The final element of the Commission’s revised E911 rules has now been blessed by the Office of Management and Budget. With a Federal Register notice of that fact, Section 20.18 of the rules, as revised last July, has taken effect as of July 25, 2012. The rest of the revised E911 rules took effect last November
Can you find me NOW? Come November, the chances may be better.
Back in July we reported on the adoption of some new rules designed to make it easier to monitor your location (ours too, but we're more concerned about our readers than ourselves) more precisely through your personal communications devices. The Commission’s Report and Order has now been published in the Federal Register, establishing November 28, 2011 as the effective date of the new rules (not including Section 20.18(h)(2), which has to go through OMB's Paperwork Reduction Act drill first). Some of those rules will be phased in over a multi-year period; others may have a more immediate impact on carriers subject to the more stringent testing regimen and the higher level of location-finding accuracy. Whether or not you the mobile device user will notice any difference is not clear, and probably won’t be until (a) you want to be located or (b) somebody wants to locate you. If the former, let’s hope the new rules work; if the latter, well, it probably depends on who wants to locate you and why.
Last month we reported on the Commission’s proposal to enhance the location-identification accuracy of E-911 calls. That proposal has now been published in the Federal Register. As a result, the deadlines for comments and reply comments on that proposal have been established: comments are due by October 3, 2011; reply comments are due by November 2, 2011.
Never mind – the Man will know where you are, even if you don’t
Even as privacy advocates are getting increasingly nervous about the extent to which our communications devices keep tabs on our whereabouts, the FCC is looking to make it easier to monitor our location more precisely and over a broader range of devices. In a combined Notice of Proposed Rulemaking, Third Report and Order, and Second Further Notice of Proposed Rulemaking (let's just go with R&O/NPRM for short), the FCC has taken steps to enhance E-911 accuracy in two respects.
The new measures build upon rules adopted last year in which the FCC tightened and clarified the accuracy requirements for carriers who employ “handset” and “network” solutions for achieving specified location accuracy levels. (Handset carriers rely on the GPS capabilities of the customer’s handset to establish his or her location. Network carriers rely on triangulation of radio signals among cell towers to find their customers.) By requiring accuracy levels to be met at the county or PSAP level, the Commission indirectly raised the accuracy bar by ensuring that high accuracy is achieved in all parts of a carrier’s service area. (The FCC provided exceptions for areas where dense forestation or the lack of triangulation would not permit these high levels to be reached.) These accuracy requirements are to take effect over an eight-year period.
In the R&O/NPRM released July 13, the FCC has ordained that, following that eight-year implementation period, the Commission will do away with the separate network-based accuracy standard entirely.
The network solution was always less accurate and more problematic due to the need for at least three proximate towers to get a meaningful reading. On the other hand, not all cell phones had GPS capability, so there had to be an alternative to the handset approach. But the FCC has determined that GPS capabilities have become so widespread – and are likely to become even more so – that exclusive reliance on the handset standard is appropriate. Eight years, the Commission figures, should give the public plenty of time to wring the useful life out of their existing non-GPS-capable phones before those phones get turned in for something new. The FCC is, however, requiring CMRS systems coming on line after the effective date of the new rules to comply immediately with the more rigorous handset accuracy standard. (In any case carriers can continue to use whole or hybrid network- based location techniques – but they must nevertheless meet the stricter handset-based standard of accuracy.)
The new rules also mandate that carriers conduct periodic tests of their actual accuracy levels, with the results to be reported to local authorities and the Commission itself. The Commission feels, understandably, that if called upon to measure their performance regularly and be judged on the results, carriers will be more likely to make maintenance of accuracy a priority. The exact nature of the tests to be conducted awaits recommendations from the Communications Security, Reliability and Interoperability Council.
