Cybertelecom Federal Internet Law & Policy An Educational Project

VoIP :: 911 :: Regulatory Proceedings

Litigation

• Nuvio Corporation v. FCC, No. 05-1248, 473 F.3d 302 (DC Cir Dec. 15, 2006) Affirming FCC Order
  • Nuvio v FCC (DC Cir) (VoIP 911), DC Cir 12/19/2006
  • Filed on 07/11/2005
  • Nuvio Motion to Stay Denied 11/15/05. Briefing schedule has not been released as of 12/15/2005.
  • Nuvio Files Appeal of FCC VoIP E911 Order, Nuvio 8/16/2005
  • Nuvio challenges FCC Internet phone rules for 911 (Reuters), Yahoo! 8/16/2005
  • Tech, VoIP Leaders Should Support Nuvio, AdvancedIPpipeline 8/19/2005

• pulver.com comments on the FCC issued E911 report
• NENA VoIP Packet Committee

42. As discussed above, we preempt the Minnesota Vonage Order because it imposes entry and other requirements on Vonage that impermissibly interfere with this Commission’s valid exercise of authority. As Vonage indicates in its Petition, Minnesota includes as one of its entry conditions the approval of a 911 service plan “comparable to the provision of 911 service by the [incumbent] local exchange carrier.” 145 In the Minnesota Vonage Order, the Minnesota Commission specifically subjected Vonage to this requirement. 146 Because Minnesota inextricably links pre-approval of a 911 plan to becoming certificated to offer service in the state, the application of its 911 requirements operates as an entry regulation. Vonage explains that there is no practicable way for it to comply with this requirement: it cannot today identify with sufficient accuracy the geographic location of a caller, and it has not obtained access in all cases to incumbent LEC E911 trunks that carry calls to specialized operators at public safety answering points (PSAPs). 147 Under the Minnesota “telephone company” rules, therefore, this requirement bars Vonage from entry in Minnesota . To that extent, this requirement is preempted along with all other entry requirements contained in Minnesota ’s “telephone company” regulations as applied to DigitalVoice. 148 Although we preempt Minnesota from imposing its 911 requirements on Vonage as a condition of entry, this does not mean that Vonage should cease the efforts it has undertaken to date and we understand is continuing to take both to develop a workable public safety solution for its DigitalVoice service and to offer its customers equivalent access to emergency services.

43. There is no question that innovative services like DigitalVoice are having a profound and beneficial impact on American consumers.149 While we do not agree with unnecessary economic regulation of DigitalVoice designed for different services, we do believe that important social policy issues surrounding services like DigitalVoice should be considered and resolved.150 Access to emergency services, a critically important public safety matter, is one of these important social policy issues. In this proceeding, Vonage has indicated that it is devoting substantial resources toward the development of standards and technology necessary to facilitate some type of 911 service, working cooperatively with Minnesota agencies and other state commissions, public safety officials and PSAPs, the National Emergency Number Association (NENA), and the Association of Public-Safety Communications Officials (APCO).151 Moreover, it has demonstrated that it is offering its version of 911 capability to all its customers, including those in Minnesota, and has provided us information indicating what actions its customers must take to activate this 911 capability.152 We are also aware that Vonage recently announced the successful completion of an E911 trial in Rhode Island, a state that has not, to our knowledge, attempted to regulate DigitalVoice. In collaboration with the State of Rhode Island, Vonage has developed a technical solution to deliver a caller’s location and call back number to emergency service personnel for 911 calls placed in that state by DigitalVoice users.153 We fully expect Vonage to continue its 911 development efforts and to continue to offer some type of public safety capability during the pendency of our IP-Enabled Services Proceeding.154

44. We emphasize that while we have decided the jurisdictional question for Vonage’s DigitalVoice here, we have yet to determine final rules for the variety of issues discussed in the IP-Enabled Services Proceeding. While we intend to address the 911 issue as soon as possible, perhaps even separately, we anticipate addressing other critical issues such as universal service, intercarrier compensation, section 251 rights and obligations,155 numbering, disability access, and consumer protection in that proceeding. 156

