WASHINGTON-The lawyer representing rural carriers hoping that a federal appeals court will overturn the enhanced 911 mandate because of the deletion of a cost-recovery mechanism was cautiously optimistic following oral argument last week notwithstanding the intense questioning he received.
“They were clearly disposed to be against us but the analogy clearly began to grow on them,” said Thomas P. Van Wazer.
The analogy Van Wazer is hanging his hat on is that E911 is a contractual item-much the same as buying an ambulance-and public-safety answering points should be required to pay carriers to deploy it.
After the Federal Communications Commission rejected the rural carriers’ request to review its rules removing the cost-recovery mechanism, the Rural Cellular Association, United States Cellular Corp. and Corr Wireless Communications L.L.C. appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The Association of Public-safety Communications Officials International Inc. entered the case on the side of the FCC but did not participate in oral argument.
The two sides have battled over E911 implementation since the early 1990s when the FCC noted the lack of wireless E911 services was becoming a problem as more people used wireless phones to dial for help. Initially, the FCC established rules that called for E911 services to be phased in, but carriers had six months after receiving a request from a PSAP to deploy services as long as states put a cost-recovery method in place.
In 1999, only a few places had deployed the initial phase of wireless 911 service, in part because few states had cost-recovery systems in place. In order to spur more E911 deployments, the FCC in late 1999 dropped the cost-recovery requirement.
Van Wazer was subjected to a constant barrage of questions from two of the three members of the panel. The questions centered on why the E911 regulations were different from other safety regulations imposed by federal agencies. The judges seemed increasingly unsatisfied with Van Wazer’s claim that it was different because PSAPs have to request E911 services before carriers are required to deploy them. This, in his view, made it a contractual relationship, not a regulatory mandate.
The impact on the consumer of a locally imposed tax vs. a rate increase was on the mind of Judge Merrick B. Garland. Garland asked whether the impact would be the same for the consumer if the state or the locality was to impose a line-item tax on each individual carrier’s customer bills to recover the costs of deploying E911 or if the carrier raised its rates.
Van Wazer agreed there would be no difference to the end user but noted that “before this order came out, the PSAP refused to order the service.”
Rural carriers are concerned their customers will be lured away by nationwide carriers who will be able to implement E911 without raising rates.
“Rural carriers will pay a disproportionately high cost [to deploy this service and yet] the FCC refuses to bridge the difference between rural and urban carriers,” said Van Wazer. Rural carriers would like E911 funds to be pooled so that all carriers-and their customers-pay the same for E911, he said.
Another issue before the court is whether the FCC conducted a proper review pursuant to the Regulatory Flexibility Act.
The Small Business Administration warned the FCC last month that it may have violated the Regulatory Flexibility Act-a law meant to protect small businesses from burdensome regulation-when it removed the cost-recovery mechanism. A spokeswoman for the FCC’s Wireless Telecommunications Bureau said the FCC’s Office of Business Opportunities reviews all commission orders for RFA compliance.
While Van Wazer was unceasingly grilled, the FCC did not fair much better. Roberta L. Cook arguing for the FCC, was forced to admit that the petition for reconsideration stage was the first opportunity for Corr Wireless to claim that E911 costs could be recovered through the universal-service fund because the FCC removed the cost-recovery mechanism without a formal rule-making procedure. The FCC had denied Corr Wireless’ reconsideration petition saying the universal-service issue was a new issue and couldn’t be raised at the recon petition stage. Cook said Corr should have filed a petition for rule making.
