewer
small entity 888 subscribers; and 1,946,538 or fewer small entity 877
subscribers.
61. International Service Providers. The Commission has not
developed a small business size standard specifically for providers of
international service. The appropriate size standards under SBA rules
are for the two broad categories of Satellite Telecommunications and
Other Telecommunications. Under both categories, such a business is
small if it has $12.5 million or less in average annual receipts. The
majority of Satellite Telecommunications firms can be considered small.
62. The second category--Other Telecommunications--includes
``establishments primarily engaged in * * * providing satellite
terminal stations and associated facilities operationally connected
with one or more terrestrial communications systems and capable of
transmitting telecommunications to or receiving telecommunications from
satellite systems.'' Under this second size standard, the majority of
firms can be considered small.
63. Wireless Telecommunications Service Providers. Below, for those
services subject to auctions, we note that, as a general matter, the
number of winning bidders that qualify as small businesses at the close
of an auction does not necessarily represent the number of small
businesses currently in service. Also, the Commission does not
generally track subsequent business size unless, in the context of
assignments or transfers, unjust enrichment issues are implicated.
64. Wireless Service Providers. The SBA has developed a small
business size standard for wireless firms within the two broad economic
census categories of ``Paging'' and ``Cellular and Other Wireless
Telecommunications.'' Under both SBA categories, a wireless
[[Page 37281]]
business is small if it has 1,500 or fewer employees. Under both
categories and associated small business size standards, the majority
of firms can be considered small.
65. Cellular Licensees. The SBA has developed a small business size
standard for wireless firms within the broad economic census category
``Cellular and Other Wireless Telecommunications.'' Under this SBA
category, a wireless business is small if it has 1,500 or fewer
employees. Under this category and size standard, the great majority of
firms can be considered small. We have estimated that 245 of the
entities engaged in the provision of cellular service, Personal
Communications Service (PCS), or Specialized Mobile Radio (SMR)
Telephony services are small under the SBA small business size
standard.
66. Common Carrier Paging. The SBA has developed a small business
size standard for wireless firms within the broad economic census
category, ``Cellular and Other Wireless Telecommunications.'' Under
this SBA category, a wireless business is small if it has 1,500 or
fewer employees. Under this category and associated small business size
standard, the majority of firms can be considered small. In the Paging
Third Report and Order, we developed a small business size standard for
``small businesses'' and ``very small businesses'' for purposes of
determining their eligibility for special provisions such as bidding
credits and installment payments. A ``small business'' is an entity
that, together with its affiliates and controlling principals, has
average gross revenues not exceeding $15 million for the preceding
three years. Additionally, a ``very small business'' is an entity that,
together with its affiliates and controlling principals, has average
gross revenues that are not more than $3 million for the preceding
three years. The SBA has approved these small business size standards.
An auction of Metropolitan Economic Area licenses commenced on February
24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned,
440 were sold. Fifty-seven companies claiming small business status
won. Also, according to Commission data, 346 carriers reported that
they were engaged in the provision of paging and messaging services. Of
those, we estimate that 341 are small, under the SBA-approved small
business size standard.
67. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses. The Commission established small business size standards for the
wireless communications services (WCS) auction. A ``small business'' is
an entity with average gross revenues of $40 million for each of the
three preceding years, and a ``very small business'' is an entity with
average gross revenues of $15 million for each of the three preceding
years. The SBA has approved these small business size standards. The
Commission auctioned geographic area licenses in the WCS service. In
the auction, there were seven winning bidders that qualified as ``very
small business'' entities, and one that qualified as a ``small
business'' entity.
68. Wireless Telephony. Wireless telephony includes cellular,
personal communications services (PCS), and specialized mobile radio
(SMR) telephony carriers. As noted earlier, the SBA has developed a
small business size standard for ``Cellular and Other Wireless
Telecommunications'' services. Under that SBA small business size
standard, a business is small if it has 1,500 or fewer employees. We
have estimated that 245 of the carriers who reported to us that they
were engaged in the provision of wireless telephony are small under the
SBA small business size standard.
69. Broadband Personal Communications Service. The broadband
Personal Communications Service (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission defined ``small entity'' for
Blocks C and F as an entity that has average gross revenues of $40
million or less in the three previous calendar years. For Block F, an
additional classification for ``very small business'' was added and is
defined as ``an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding three
calendar years.'' These standards defining ``small entity'' in the
context of broadband PCS auctions have been approved by the SBA. No
small businesses, within the SBA-approved small business size standards
bid successfully for licenses in Blocks A and B. There were 90 winning
bidders that qualified as small entities in the Block C auctions. A
total of 93 small and very small business bidders won approximately 40
percent of the 1,479 licenses for Blocks D, E, and F. On March 23,
1999, the Commission re-auctioned 347 C, D, E, and F Block licenses.
There were 48 small business winning bidders. On January 26, 2001, the
Commission completed the auction of 422 C and F Broadband PCS licenses
in Auction No. 35. Of the 35 winning bidders in this auction, 29
qualified as ``small'' or ``very small'' businesses. Subsequent events,
concerning Auction 35, including judicial and agency determinations,
resulted in a total of 163 C and F Block licenses being available for
grant.