45. Furthermore, we acknowledge that a U.S. District Court in New York has recently ordered Vonage “to continue to provide the same emergency 911 calling services currently available to Vonage customers” within that state157 and to “make reasonable good faith efforts to participate on a voluntary basis” in workshops pertaining to the development of VoIP 911 calling capabilities.158 Because DigitalVoice is a national service for which Vonage cannot single out New York “intrastate” calls (any more than it can Minnesota “intrastate” calls), as a practical matter, the District Court’s order reaches DigitalVoice wherever it is used.159 Thus, we need not be concerned that as a result of our action today, Vonage will cease its efforts to continue developing and offering a public safety capability in Minnesota. The District Court order ensures that these efforts must continue while we work cooperatively with our state colleagues and industry to determine how best to address 911/E911-type capabilities for IP-enabled services in a comprehensive manner in the context of our IP-Enabled Services Proceeding.160

145See Vonage Petition at 25 (citing Minn. Rule § 7812.0550 subp. 1).

146See Minnesota Vonage Order at 8.

147See Vonage Petition at 8-9, 24-25.

148See supra paras. 20- 22 (explaining preemption of entry requirements). Indeed, Vonage notes in its petition that “[I]f the Commission preempts Minnesota’s certificate requirement . . . this issue [911 comparability to an incumbent LEC] will be moot.” See Vonage Petition at 25. Similarly, to the extent the Minnesota Commission demands payment of 911 fees as a condition of entry, that requirement is preempted.

149See VON Coalition Aug. 19 Ex Parte Letter at 4.

150 As explained above, these issues are currently being considered in pending proceedings before this Commission. See supra note 46. See also, e.g., Minnesota Commission Comments at 4; Surewest Comments at 12; Texas 911 Agencies Comments at 2-3 (urging the Commission to consider public safety issues related to VoIP services).

151 See NENA Reply at 1-2; Vonage Aug. 13 Ex Parte Letter at 1-2; Minnesota Statewide 911 Program Comments at 4.

152 In offering its “911” capability to its customers, Vonage has provided the Commission information regarding how and what it tells its customers about its limited 911 capabilities such that its customers are fully aware of those limitations when they subscribe to the service and clearly understand that it is not a comparable emergency service to the 911 capability they obtain with local exchange service. We fully expect Vonage to continue providing customers information such as this about its “911” capability. See Vonage Oct. 1 Ex Parte Letter at 3-4 & Exhibit 10.

153 See Letter from William B. Wilhelm, Jr. and Ronald W. Del Sesto, Jr., Counsel for Vonage, to Marlene H. Dortch, Secretary, FCC, WC Docket Nos. 03-211, 04-36, at 1 (filed Oct. 14, 2004).

154 We look beyond Vonage’s efforts of today, however, toward work that remains to be done in the area of 911 and the opportunities that this new technology presents for public safety. To that end, we are aware of the six principles NENA has advanced: (1) establish a national E911 VoIP policy; (2) encourage vendor and technology neutral solutions and innovation; (3) retain consumer service quality expectations; (4) support dynamic, flexible, open architecture system design process for 911; (5) develop policies for 911 compatible with the commercial environment for IP communications; and (6) promote a fully funded 911 system. See National Emergency Number Association, E9-1-1, Internet Protocol & Emergency Communications, Press Release ( Mar. 22, 2004). We applaud NENA’s vision in establishing these principles to support a process to “promote a fully functional 9-1-1 system that responds any time, anywhere from every device.” See id.. We endorse these principles because they provide a sound blueprint for the development of a national 911 solution for VoIP services and we encourage all VoIP providers and industry participants to work toward their realization.

