CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

This is not a new problem.  Historically, the Commission has been inclined to buck the MLTS  problem to state and local governments, which the FCC felt to be “in a better position to devise rules for their jurisdictions”.  But Congress had different ideas.

As part of the sweeping Middle Class Tax Relief and Job Creation Act signed into law in February, Congress enacted the Next Generation 911 Advancement Act of 2012.  That provision directed the FCC to take a look at the feasibility of requiring MLTS manufacturers to include

within all [MLTS] systems manufactured or sold after a date certain, to be determined by the Commission, one or more mechanisms to provide a sufficiently precise indication of a 9-1-1 caller’s location, while avoiding the imposition of undue burdens on MLTS manufacturers, providers, and operators.

The new law also required the FCC to seek comment on model legislation drafted by the National Emergency Number Association (NENA).  (The full title of that model legislation is “Technical Requirements Document On Model Legislation E9-1-1 for Multiline Telephone Systems.”)

The FCC has dutifully responded with a public notice requesting comment on both the questions posed by Congress.

So far, the inquiry as framed by Congress in the Act and the FCC in its public notice is directed exclusively to newly manufactured MLTSs.  There is no suggestion that existing systems should be retrofitted.  Nevertheless, large businesses and institutions using MLTSs – universities providing phone service to dormitories spread out across a wide campus, as an example – should probably consider how to react if the FCC were to adopt regulations, even if those regs are prospective-only.  The adoption of such standards may encourage such entities to accelerate the replacement of their MLTSs.  Why?  To avoid any possible negligence claim if a person somewhere on the premises of the business or institution were to call 911 but not be locatable in time by first responders because of the technical shortcomings of the older MLTS

The FCC has set deadlines for responses to the public notice: July 5, 2012 for comments, August 6, 2012 for replies.

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.

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.