FCC’s 9-1-1 Regulatory Role Could Expand with Proposed Reliability Rules
By Wesley K. Wright
Tuesday, February 10, 2015 | Comments

FCC Chairman Tom Wheeler wrapped up the business portion of the agency’s Oct. 17 open meeting by commending the Public Safety and Homeland Security Bureau’s report summarizing the cause and impact of an April 2014 multistate 9-1-1 outage. Wheeler concluded by charging the bureau with recommending a quick and effective response to the outage. “We appreciate you identifying the issues and are standing by for a quick response,” Wheeler said.

The industry did not have to wait long. In November, the commission released its quick response in the form of a policy statement and notice of proposed rulemaking (NPRM) with proposed rules to preserve reliable 9-1-1 service as technology evolves. The NPRM was published in the Federal Register Jan. 22. Comments in response to the NPRM are due March 9, and reply comments must be filed by April 7.

The NPRM builds on 9-1-1 reliability rules that the FCC adopted in December 2013. If adopted, the proposed rules would expand the commission’s role in regulating the nation’s 9-1-1 infrastructure to such a degree that the two Republican commissioners argue the FCC lacks legal authority to take such an expansive oversight role. They might be right.

The 2013 Reliability Rules

The 2013 reliability rules were adopted to improve the reliability and resiliency of the nation’s 9-1-1 communications network after the East Coast experienced substantial outages during the June 2012 derecho storm.

The 2013 reliability rules apply to 9-1-1 service providers, including entities that provide 9-1-1, enhanced 9-1-1 (E9-1-1), or next-generation 9-1-1 (NG 9-1-1) capabilities such as call routing, automatic location information (ALI), automatic number identification (ANI) or the functional equivalent of those capabilities, directly to a public-safety answering point (PSAP), statewide default answering point or appropriate local emergency authority. Certain PSAP and governmental entities are not considered 9-1-1 service providers.

The substance of the 2013 reliability rules requires 9-1-1 service providers to take reasonable measures to provide reliable 9-1-1 service with respect to three network elements: circuit auditing, central-office backup power and diverse network monitoring. Circuit auditing requires providers to conduct diversity audits, tag critical 9-1-1 circuits and eliminate all single points of failure in critical 9-1-1 circuits. The rules also require reliable backup power in any central office that directly serves the PSAP and audits of the physical diversity of the aggregation points that providers use to gather network monitoring data.

Each 9-1-1 service provider must also certify annually that it has taken these reasonable measures to ensure reliable 9-1-1 service. The rules became effective Oct.14.

The 2014 Proposed Reliability Rules

The ink was barely dry on the 2013 reliability rules when the FCC released the NPRM that expanded the commission’s oversight of the nation’s 9-1-1 infrastructure and sought to achieve the same goal — promoting reliable 9-1-1 service.

The proposed rules, if adopted, would:
1. Expand the definition of a 9-1-1 service provider to include subcontractors and vendors that do not necessarily have a contractual relationship with a PSAP;
2. Expand the “reasonableness” requirement to mandate that all providers take reasonable steps to provide reliable 9-1-1 service instead of being limited to the three network elements identified in the 2013 reliability rules;
3. Require providers to seek FCC approval to discontinue, reduce or impair existing 9-1-1 service or to offer new services;
4. Require providers to provide public notice of major changes to 9-1-1 networks; and,
5. Establish a class of covered 9-1-1 service providers, known as the networks operations center, to collect and share information during a 9-1-1 service outage.

The commission may lack authority to adopt such expansive rules. The two Republican Commissioners — Ajit Pai and Mike O’Rielly — dissented from the NPRM because they said they believed the FCC was impermissibly usurping state and local authority over 9-1-1 matters. Commissioner Pai argued that “there simply is no law that gives the FCC the authority to create the comprehensive federal 9-1-1 regime we propose today.”

Despite these concerns, the NPRM seeks input on the proposed rules. For example, the FCC asks if it should adopt rules requiring covered providers to confirm PSAP contact information; maintain outage information, email or short message service (SMS) distribution lists for the PSAPs in the states served; and test PSAP notification systems periodically.

The agency also seeks comment as to whether it should require covered providers to provide 60 days advanced notice to the FCC and the public of major changes in 9-1-1 service even though the agency does not have a workable definition of a major change to 9-1-1 service that would trigger such notice. The commission proposes to classify a major change as one that impacts 9-1-1 service in more than one state, but expresses concern that this will lead the industry to adopt incremental, state-by-state changes that are less efficient.

It is still early in the rulemaking process, and I expect the agency will receive a substantial number of comments from PSAPs, state and local governments, and public-safety entities. So once again, stay tuned.

Some Good News: NG 9-1-1 Funding

Despite the focus on NG 9-1-1 issues at the FCC and the First Responder Network Authority (FirstNet), one major obstacle stands in the way of nationwide NG 9-1-1 adoption — funding. But there should be money available for the states later in 2015. The FCC recently conducted an auction for Advanced Wireless Services (AWS) spectrum that raised more than $40 billion for the U.S. Treasury. Congress allocated $115 million of this total to fund an NG 9-1-1 grant program sponsored by the National Highway Traffic Safety Administration’s (NHTSA) National 911 Office, the same office that awarded $40 million in E9-1-1 grants to 30 states in 2009. States likely will be able to begin applying for funding later this year.

Wesley K. Wright is an attorney at Keller and Heckman. Wright joined Keller and Heckman in 2006 and practices in the areas of telecommunications and transactional law. He worked briefly as an attorney for Intrado, but returned to Keller and Heckman in May 2014 and handles a host of wireless spectrum and 9-1-1-related issues for critical infrastructure companies and governmental entities. Contact Wright at wright@khlaw.com.

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