155 We note that nothing in this Order addressing the Commission’s jurisdictional determination of or regulatory treatment of particular retail IP-enabled services impacts competitive LEC access to the underlying facilities on which such retail services ride. See Letter from Jason D. Oxman, General Counsel, Association for Local Telecommunications Services, to Marlene Dortch, Secretary, FCC, WC Docket Nos. 04-29, 04-36 (filed Nov. 2, 2004).

156 See supra note 46.

157 See New York Preliminary Injunction at 3. We note that Vonage’s “emergency 911 calling service” is not a service that is provided pursuant to the New York Commission’s rules or any other state commission’s rules. This is a service Vonage has voluntarily undertaken in response to consumer demand.

158 See New York Preliminary Injunction at 4.

159 We recognize that Vonage’s 911 capability relies on the cooperation of its customers in accurately registering and re-registering their user location when they move about with the service.

160 See IP-Enabled Services Proceeding, 19 FCC Rcd at 4897-901, paras. 51-57.

Vonage Holdings Corporation Petition for Declaratory Ruling Concerning an Order of the Minnesota Public Utilities Commission, WC Docket No. 03-211, Memorandum Opinion and Order (FCC Nov. 12, 2004)

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Impact of IP Telephony on Public Safety: In California, years of state funded improvements have been made to 911 service to enable telecommunications providers and first responders to ensure the safety of California customers. In addition, law enforcement utilizes its right under federal law to monitor telecommunications services to combat criminal activity. Exempting VoIP providers from regulation raises concerns about public safety and law enforcement activities in local communities. On the other hand, VoIP technologies offer the possibility to provide more detailed emergency information about some user locations, e.g. PBX users, than available with current technology.
-- Order instituting investigation on the Commission's own motion to determine the extent to which the public utility telephone service known as Voice over Internet Protocol should be exempted from regulatory requirements, CA PUC February 11, 2004

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10. One final word on this subject: now that this commission has backed off on regulating VoIP - at least until the FCC acts - VoIP providers should seek free market solutions to intercarrier compensation and 911 service issues.  When a VoIP call touches the Publicly Switched Telephone Network, there should be compensation to the network owner - at a rate agreed to by willing market participants.  Resolving the 911-service issue is even more important.  VoIP providers should not have to worry that agreeing to contract with a Basic Emergency Service Provider (in Colorado, Qwest) to offer customary 911 services will somehow suck it into regulation, at least in this state.  I strongly encourage VoIP providers to work out 911-service and intercarrier compensation agreements, to show that they are good corporate citizens.  And to show that traditional regulation is not necessary.
--In The Matter Of The Investigation Into Voice Over Internet Protocol (Voip) Services, Docket No. 03M-220T, Order Closing Docket ¶ 8 ( Colorado PUC Dec. 17, 2003) (Chairman Gregory E. Sopkin Specially Concurring)

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In order to formulate an informed, consistent regulatory policy, the Commission would like to obtain information about VOIP activity in Michigan . The Commission, therefore, requests comments on VOIP activity in Michigan on the following topics that may be affected by both state and federal law:
. . .
d. Access to emergency calling, including VOIP end users' unrestricted access to 9-1-1 , non-carrier charges for 9-1-1 access, and public safety answering points costs to geographically locate VOIP callers and provide a call back number.
. . .
g. The ability of VOIP services to provide abbreviated dialing (2-1-1, 3-1-1, 4-1-1, 7-1-1) programs and toll-free dialing (1+800) to end users.
-- -- U-14073 - Commission's Own Motion (investigation of VOIP) - (MI PUC 3/16/2004 ) HTML | PDF

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Should VoIP subscribers pay state and local emergency 911/E-911 surcharges since they make use of emergency response services.... Can VoIP providers provide subscribers with E911/911emergency service that is equivalent to that provided by traditional local exchange carriers? If not, what level of E911/911 emergency service is adequate to protect the health and safety of VoIP subscribers and others 22 who may use their telephones in an emergency?
-- In Re Vonage Holding Company Petition for a Declaratory Ruling Concerning the Order of the Minnesota PUC, WC Docket No. 03-211, Comments of the NY AG (Nov. 21, 2003)