Federal Communications Commission FCC 08-171 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems 911 Call Processing Modes Joint Petition for Declaratory Ruling on 911 Call Processing Modes by AT&T Wireless Services, Inc., et al.; Petition for Declaratory Ruling of Wireless Consumers Alliance, et al. ) ) ) ) ) ) ) ) ) ) ) ) CC Docket No. 94-102 WT Docket No. 99-328 ORDER Adopted: July 23, 2008 Released: July 24, 2008 By the Commission: I. INTRODUCTION 1. In the E911 Second Report and Order, the Commission adopted rules to improve 911 call completion and established guidelines for 911-only call processing modes.1 In the course of litigation concerning this order, on September 20, 2006, the U.S. District Court for the Northern District of Illinois (Court) ordered the defendants in a class action lawsuit, sixteen wireless handset manufacturers and telecommunications carriers (the Joint Petitioners), to file a petition for declaratory relief with the Commission for resolution of seven issues raised by the defendants in their filings with the Court.2 The Court referred these issues under the doctrine of primary jurisdiction for resolution by the Commission. In this Order, we respond to these seven issues. II. BACKGROUND 2. In the E911 Second Report and Order, the Commission adopted rule section 22.921, which requires that “mobile telephones manufactured after February 13, 2000 that are capable of operating in analog mode . . . must incorporate a special procedure for processing 911 calls.” 3 Further, the special procedure “must recognize when a 911 call is made and, at such time, must override any programming in the mobile unit that determines the handling of a non- 1 Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, Second Report and Order, 14 FCC Rcd 10954 (1999) (E911 Second Report and Order). 2 In re Wireless Telephone 911 Calls Litigation, MDL-1521, Memorandum Opinion and Order, entered Sept. 20, 2006 (Referral Order). 3 47 C.F.R. § 22.921. Federal Communications Commission FCC 08-171 2 911 call and permit the call to be transmitted through the analog system of other carriers.”4 The requirement that the handset attempt to connect a 911 call through other analog carriers is intended to avoid the “lock-in” problem, where a handset continually tries to complete the call with the preferred carrier (i.e., the handset “locks in” to the preferred carrier) even when, for example, the handset is located in a dead spot in the preferred carrier’s service area.5 The E911 Second Report and Order did not mandate a particular special procedure, but required handset manufacturers to incorporate “one or more of the 911 call system selection processes endorsed or approved by the FCC.”6 3. The Commission approved three specific proposed “special procedures” in the E911 Second Report and Order, including a method referred to as Automatic A/B – Intelligent Retry (A/B – IR).7 Integral to the approved A/B – IR method was the requirement that “the handset should seek to complete the call with the non-preferred cellular carrier if the preferred cellular carrier has not successfully delivered the call to the landline carrier within 17 seconds after the call is placed.”8 The E911 Second Report and Order also set out general principles for other acceptable modes and encouraged the development of further improvements in 911 call completion.9 4. The Commission delegated authority to the Wireless Telecommunications Bureau (the Bureau) to consider and approve new or modified 911 call processing modes.10 The Bureau responded to three specific requests. In the January 2000 Nokia Order, the Bureau granted Nokia’s request to apply the A/B – IR method to multimode (analog and digital) phones.11 In the February 2000 Ericsson Order, the Bureau similarly granted Ericsson’s request to apply the A/B – IR method to multimode phones, although with a different ranking of carriers and systems.12 In the February 2003 Motorola Order, the Bureau approved Motorola’s modified call processing method, whereby for dropped 911 calls the handset would remain for five minutes on the paging channel of the carrier that last served the call, rather than automatically retrying the dropped call.13 5. In 2002, the Wireless Consumers’ Alliance and the individual plaintiffs in the underlying lawsuit (jointly “WCA”) filed a series of lawsuits, seeking judgment that certain wireless handset manufacturers have failed to comply with Commission requirements regarding 4 Id. 5 E911 Second Report and Order, 14 FCC Rcd at 10961-62 ¶ 16. 6 See 47 C.F.R. § 22.921. 7 E911 Second Report and Order 14 FCC Rcd at 10965-66 ¶ 27. 8 Id. at 10971-72 ¶ 41. 9 These basic principles are: (1) the most basic goal is to improve the 911 call completion rate so far as practicable; (2) it is often desirable to complete 911 calls, where possible, via the preferred cellular carrier; (3) a 911 call processing mode should not disrupt overall operation of 911 service; (4) the 911 call processing mode should address the lock-in problem in a reasonable and effective way; and (5) the benefits of the calling mode to public safety should outweigh any additional costs. Id. at 10966 ¶¶ 28, 29. 