70. Narrowband Personal Communications Services. To date, two
auctions of narrowband personal communications services (PCS) licenses
have been conducted. For purposes of the two auctions that have already
been held, ``small businesses'' were entities with average gross
revenues for the prior three calendar years of $40 million or less.
Through these auctions, the Commission has awarded a total of 41
licenses, out of which 11 were obtained by small businesses. To ensure
meaningful participation of small business entities in future auctions,
the Commission has adopted a two-tiered small business size standard in
the Narrowband PCS Second Report and Order. A ``small business'' is an
entity that, together with affiliates and controlling interests, has
average gross revenues for the three preceding years of not more than
$40 million. A ``very small business'' is an entity that, together with
affiliates and controlling interests, has average gross revenues for
the three preceding years of not more than $15 million. The SBA has
approved these small business size standards. In the future, the
Commission will auction 459 licenses to serve Metropolitan Trading
Areas (MTAs) and 408 response channel licenses. There is also one
megahertz of narrowband PCS spectrum that has been held in reserve and
that the Commission has not yet decided to release for licensing. The
Commission cannot predict accurately the number of licenses that will
be awarded to small entities in future auctions. However, four of the
16 winning bidders in the two previous narrowband PCS auctions were
small businesses, as that term was defined. The Commission assumes, for
purposes of this analysis, that a large portion of the remaining
narrowband PCS licenses will be awarded to small entities. The
Commission also assumes that at least some small businesses will
acquire narrowband PCS licenses by means of the Commission's
partitioning and disaggregation rules.
71. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. Phase I licensing was conducted
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz band. The Commission has not
[[Page 37282]]
developed a small business size standard for small entities
specifically applicable to such incumbent 220 MHz Phase I licensees. To
estimate the number of such licensees that are small businesses, we
apply the small business size standard under the SBA rules applicable
to ``Cellular and Other Wireless Telecommunications'' companies. This
category provides that a small business is a wireless company employing
no more than 1,500 persons. Under this second category and size
standard, the majority of firms can be considered small. Assuming this
general ratio continues in the context of Phase I 220 MHz licensees,
the Commission estimates that nearly all such licensees are small
businesses under the SBA's small business size standard.
72. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service
has both Phase I and Phase II licenses. The Phase II 220 MHz service is
a new service, and is subject to spectrum auctions. In the 220 MHz
Third Report and Order, we adopted a small business size standard for
``small'' and ``very small'' businesses for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments. This small business size standard indicates that
a ``small business'' is an entity that, together with its affiliates
and controlling principals, has average gross revenues not exceeding
$15 million for the preceding three years. A ``very small business'' is
an entity that, together with its affiliates and controlling
principals, has average gross revenues that do not exceed $3 million
for the preceding three years. The SBA has approved these small
business size standards. Auctions of Phase II licenses commenced on
September 15, 1998, and closed on October 22, 1998. In the first
auction, 908 licenses were auctioned in three different-sized
geographic areas: three nationwide licenses, 30 Regional Economic Area
Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908
licenses auctioned, 693 were sold. Thirty-nine small businesses won
licenses in the first 220 MHz auction. The second auction included 225
licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies
claiming small business status won 158 licenses.
73. 800 MHz and 900 MHz Specialized Mobile Radio Licenses. The
Commission awards ``small entity'' and ``very small entity'' bidding
credits in auctions for Specialized Mobile Radio (SMR) geographic area
licenses in the 800 MHz and 900 MHz bands to firms that had revenues of
no more than $15 million in each of the three previous calendar years,
or that had revenues of no more than $3 million in each of the previous
calendar years, respectively. These bidding credits apply to SMR
providers in the 800 MHz and 900 MHz bands that either hold geographic
area licenses or have obtained extended implementation authorizations.
The Commission does not know how many firms provide 800 MHz or 900 MHz
geographic area SMR service pursuant to extended implementation
authorizations, nor how many of these providers have annual revenues of
no more than $15 million. One firm has over $15 million in revenues.
The Commission assumes, for purposes here, that all of the remaining
existing extended implementation authorizations are held by small
entities, as that term is defined by the SBA. The Commission has held
auctions for geographic area licenses in the 800 MHz and 900 MHz SMR
bands. There were 60 winning bidders that qualified as small or very
small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won
in the 900 MHz auction, bidders qualifying as small or very small
entities won 263 licenses. In the 800 MHz auction, 38 of the 524
licenses won were won by small and very small entities.
74. 700 MHz Guard Band Licensees. In the 700 MHz Guard Band Order,
we adopted a small business size standard for ``small businesses'' and
``very small businesses'' for purposes of determining their eligibility
for special provisions such as bidding credits and installment
payments. A ``small business'' as an entity that, together with its
affiliates and controlling principals, has average gross revenues not
exceeding $15 million for the preceding three years. Additionally, a
``very small business'' is an entity that, together with its affiliates
and controlling principals, has average gross revenues that are not
more than $3 million for the preceding three years. An auction of 52
Major Economic Area (MEA) licenses commenced on September 6, 2000, and
closed on September 21, 2000. Of the 104 licenses auctioned, 96
licenses were sold to nine bidders. Five of these bidders were small
businesses that won a total of 26 licenses. A second auction of 700 MHz
Guard Band licenses commenced on February 13, 2001 and closed on
February 21, 2001. All eight of the licenses auctioned were sold to
three bidders. One of these bidders was a small business that won a
total of two licenses.
