CARRIERS CHALLENGE ‘STRICT LIABILITY’ OF E911 ENFORCEMENT

FCC delayed Phase 2 deadlines for medium (Tier 2) carriers and 13 months for smallest (Tier 3) carriers. Final implementation deadline of Dec. 31, 2005, for E911 Phase 2 caller location ability remained unchanged under order. Last fall, FCC adopted compliance plans for extended E911 implementation deadlines for 6 national wireless carriers. Most recent order granted limited relief to nonnational carriers, in part by noting that vendors and suppliers of network-based location technology typically gave priority to larger operators. Alltel’s petition said carrier had started to sell and activate automatic location information (ALI)- capable handsets and had begun upgrading networks that used Lucent and Nortel switches. Citing initial March 1, 2003, deadline to begin Phase 2 service for certain PSAPs and record of delays by some vendors in supplying equipment, Alltel stressed need for “safety valve” procedure. “Simply put, Alltel believes that it would be a waste of Commission and carrier resources to move directly to enforcement under strict liability prior to the Commission’s determination as to whether extraordinary circumstances justifying delay exist in the first instance,” it said. Carrier cited language in E911 order that indicated operators would be “deemed noncompliant” if they didn’t have Phase 2 service available under requirements. Order said assertions that vendors, manufacturers or others weren’t able to provide compliant products wouldn’t excuse noncompliance. FCC said timely actions taken with such vendors could be considered as possible mitigation factors when it came to enforcement. But Alltel pointed to Sec. 503(b) of Communications Act, which it said required Commission not to impose penalty until it issued notice of apparent liability.

Dobson said FCC’s stipulation that saying vendor couldn’t supply compliant products didn’t excuse missed deadlines “appears to establish a per se finding of liability by the Enforcement Bureau, particularly given that something so significant as unavailability of compliant equipment will only be considered a possible mitigation factor rather than excuse noncompliance.” It said “carriers are entitled to a real opportunity to counter a Commission determination of noncompliance.” Point of notice of apparent liability is to give company “the opportunity to show why it is not liable in the first instance,” Dobson said.

Cingular Wireless, Nextel and Verizon Wireless said issue of “strict liability” in context of E911 enforcement also was among concerns they had raised in petitions for reconsideration at FCC last fall. Those petitions still are pending. Earlier this year, FCC issued notice of apparent liability to AT&T Wireless for alleged violations of Phase 2 requirements on carrier’s GSM network. Carrier has asked FCC to reduce proposed forfeiture of $2.2 million “significantly” for alleged violations. “How the Commission applies its enforcement approach remains to be seen” on E911, industry source said, saying final order on AT&T’s alleged violations was being watched closely. Point of notice of apparent liability is that it provides opportunity for carrier to rebut certain factors on which Commission is basing allegations, source said. “The Commission -- whether knowingly or not -- framed an approach in the E911 context that sort of turns that on its head,” source said.

Meanwhile, carriers’ concerns that network equipment and location-capable handsets weren’t available to meet original Phase 2 deadlines was among factors being examined in FCC technical inquiry led by former Office of Engineering & Technology Chief Dale Hatfield. His report is expected to be released in Sept. It also will address issues such as required facility upgrades by LECs and other potential obstacles to deployment.

Such deployment obstacles were among issues raised in most recent round of quarterly E911 reports filed at FCC earlier this month. AT&T Wireless said equipment vendor Intrado had indicated database interfaces provided by certain LECs might not be available in time for testing to implement Phase 2 service to requesting PSAPs by Dec. 31. As result, PSAPs served by those LECs may not be able to receive Phase 2 service from AT&T Wireless by Dec. 31, carrier said. In other areas, AT&T Wireless said it had concerns whether some PSAPs would be ready to receive Phase 2 service by year-end, noting they had to be ready to do joint testing by Oct. 1. Cingular said no validated Enhanced Observed Time Difference of Arrival (E-OTD)-capable handsets were commercially available. E-OTD is hybrid handset-network solution for locating wireless 911 callers. Cingular said its vendors had told it they continued to believe E-OTD technology that met accuracy requirements would be available by year-end but it was still too early to tell whether accuracy benchmark of Oct. 2003 would be achieved. Verizon Wireless said in its quarterly report that LEC and PSAP readiness continued to be concerns. It said that “in many markets” SBC, BellSouth, Qwest and Sprint wouldn’t complete required database upgrades until fall. Meanwhile, public safety groups such as Assn. of Public-Safety Communications Officials also have raised concerns about LEC readiness at FCC and have asked Commission to take “hard look” at deployment track record of GSM carriers planning to use E-OTD technology.