Always looking for ways to further the reach of call location technology, the FCC is also seeking comment (in the NPRM portion of the R&O/NPRM) on whether it should extend the E-911 accuracy requirements to outbound-only interconnected voice services. (After much debate, the FCC a few years ago extended the location-identification rules to two-way, interconnected voice services provided over the Internet. The problem was that a computer being used for VoIP doesn’t know where it is, nor does the network, so the customer has to affirmatively register his/her location so the system will know where he/she is. This is not a very good solution since it depends on the customer to vigilantly protect his/her own health and safety rather than making it the service provider’s responsibility.)
So now the FCC is now asking: (a) if it should extend this requirement incrementally to include one-way VoIP calling (a “Skype-out” only situation); and also (b) whether there is some way technically to locate VoIP users that does not depend on registration by customers themselves. No one yet has been able to figure out how over-the-top VoIP providers can possibly do the latter.
The FCC is also seeking input on how indoor calling locations can be established more accurately. This capability will be increasingly helpful as more and more consumers use their mobile phones as their only phone. Locating a cell phone in a ten-story apartment building on a city block would be impossible even with the strictest outdoor standards adopted by the Commission. Finally, the FCC wants to see if WiFi hotspots can somehow be used to help locate callers.
Comments on this forward-looking part of the FCC's action are due 60 days after publication in the Federal Register, with replies 30 days later. (Check back here for updates on those deadlines.)
We cannot close without sounding a warning note on the civil liberties front. The FCC certainly means well in trying to compel carriers and VoIP providers to carefully, constantly and precisely track the location of their customers. But the potential for abuse is already apparent. Divorce lawyers have discovered that they can track an errant spouse's whereabouts by cell phone. Law enforcement now relies on cell phones to easily track not only fugitives from justice but also “persons of interest”. Merchants track people’s whereabouts so that coupons and promotional offerings can be sent to them when they are immediately next to the potential point of sale.
Knowledge of a person’s location, it turns out, is a valuable commodity indeed.
But we are being forced to give this knowledge away for free and without any opt-out choice. The Commission’s R&O/NPRM nods at the privacy concerns raised by the heightened location requirements, but also notes that consumers’ privacy rights are statutorily waived in connection with the delivery of emergency services.
Imagine if a chip were compulsorily implanted in each of us at birth that would permit a government computer to know where we are at all times. In some ways that would be very useful – no lost children, no missing persons, no wandering dementia victims – but the notion is an affront to the inviolability of our persons. Unfortunately, the cell phone, which has become a kind of externally-appended computer chip for many of us, will soon serve that exact function. We are learning once again that “security” is too often purchased with a subtle loss of privacy, a loss of freedom, and a loss of that most cherished right cited by Justice Brandeis in his dissent in Olmstead v. United States: the right to be let alone.
Last September we reported on steps the Commission had taken to increase the E911accuracy standards. While many of the changes adopted by the Commission back then took effect in January, several – specifically, §§20.18(h)(1)(vi), 20.18(h)(2)(iii), and 20.18(h)(3) – did not, because they involve “information collections” that had to be approved by the Office of Management and Budget. That approval has now made its way through the bureaucracy, and the FCC has published a notice concerning that approval in the Federal Register. And with that, those rules became effective as of April 28, 2011 (the date the notice made it into the Federal Register).
Pending OMB approval still keeping some of the new rules in limbo for now
A couple of months ago we reported on two FCC actions involving E911 accuracy standards. In separate decisions released simultaneously, the Commission (a) accepted an industry/public safety community compromise on those standards and (b) proposed to expand the reach of those standards. As we reported a couple of weeks ago, it took the Commission more than a month to get the deadlines for comments and replies about the proposed rules established (by publishing the NPRM in the Federal Register).
For some unexplained reason, it has taken even longer for the Commission to get the rules it adopted back in September published and, therefore, effective. Never fear, though – today, just in time for Thanksgiving, the Second Report and Order in the E911 location accuracy proceeding has finally made it into the Federal Register. That means that the new rules will become effective in 60 days. Wait, don’t bother to reach for your calendar – we’ve already done the calculation: the effective date will be January 18, 2011 (which is actually 62 days from publication -- presumably that's because the 60th day, January 16, is a Sunday, and the next day, January 17, is Martin Luther King Day).