75. Rural Radiotelephone Service. The Commission has not adopted a
size standard for small businesses specific to the Rural Radiotelephone
Service. A significant subset of the Rural Radiotelephone Service is
the Basic Exchange Telephone Radio System (BETRS). The Commission uses
the SBA's small business size standard applicable to ``Cellular and
Other Wireless Telecommunications,'' i.e., an entity employing no more
than 1,500 persons. There are approximately 1,000 licensees in the
Rural Radiotelephone Service, and the Commission estimates that there
are 1,000 or fewer small entity licensees in the Rural Radiotelephone
Service that may be affected by the rules and policies adopted herein.
76. Air-Ground Radiotelephone Service. The Commission has not
adopted a small business size standard specific to the Air-Ground
Radiotelephone Service. We will use SBA's small business size standard
applicable to ``Cellular and Other Wireless Telecommunications,'' i.e.,
an entity employing no more than 1,500 persons. There are approximately
100 licensees in the Air-Ground Radiotelephone Service, and we estimate
that almost all of them qualify as small under the SBA small business
size standard.
77. Aviation and Marine Radio Services. Small businesses in the
aviation and marine radio services use a very high frequency (VHF)
marine or aircraft radio and, as appropriate, an emergency position-
indicating radio beacon (and/or radar) or an emergency locator
transmitter. The Commission has not developed a small business size
standard specifically applicable to these small businesses. For
purposes of this analysis, the Commission uses the SBA small business
size standard for the category ``Cellular and Other
Telecommunications,'' which is 1,500 or fewer employees. Most
applicants for recreational licenses are individuals. Approximately
581,000 ship station licensees and 131,000 aircraft station licensees
operate domestically and are not subject to the radio carriage
requirements of any statute or treaty. For purposes of our evaluations
in this analysis, we estimate that there are up to approximately
712,000 licensees that are small businesses (or individuals) under the
SBA standard. In addition, between December 3, 1998 and December 14,
1998, the Commission held an auction of 42 VHF Public Coast licenses in
the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz
(coast transmit) bands. For purposes of the auction, the Commission
defined a ``small'' business as an entity that, together with
controlling interests and affiliates, has average gross revenues for
the preceding three years not to exceed $15 million dollars. In
addition, a ``very small''
[[Page 37283]]
business is one that, together with controlling interests and
affiliates, has average gross revenues for the preceding three years
not to exceed $3 million dollars. There are approximately 10,672
licensees in the Marine Coast Service, and the Commission estimates
that almost all of them qualify as ``small'' businesses under the above
special small business size standards.
78. Fixed Microwave Services. Fixed microwave services include
common carrier, private operational-fixed, and broadcast auxiliary
radio services. At present, there are approximately 22,015 common
carrier fixed licensees and 61,670 private operational-fixed licensees
and broadcast auxiliary radio licensees in the microwave services. The
Commission has not created a size standard for a small business
specifically with respect to fixed microwave services. For purposes of
this analysis, the Commission uses the SBA small business size standard
for the category ``Cellular and Other Telecommunications,'' which is
1,500 or fewer employees. The Commission does not have data specifying
the number of these licensees that have more than 1,500 employees, and
thus is unable at this time to estimate with greater precision the
number of fixed microwave service licensees that would qualify as small
business concerns under the SBA's small business size standard.
Consequently, the Commission estimates that there are up to 22,015
common carrier fixed licensees and up to 61,670 private operational-
fixed licensees and broadcast auxiliary radio licensees in the
microwave services that may be small and may be affected by the rules
and policies adopted herein. We noted, however, that the common carrier
microwave fixed licensee category includes some large entities.
79. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico. There are presently approximately 55 licensees in this
service. We are unable to estimate at this time the number of licensees
that would qualify as small under the SBA's small business size
standard for ``Cellular and Other Wireless Telecommunications''
services. Under that SBA small business size standard, a business is
small if it has 1,500 or fewer employees.
80. 39 GHz Service. The Commission created a special small business
size standard for 39 GHz licenses--an entity that has average gross
revenues of $40 million or less in the three previous calendar years.
An additional size standard for ``very small business'' is: an entity
that, together with affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years. The SBA has
approved these small business size standards. The auction of the 2,173
39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The
18 bidders who claimed small business status won 849 licenses.
Consequently, the Commission estimates that 18 or fewer 39 GHz
licensees are small entities that may be affected by the rules and
polices adopted herein.
