CTIA Challenges FCC Authority to Place Text-to-911 Mandate on Carriers

CTIA’s comments read like a dress rehearsal for a legal challenge. The group challenged each of the grounds the FCC said it could claim if it imposes a mandate -- the Twenty-First Century Communications and Video Accessibility Act of 2010, Title III of the Communications Act and its ancillary authority. “Even if the FCC had authority to adopt the proposed rules, which it does not, it would be arbitrary and capricious for the agency to do so,” CTIA said (http://bit.ly/13RmnLs). “An agency order is arbitrary and capricious if it requires regulated entities to take an action which has not been shown to be technically feasible. But the proposed rules do just that, by requiring CMRS providers to route emergency text messages to the appropriate PSAP, even when a customer is roaming.”

The record so far “does not show that provision of text-to-911 while roaming is technically feasible,” CTIA added. “Absent a sufficient record of feasibility, it would be arbitrary and capricious for the FCC to adopt the rule as proposed."

Verizon and Verizon Wireless note that Verizon initiated a “groundbreaking” text-to-911 trial in Durham, N.C., more than a year ago. “Industry and public safety stakeholders already are coordinating text-to-911 deployment and, in Verizon’s experience, have been able to constructively and amicably resolve technical and other issues that have arisen,” Verizon said (http://bit.ly/XG5YWV). Verizon said even if the FCC imposed a mandate on carriers it would have little effect if PSAPs can’t accept text messages: “Implementation, the deployment of any 911-related capability, and its availability to consumers, will critically depend on the resources, capabilities and interest of state and local PSAPs.” Verizon said any rules that are imposed “must be technically and economically feasible and should apply uniformly to all wireless service providers, irrespective of size."

But the National Emergency Number Association said the record shows that the FCC can require that carriers and over-the-top text services use SMS for emergency texts as “an important transitional technology” between current-generation 911 and next-generation 911. “By now, the number and success of SMS-based Text-to-911 trials leaves little doubt that SMS can be used for emergency communications in appropriate circumstances without introducing unacceptable delays in response for consumers or increases in workload for PSAPs,” NENA said (http://bit.ly/Zjn2Ql). “Additionally, the record is clear as to the myriad benefits that Text-to-911 services like SMS can bring to consumers, generally, and individuals with disabilities, in particular.” NENA said “after careful consideration,” the group believes that an initial text-to-911 requirement should be imposed on “interconnected text services originated from devices such as mobile telephones, tablets, and other advanced mobile devices” but not “larger or less mobile devices such as laptop or desktop computers.” NENA believes “inherently mobile devices such as telephones, tablets, and advanced network/location aware devices (e.g., the iPod Touch) are much more likely to be sought out by the ordinary consumer in distress,” the filing said.

AT&T stressed an issue it raised repeatedly as the NPRM was being developed -- that any requirements must apply to over-the-top applications as well (CD Dec 10 p1). “Each such service should be able to accept and route emergency text messages to the appropriate public safety answering point using the agreed-upon dialing code or, when appropriate, return a bounce-back message alerting the end user of the unavailability of text-to-911,” AT&T said (http://bit.ly/XG7kkw).