Note that §§ 20.18(h)(1)(vi), 20.18(h)(2)(iii), and 20.18(h)(3) – all of which were changed in the Second Report and Order – will not necessarily take effect on January 18. That’s because they involve information collections which have yet to be approved by OMB first. OMB approval might be obtained before January 16, but it hasn’t happened yet, so we still can’t say for sure when those particular rules will kick in.
Today appears to be E911 Day in the Federal Register. Two recent E911-related Notices of Proposed Rulemaking are published, which means that the deadlines for comments and reply comments in those proceedings have now been set. (The two NPRMs were separately released back in September, so you’re forgiven if they may have slipped your mind of late.)
The first (CG Docket No. 03-123/WC Docket No. 05-196/WC Docket No. 10-191) involves the issuance of toll-free numbers for iTRS use, a practice which can make it difficult for emergency response teams to respond as promptly as possible to E911 calls. We reported on it here, you can read the full text of the NPRM here, and the Federal Register version may be found here. Comments on the proposed rules are due by December 2, 2010, 2010, and reply comments are due by December 17, 2010. Note that this particular proceeding also involves proposed new “information collection” requirements, which triggers the Paperwork Reduction Act – and thus affords yet a third opportunity to comment. If you feel like commenting on the proposed information collection requirements, you may do so by January 3, 2011.
The second proceeding (PS Docket No. 07-114/WC Docket No. 05-196) involves standards for E911 location capability accuracy. We reported on that one here, you can read the full text of the NPRM here, and the Federal Register version may be found here. Comments in the matter are due by January 3, 2011, and reply comments by January 31, 2011.
FCC tightens location accuracy standards, provides relief for rural settings, inquires into possible additional steps
After two years of reflection on the matter, the FCC has decided to accept an industry/public safety community compromise on E-911 accuracy standards. At the same time, it has proposed to expand the reach of those standards to new categories of service providers while tightening the standards even further.
When last we talked about E-911, the FCC had adopted rules that required wireless carriers to achieve a high level of “ALI” accuracy (the ability to identify the location of a call) at the public safety answering point (PSAP) level. This development came about because the rules required emergency call location information to be provided with a high degree of accuracy (within 100 meters) for 67% of the calls received and within 300 meters for 95% of the calls, but the standard was being diluted by carriers calculating their level of compliance over large areas.
To plug this loophole, the FCC ordained that the requisite degree of reliability now had to be met on a PSAP level rather than the larger geographic areas which the rules previously permitted. This requirement was deemed difficult or impossible of compliance by many in the mobile communications industry. Carriers who used the “network” solution (which relies on triangulation of signals to achieve accuracy) complained that in areas with few cell sites, the necessary triangulation was simply not available. Appeals to the Court were duly filed, but before the Court could rule, the Public Safety community (APCO and NENA) indicated that they were amenable to liberalizing the measuring standard to a county level rather than the PSAP level. Further discussions with the largest carriers resulted in agreement by Public Safety that some additional leeway was appropriate in areas where heavy forestation impeded the ability to get extreme accuracy. Given the growing consensus that the standard which had been adopted might need revision, the FCC sought and was granted a remand from the Court so it could re-visit the issue.
After seeking further input, the FCC basically accepted the consensus of the industry and Public Safety as to what was both feasible and would provide a heightened degree of accuracy for first responders. While we are usually uncomfortable when the FCC lets AT&T, Verizon and a few other large carriers speak for “the industry,” in this case the FCC listened both to the largest carriers and to representatives of smaller carriers who moaned that they did not have the same access to new aGPS equipment as the majors. The resulting decision seems to reasonably reflect the needs and concerns of most parties.