81. Multipoint Distribution Service, Multichannel Multipoint
Distribution Service, and ITFS. Multichannel Multipoint Distribution
Service (MMDS) systems, often referred to as ``wireless cable,''
transmit video programming to subscribers using the microwave
frequencies of the Multipoint Distribution Service (MDS) and
Instructional Television Fixed Service (ITFS). In connection with the
1996 MDS auction, the Commission established a small business size
standard as an entity that had annual average gross revenues of less
than $40 million in the previous three calendar years. The MDS auctions
resulted in 67 successful bidders obtaining licensing opportunities for
493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the
definition of a small business. MDS also includes licensees of stations
authorized prior to the auction. In addition, the SBA has developed a
small business size standard for Cable and Other Program Distribution,
which includes all such companies generating $12.5 million or less in
annual receipts. According to Census Bureau data for 1997, there were a
total of 1,311 firms in this category, total, that had operated for the
entire year. Of this total, 1,180 firms had annual receipts of under
$10 million and an additional 52 firms had receipts of $10 million or
more but less than $25 million. Consequently, we estimate that the
majority of providers in this service category are small businesses
that may be affected by the rules and policies adopted herein. This SBA
small business size standard also appears applicable to ITFS. There are
presently 2,032 ITFS licensees. All but 100 of these licenses are held
by educational institutions. Educational institutions are included in
this analysis as small entities. Thus, we tentatively conclude that at
least 1,932 licensees are small businesses.
82. Local Multipoint Distribution Service. Local Multipoint
Distribution Service (LMDS) is a fixed broadband point-to-multipoint
microwave service that provides for two-way video telecommunications.
The auction of the 1,030 Local Multipoint Distribution Service (LMDS)
licenses began on February 18, 1998 and closed on March 25, 1998. The
Commission established a small business size standard for LMDS licenses
as an entity that has average gross revenues of less than $40 million
in the three previous calendar years. An additional small business size
standard for ``very small business'' was added as an entity that,
together with its affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years. The SBA has
approved these small business size standards in the context of LMDS
auctions. We conclude that the number of small LMDS licenses consists
of the 93 winning bidders in the first auction and the 40 winning
bidders in the re-auction, for a total of 133 small entity LMDS
providers.
83. 218-219 MHz Service. The first auction of 218-219 MHz spectrum
resulted in 170 entities winning licenses for 594 Metropolitan
Statistical Area (MSA) licenses. Of the 594 licenses, 557 were won by
entities qualifying as a small business. For that auction, the small
business size standard was an entity that, together with its
affiliates, has no more than a $6 million net worth and, after federal
income taxes (excluding any carry over losses), has no more than $2
million in annual profits each year for the previous two years. In the
218-219 MHz Report and Order and Memorandum Opinion and Order, we
established a small business size standard for a ``small business'' as
an entity that, together with its affiliates and persons or entities
that hold interests in such an entity and their affiliates, has average
annual gross revenues not to exceed $15 million for the preceding three
years. A ``very small business'' is defined as an entity that, together
with its affiliates and persons or entities that hold interests in such
an entity and its affiliates, has average annual gross revenues not to
exceed $3 million for the preceding three years. We cannot estimate,
however, the number of licenses that will be won by entities qualifying
as small or very small businesses under our rules in future auctions of
218-219 MHz spectrum.
84. 24 GHz--Incumbent Licensees. This analysis may affect incumbent
licensees who were relocated to the 24 GHz band from the 18 GHz band,
and applicants who wish to provide services in the 24 GHz band. The
applicable SBA small business size standard is that of ``Cellular and
Other Wireless Telecommunications'' companies. This
[[Page 37284]]
category provides that such a company is small if it employs no more
than 1,500 persons. Under this size standard, the great majority of
firms can be considered small.
85. 24 GHz--Future Licensees. With respect to new applicants in the
24 GHz band, the small business size standard for ``small business'' is
an entity that, together with controlling interests and affiliates, has
average annual gross revenues for the three preceding years not in
excess of $15 million. ``Very small business'' in the 24 GHz band is an
entity that, together with controlling interests and affiliates, has
average gross revenues not exceeding $3 million for the preceding three
years. The SBA has approved these small business size standards. These
size standards will apply to the future auction, if held.
b. Cable and OVS Operators
86. Cable and Other Program Distribution. This category includes
cable systems operators, closed circuit television services, direct
broadcast satellite services, multipoint distribution systems,
satellite master antenna systems, and subscription television services.
The SBA has developed small business size standard for this census
category, which includes all such companies generating $12.5 million or
less in revenue annually. The Commission estimates that the majority of
providers in this service category are small businesses that may be
affected by the rules and policies adopted herein.
87. Cable System Operators (Rate Regulation Standard). The
Commission has developed its own small business size standard for cable
system operators, for purposes of rate regulation. Under the
Commission's rules, a ``small cable company'' is one serving fewer than
400,000 subscribers nationwide. The Commission estimates that there
currently are fewer than 1,439 small entity cable system operators that
may be affected by the rules and policies adopted herein.
88. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, also contains a size standard
for small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than 1
percent of all subscribers in the United States and is not affiliated
with any entity or entities whose gross annual revenues in the
aggregate exceed $250,000,000.'' The Commission has determined that
there are 67,700,000 subscribers in the United States. Therefore, an
operator serving fewer than 677,000 subscribers shall be deemed a small
operator, if its annual revenues, when combined with the total annual
revenues of all its affiliates, do not exceed $250 million in the
aggregate. Based on available data, the Commission estimates that the
number of cable operators serving 677,000 subscribers or fewer, totals
1,450. The Commission neither requests nor collects information on
whether cable system operators are affiliated with entities whose gross
annual revenues exceed $250 million, and therefore are unable, at this
time, to estimate more accurately the number of cable system operators
that would qualify as small cable operators under the size standard
contained in the Communications Act of 1934.
89. Open Video Services. Open Video Service (OVS) systems provide
subscription services. The SBA has created a small business size
standard for Cable and Other Program Distribution. This standard
provides that a small entity is one with $12.5 million or less in
annual receipts. The Commission concludes that up to 24 OVS operators
might qualify as small businesses that may be affected by the rules and
policies adopted herein.
c. Internet Service Providers
90. Internet Service Providers. The SBA has developed a small
business size standard for Internet Service Providers (ISPs). ISPs
``provide clients access to the Internet and generally provide related
services such as web hosting, web page designing, and hardware or
software consulting related to Internet connectivity.'' Under the SBA
size standard, such a business is small if it has average annual
receipts of $21 million or less. According to Census Bureau data for
1997, there were 2,751 firms in this category that operated for the
entire year. We estimate that the majority of these firms are small
entities that may be affected by our action.
d. Other Internet-Related Entities
91. Web Search Portals. Our action pertains to VoIP services, which
could be provided by entities that provide other services such as
email, online gaming, web browsing, video conferencing, instant
messaging, and other, similar IP-enabled services. The Commission has
not adopted a size standard for entities that create or provide these
types of services or applications. However, the census bureau has
identified firms that ``operate web sites that use a search engine to
generate and maintain extensive databases of Internet addresses and
content in an easily searchable format. Web search portals often
provide additional Internet services, such as e-mail, connections to
other web sites, auctions, news, and other limited content, and serve
as a home base for Internet users.'' The SBA has developed a small
business size standard for this category; that size standard is $6
million or less in average annual receipts. We estimate that the
majority of these firms are small entities that may be affected by our
action.
92. Data Processing, Hosting, and Related Services. Entities in
this category ``primarily `` provid[e] infrastructure for hosting or
data processing services.'' The SBA has developed a small business size
standard for this category; that size standard is $21 million or less
in average annual receipts. We estimate that the majority of these
firms are small entities that may be affected by our action.
93. All Other Information Services. ``This industry comprises
establishments primarily engaged in providing other information
services (except new syndicates and libraries and archives).'' Our
action pertains to VoIP services, which could be provided by entities
that provide other services such as email, online gaming, web browsing,
video conferencing, instant messaging, and other, similar IP-enabled
services. The SBA has developed a small business size standard for this
category; that size standard is $6 million or less in average annual
receipts. We estimate that the majority of these firms are small
entities that may be affected by our action.
94. Internet Publishing and Broadcasting. ``This industry comprises
establishments engaged in publishing and/or broadcasting content on the
Internet exclusively. These establishments do not provide traditional
(non-Internet) versions of the content that they publish or
broadcast.'' The SBA has developed a small business size standard for
this new (2002) census category; that size standard is 500 or fewer
employees. To assess the prevalence of small entities in this category,
we will use 1997 Census Bureau data for a relevant, now-superseded
census category, ``All Other Information Services.'' The SBA small
business size standard for that prior category was $6 million or less
in average annual receipts. We estimate that the majority of the firms
in this current category are small entities that may be affected by our
action.
95. Software Publishers. These companies may design, develop or
publish software and may provide other support services to software
purchasers, such as providing documentation or assisting in
installation. The companies
[[Page 37285]]
may also design software to meet the needs of specific users. The SBA
has developed a small business size standard of $21 million or less in
average annual receipts for all of the following pertinent categories:
Software Publishers, Custom Computer Programming Services, and Other
Computer Related Services. We estimate that the majority of the firms
in each of these three categories are small entities that may be
affected by our action.
96. Equipment Manufacturers. The equipment manufacturers described
in this section are merely indirectly affected by our current action,
and therefore are not formally a part of this FRFA analysis. We have
included them, however, to broaden the record in this proceeding and to
alert them to our decisions. These manufacturers may include: Wireless
Communications Equipment Manufacturers; Telephone Apparatus
Manufacturing; Electronic Computer Manufacturing; Computer Terminal
Manufacturing; Other Computer Peripheral Equipment Manufacturing; Fiber
Optic Cable Manufacturing; Other Communication and Energy Wire
Manufacturing; Audio and Video Equipment Manufacturing; Electron Tube
Manufacturing; Bare Printed Circuit Board Manufacturing; Semiconductor
and Related Device Manufacturing; Electronic Capacitor Manufacturing;
Electronic Resistor Manufacturing; Electronic Coil, Transformer, and
Other Inductor Manufacturing; Electronic Connector Manufacturing;
Printed Circuit Assembly (Electronic Assembly) Manufacturing; Other
Electronic Component Manufacturing; and Computer Storage Device
Manufacturing.
4. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
97. We are requiring interconnected VoIP service providers to
collect certain information and take other actions to comply with our
rules requiring interconnected VoIP service providers to supply E911
capabilities to their customers. The Order requires collection of
information in four instances. First, interconnected VoIP providers
must obtain from each customer, prior to the initiation of service, the
physical location at which the service will first be utilized, and must
provide customers a way to update this information (i.e., the
``Registered Location''). Second, interconnected VoIP providers must
place the Registered Location information for their customers into, or
make that information available through, ALI Databases maintained by
local exchange carriers (and, in at least one case, a state government)
across the country. Third, the Order requires all providers of
interconnected VoIP service specifically to advise new and existing
subscribers of the circumstances under which E911 service may not be
available through the interconnected VoIP service or may be in some way
limited by comparison to traditional E911 service, and to obtain and
keep a record of affirmative acknowledgement by every subscriber of
having received and understood this advisory. Fourth, the Order
requires all interconnected VoIP providers to submit a letter to the
Commission detailing their compliance with the rules set forth in the
Order no later than 120 days after the effective date of the Order.
98. We also impose other requirements on providers of
interconnected VoIP service. Specifically, the Order requires that,
within 120 days of the effective date of the Order, an interconnected
VoIP provider must transmit all 911 calls, as well as a call back
number and the caller's Registered Location for each call, to the PSAP,
designated statewide default answering point, or appropriate local
emergency authority that serves the caller's Registered Location and
that has been designated for telecommunications carriers under section
64.3001 of the Commission's rules. These calls must be routed through
the use of ANI or pseudo-ANI via the dedicated Wireline E911 Network,
and the Registered Location must be available from or through the ALI
Database. As explained in the Order, however, an interconnected VoIP
provider need only provide such call back and location information as a
PSAP, designated statewide default answering point, or appropriate
local emergency authority is capable of receiving and utilizing. The
obligation to determine what type of information, such as ALI or ANI,
each PSAP is capable of receiving and utilizing rests with the provider
of interconnected VoIP services.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
99. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include (among others) the following four alternatives: (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
100. The NPRM invited comment on a number of alternatives to the
imposition of 911/E911 obligations on providers of interconnected VoIP
service. For instance, the NPRM specifically sought comment on the
effectiveness of alternatives to direct regulation to achieve the
Commission's public policy goals of ensuring the availability of 911
and E911 capability. The Commission also sought comment on whether
voluntary agreements among public safety trade associations, commercial
IP-stakeholders, consumers, and state and local E911 coordinators and
administrators could lead to VoIP subscribers receiving enhanced 911
functionality, and what the Commission could do to facilitate such
agreements. The Commission also asked whether ``promulgation of best
practices or technical guidelines [would] promote the provision of
effective IP-based E911 services.'' The Commission also asked how it
could provide for technological flexibility so that our rules allow for
the development of new and innovative technologies in the event it
concluded that mandatory requirements would be necessary.
101. In addition, the Commission sought comment on more general
issues surrounding the possible imposition of a 911/E911 requirement
for IP-enabled services, which could have prompted commenters to
suggest other alternatives to the rules adopted in the Order. For
instance, the Commission sought comment on what ways IP-enabled service
providers currently seek to provide emergency services to their
customers. The Commission also noted that the development and
deployment of IP-enabled services is in its early stages, that these
services are fast-changing and likely to evolve in ways that it cannot
anticipate, and that imposition of regulatory mandates should be
undertaken with caution. In this regard, the Commission sought comment
on how to weigh the potential public benefits of requiring emergency
calling and other public safety capabilities against the risk that
regulation could slow technical and market development.
102. The Commission has considered each of the alternatives
described above, and in the Order, imposes minimal regulation on small
entities to the extent consistent with our goal of ensuring that users
of interconnected VoIP service have access to appropriate emergency
[[Page 37286]]
services when they dial 911. As an initial matter, the Commission
limited the scope of the Order to interconnected VoIP service
providers. As a result, certain VoIP service providers are not subject
to the E911 obligations imposed in the Order. Specifically, the Order
does not apply to those entities not fully interconnected with the
PSTN. Because interconnecting with the PSTN can impose substantial
costs, we anticipate that many of the entities that elect not to
interconnect with the PSTN, and which therefore are not subject to the
rules adopted in the Order, are small entities. Small entities that
provide VoIP services therefore also have some control over whether
they will be subject to the E911 obligations adopted in the Order.
Small businesses may still offer VoIP service without being subject to
the rules adopted in the Order by electing not to provide an
interconnected VoIP service.
103. However, as stated above, we must assess the interests of
small businesses in light of the overriding public interest in access
to E911 services when using interconnected VoIP services. The Order
discusses that E911 service is critical to our nation's ability to
respond to a host of crises and that the public has come to rely on the
life-saving benefits of such services in emergency situations.