The FCC afforded network-based carriers an unusual degree of flexibility in establishing compliance. They can elect to be measured over either counties or PSAPs in their service areas, whichever they desire. And they can use either network-based accuracy data, handset-based data (after a few years), or a combination of both. To further sweeten the deal, the FCC will permit carriers to exclude from the calculation counties or portions of counties where triangulation is not technically possible. The pertinent counties must be reported in the FCC Docket and sent to Public Safety.
This concession to the laws of physics is huge since the triangulation problem was a major impediment to compliance by rural carriers. In addition, even a network-based carrier may rely on handset-based accuracy data if it has a high degree of aGPS-equipped subscribers (85%) network-wide or if it gives aGPS equipment to subscribers in the area at no charge. Handset-based carriers also got some relief: they can exclude up to 15% of counties or PSAPs whose heavy forestation limits handset location accuracy.
All of this is not to say that the new rules do not impose significant burdens. They certainly do. To wit:
- Carriers who use the network-based solution must meet the 100 meters/67% of calls metric over 60% of their counties or PSAPs within one year of the effective date of the new rules. The counties included must cover at least 70% of the counties covered by the carrier over its entire network. The 70% requirement is presumably there to preclude manipulation of the data, but the FCC offered no explanation for it whatsoever, so it is unclear whether the reference to a carrier’s “entire network” means its entire nationwide network or its network within the particular call sign being measured. Within three years, carriers must meet this metric in 70% of the counties or PSAPs, with 80% of the counties in the entire network being included. Finally, in five years carriers must meet the metric in 100% of the counties or PSAPs. At this point, handset-based accuracy data may also be used to demonstrate compliance, on the assumption that aGPS devices will be relatively widely available by that time.
- Network-based carriers must meet the 300 meters/90%-of-calls metric on a three year – five year – eight year timetable. Note that the metric for this level of accuracy has been reduced from 95% of calls to 90%.
- Meanwhile, handset-based carriers have two years to meet an accuracy metric of 50 meters/67% of calls and 150 meters/80% of calls. By year eight they must reach 150 meters accuracy for 90% of calls.
- No self-respecting FCC regulation would be complete without a reporting requirement. Here the FCC is requiring the reporting of “confidence and uncertainty” data at the request of any PSAP. We appreciate this requirement because a fragile balance of confidence and uncertainty so defines the human condition. The precise nature of this data is notably unclear from the FCC's order, leaving us somewhat on the uncertainty side of the equation in this regard.
- Finally, the FCC has clarified that the accuracy metrics noted above only apply to outdoor measurements. But how will the measurement process know whether any particular call originated from indoors or outdoors, and therefore whether it should be included in the accuracy calculations?
Having adopted these requirements, the FCC issued a companion notice of proposed rulemaking (NPRM) inquiring into a number of important issues:
- Should there be single accuracy metric given the accelerating convergence of handset and network technology?
- Can the level of accuracy required be stepped up even higher given the new technologies?
- Should “Z-axis” (i.e., height above ground data) be added to the location requirement?
- More broadly, should the Commission extend the current VoIP ALI rules to a wider universe of service providers? The current rules require VoIP users to self-report their location since there is no other way for the network to know where a computer happens to be located. And even this requirement applies only where the customer originates and terminates calls to the PSTN in real time. But as the use of computers and computer-like devices with voice capability spreads, so too does the need to be able to locate 911 calls originated from such devices. The Commission recognizes that such an expansion of the E-911 process would be problematic since the new computing devices are themselves mobile – self-reporting one’s whereabouts would be impractical and would defeat the purpose of “automatic” location identification. This inquiry is plainly at its inception, but it will become more important as all communications move to an Internet-based model.
The deadlines for comments and reply comments have not yet been set. They will depend on the date the NPRM is published in the Federal Register (comments will be due 60 days after publication, replies 90 days after publication). Check back here for updates.