Therefore, the Commission concluded that it was important for all
interconnected VoIP service providers to participate in protecting the
public safety, regardless of their size. The Commission therefore
rejected solutions that would rely on the voluntary agreement of VoIP
service providers. The record indicated that this alternative had not
resulted in, and was not likely soon to result in, ubiquitous access to
E911 among users of interconnected VoIP service, which is the
Commission's goal.
104. While the rules adopted in the Order apply to all providers of
interconnected VoIP service, the Commission attempted to minimize the
impact of the new rules on all entities, including small entities. For
instance, while it is essential that interconnected VoIP service
providers interconnect with the Wireline E911 Network, the Commission
employed performance rather than design standards to achieve this
result. Thus, rather than mandating a particular technical solution,
the Order allows interconnected VoIP providers to connect directly to
the Wireline E911 Network, or connect indirectly through a third party,
such as a competitive LEC, or through any other solution that allows a
provider to offer E911 service, which thereby allows for technological
and commercial flexibility, and leaves room under the new rules for the
development of new and innovative technologies. The Commission also
declined to specify any particular method by which interconnected VoIP
service providers must enable their customers to provide and update
their Registered Location. The Commission also declined to specify any
particular method by which interconnected VoIP service providers must
advise new and existing subscribers of the E911 service limitations of
their interconnected VoIP service and declined to specify any
particular method by which acknowledgments of such limitations must be
gathered and stored. The Commission expects these decisions will help
small entities comply with the rules adopted in the Order in the most
practical means possible. In addition, the Commission in the Order
imposes straightforward and limited reporting requirements, and sets
reasonable timetables. For example, regarding reporting requirements,
the Commission simply requires providers of interconnected VoIP service
to file a letter detailing their compliance with our rules no later
than 120 days after the effective date of the Order. In addition, while
the Commission's review of the record in this proceeding convinces us
that ensuring reliable E911 service for users of interconnected VoIP
service is essential, and therefore that the location information of
such users who dial 911 should automatically be sent to the relevant
PSAP, the Commission did not impose the obligation in the Order
automatically to locate the interconnected VoIP service user in light
of record evidence of the current state of technological development
and the costs, including on small entities, of such an obligation. The
Commission fully expects this situation to change in the near future,
helped in part by the present Order.
105. We also note that by adopting E911 rules for providers of
interconnected VoIP service at the present time, the Commission likely
has saved small entities providing these services resources in the long
run. For instance, in light of the importance of E911 service to the
public, providers of interconnected VoIP service likely eventually
would have been required by the Commission or Congress to provide E911
service. This could have involved ``costly and inefficient
`retrofitting' of embedded IP infrastructure'' for any interconnected
VoIP service provider that had already adopted a E911 solution.
106. Report to Congress: The Commission will send a copy of the
Order, including this FRFA, in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act. In addition, the Commission will send a copy of the Order,
including this FRFA, to the Chief Counsel for Advocacy of the SBA. (A
copy of this present summarized Order and FRFA is also hereby published
in the Federal Register.)
Ordering Clauses
107. Accordingly, it is ordered that pursuant to sections 1, 4(i),
4(j), 251(e) and 303(r) of the Communications Act of 1934, as amended,
47 U.S.C. 151, 154(i)-(j), 251(e), 303(r), the Report and Order in WC
Docket No. 04-36 IS adopted, and that part 9 of the Commission's rules,
47 CFR part 9, is added as set forth in the rule changes. The Order
shall become effective July 29, 2005 subject to OMB approval for new
information collection requirements. Accordingly, subject to such OMB
approval: (i) Compliance within the customer notification requirements
set forth in 47 CFR 9.5(e) is required by July 29, 2005; (ii) the
compliance letter required by 47 CFR 9.5(f) must be submitted to the
Commission no later than November 28, 2005; and (iii) compliance with
the requirements in 47 CFR 9.5(b) through (d) is required by November
28, 2005.
108. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this First Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 9
Interconnected voice over internet protocol services,
Communications, Telephone, Reporting and recordkeeping requirements.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission is adding 47 CFR part 9 to read as follows:
PART 9--INTERCONNECTED VOICE OVER INTERNET PROTOCOL SERVICES
Sec.
9.1 Purpose.
9.3 Definitions.
9.5 E911 Service.
[[Page 37287]]
Authority: 47 U.S.C. 151, 154(i)-(j), 251(e), and 303(r) unless
otherwise noted.
Sec. 9.1 Purpose.
The purpose of this part is to set forth the E911 service
requirements and conditions applicable to interconnected Voice over
Internet Protocol service providers.
Sec. 9.3 Definitions.
ANI. Automatic Number Identification, as such term is defined in
Sec. 20.3 of this chapter.
Appropriate local emergency authority. An emergency answering point
that has not been officially designated as a Public Safety Answering
Point (PSAP), but has the capability of receiving 911 calls and either
dispatching emergency services personnel or, if necessary, relaying the
call to another emergency service provider. An appropriate local
emergency authority may include, but is not limited to, an existing
local law enforcement authority, such as the police, county sheriff,
local emergency medical services provider, or fire department.
Interconnected VoIP service. An interconnected Voice over Internet
protocol (VoIP) service is a service that:
(1) Enables real-time, two-way voice communications;
(2) Requires a broadband connection from the user's location;
(3) Requires Internet protocol-compatible customer premises
equipment (CPE); and
(4) Permits users generally to receive calls that originate on the
public switched telephone network and to terminate calls to the public
switched telephone network.
PSAP. Public Safety Answering Point, as such term is defined in
Sec. 20.3 of this chapter.
Pseudo Automatic Number Identification (Pseudo-ANI). A number,
consisting of the same number of digits as ANI, that is not a North
American Numbering Plan telephone directory number and may be used in
place of an ANI to convey special meaning. The special meaning assigned
to the pseudo-ANI is determined by agreements, as necessary, between
the system originating the call, intermediate systems handling and
routing the call, and the destination system.
Registered Location. The most recent information obtained by an
interconnected VoIP service provider that identifies the physical
location of an end user.
Statewide default answering point. An emergency answering point
designated by the State to receive 911 calls for either the entire
State or those portions of the State not otherwise served by a local
PSAP.
Wireline E911 Network. A dedicated wireline network that:
(1) Is interconnected with but largely separate from the public
switched telephone network;
(2) Includes a selective router; and
(3) Is utilized to route emergency calls and related information to
PSAPs, designated statewide default answering points, appropriate local
emergency authorities or other emergency answering points.
Sec. 9.5 E911 Service.
(a) Scope of Section. The following requirements are only
applicable to providers of interconnected VoIP services. Further, the
following requirements apply only to 911 calls placed by users whose
Registered Location is in a geographic area served by a Wireline E911
Network (which, as defined in Sec. 9.3, includes a selective router).
(b) E911 Service. As of November 28, 2005:
(1) Interconnected VoIP service providers must, as a condition of
providing service to a consumer, provide that consumer with E911
service as described in this section;
(2) Interconnected VoIP service providers must transmit all 911
calls, as well as ANI and the caller's Registered Location for each
call, to the PSAP, designated statewide default answering point, or
appropriate local emergency authority that serves the caller's
Registered Location and that has been designated for telecommunications
carriers pursuant to Sec. 64.3001 of this chapter, provided that ``all
911 calls'' is defined as ``any voice communication initiated by an
interconnected VoIP user dialing 911;''
(3) All 911 calls must be routed through the use of ANI and, if
necessary, pseudo-ANI, via the dedicated Wireline E911 Network; and
(4) The Registered Location must be available to the appropriate
PSAP, designated statewide default answering point, or appropriate
local emergency authority from or through the appropriate automatic
location information (ALI) database.
(c) Service Level Obligation. Notwithstanding the provisions in
paragraph (b) of this section, if a PSAP, designated statewide default
answering point, or appropriate local emergency authority is not
capable of receiving and processing either ANI or location information,
an interconnected VoIP service provider need not provide such ANI or
location information; however, nothing in this paragraph affects the
obligation under paragraph (b) of this section of an interconnected
VoIP service provider to transmit via the Wireline E911 Network all 911
calls to the PSAP, designated statewide default answering point, or
appropriate local emergency authority that serves the caller's
Registered Location and that has been designated for telecommunications
carriers pursuant to Sec. 64.3001 of this chapter.
(d) Registered Location Requirement. As of November 28, 2005,
interconnected VoIP service providers must:
(1) Obtain from each customer, prior to the initiation of service,
the physical location at which the service will first be utilized; and
(2) Provide their end users one or more methods of updating their
Registered Location, including at least one option that requires use
only of the CPE necessary to access the interconnected VoIP service.
Any method utilized must allow an end user to update the Registered
Location at will and in a timely manner.
(e) Customer Notification. Each interconnected VoIP service
provider shall:
(1) Specifically advise every subscriber, both new and existing,
prominently and in plain language, of the circumstances under which
E911 service may not be available through the interconnected VoIP
service or may be in some way limited by comparison to traditional E911
service. Such circumstances include, but are not limited to, relocation
of the end user's IP-compatible CPE, use by the end user of a non-
native telephone number, broadband connection failure, loss of
electrical power, and delays that may occur in making a Registered
Location available in or through the ALI database;
(2) Obtain and keep a record of affirmative acknowledgement by
every subscriber, both new and existing, of having received and
understood the advisory described in paragraph (e)(1) of this section;
and
(3) Distribute to its existing subscribers warning stickers or
other appropriate labels warning subscribers if E911 service may be
limited or not available and instructing the subscriber to place them
on or near the equipment used in conjunction with the interconnected
VoIP service. Each interconnected VoIP provider shall distribute such
warning stickers or other appropriate labels to each new subscriber
prior to the initiation of that subscriber's service.
(f) Compliance Letter. All interconnected VoIP providers must
[[Page 37288]]
submit a letter to the Commission detailing their compliance with this
section no later than November 28, 2005.
[FR Doc. 05-12828 Filed 6-28-05; 8:45 am]
BILLING CODE 6712-01-P