10 Id. at 10993 ¶ 88. 11 911 Call Processing Modes, WT Docket No. 99-328, Order, 15 FCC Rcd 1911 (WTB 2000) (Nokia Order). 12 911 Call Processing Modes, WT Docket No. 99-328, Order, 15 FCC Rcd 15671 (WTB 2000) (Ericsson Order). 13 911 Call Processing Modes; Motorola Request for Approval of Modified 911 Call Processing Mode, WT Docket No. 99-328, Order, 18 FCC Rcd 2500 (WTB 2003) (Motorola Order). Federal Communications Commission FCC 08-171 3 911 call processing.14 These cases were consolidated in the Court.15 The Joint Petitioners sought partial summary judgment from the Court, which then stayed the proceedings pursuant to the doctrine of primary jurisdiction, and ordered the Joint Petitioners to seek Commission resolution of seven issues raised in their summary judgment briefing.16 As specified by the Court, these seven issues are as follows: (1) Is a wireless handset manufacturer in compliance with 47 C.F.R. § 22.921 if it utilizes a call-processing method, or some combination of methods, proposed by other wireless handset manufacturers and approved by the FCC? (2) Are handsets manufactured on or before the effective date of the Second Report and Order (or as to any particular defendant, any extensions granted to that defendant) subject to the FCC’s 911 call-processing compliance requirements? (3) Do the FCC’s 911 call processing requirements apply to handsets manufactured for customers outside of the United States? (4) Does the 17-second time limit in the Second Report and Order apply only to the initial attempt to connect a 911 call on the preferred carrier’s system, or does it also apply to any further attempts to connect the call? (5) Does the Second Report and Order require handsets to both switch and connect to the non-preferred carrier in any particular time period (including 17 seconds)? (6) Is a handset utilizing one of the 911 call-processing methods approved in the Motorola Order and in the Nokia Order required to automatically retry a dropped call? (7) Is a handset that automatically retries a dropped 911 call required to retry on the non- preferred carrier, or may it retry the dropped 911 call on the preferred carrier?17 6. On October 3, 2006, Joint Petitioners filed a petition for declaratory ruling asking the Commission to resolve the seven issues in conformance with their understanding.18 On December 22, 2006, WCA also filed a petition for declaratory ruling, asking the Commission to resolve the same issues in conformance with its understanding.19 14 The suits seek relief including handset recalls, damages, and injunctions. 15 See Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems; 911 Call Processing Modes; Petition for Declaratory Ruling Regarding Cellphone 911 Requirements in Response to Referral from the United States District Court of the Northern District of Illinois by Wireless Consumers Alliance et al.; Joint Petition for Declaratory Ruling on 911 Call Processing Modes, CC Docket No. 94- 102, WT Docket No. 99-328, Order, 19 FCC Rcd 13448, 13449 ¶ 4 (2004) (Clarification Order). In the Clarification Order, the Commission previously responded to a primary jurisdiction referral from the Court on certain aspects of the A/B – IR method. 16 Referral Order at 1. 17 Id. at 2. 18 Joint Petition for Declaratory Ruling (filed Oct. 3, 2006) at 1-3 (Joint Petition). 19 Petition for Declaratory Ruling (filed Dec. 22, 2006) at 2-5 (WCA Petition). Joint Petitioners subsequently filed a response to the WCA Petition. See Letter from Terrence Dee, Esq., on behalf of Defendant Petitioners, to Marlene H. Dortch, Secretary, Federal Communications Commission (dated Feb. 9, 2007). Furthermore, in support of its Petition, WCA submitted certain information under a request for confidential treatment pursuant to Section 0.459 of the Commission’s rules. In this regard, WCA filed a redacted version of its Petition on January 19, 2007. Because this Order discusses only that information made public by WCA, we need not rule on WCA’s request at this time. Until we so rule, we will honor WCA’s request for confidential treatment. See 47 C.F.R. § 0.459(d)(1). Federal Communications Commission FCC 08-171 4 III. DISCUSSION 7. We have reviewed the seven questions posed by the Court in the Referral Order. In the discussion that follows, we provide our responses to each of these questions. A. Is a wireless handset manufacturer in compliance with 47 C.F.R. § 22.921 if it utilizes a call processing method, or some combination of methods, proposed by other wireless handset manufacturers and approved by the FCC? 8. Section 22.921 provides in relevant part that “[m]obile telephones manufactured after February 13, 2000 that are capable of operating in the analog mode . . . must incorporate a special procedure for processing 911 calls. . . . This special procedure must incorporate one or more of the 911 call system selection processes endorsed or approved by the FCC.”20 Joint Petitioners contend that this rule does not limit a wireless handset manufacturer to the three call processing methodologies approved in the E911 Second Report and Order, or to any approved methods proposed by that manufacturer. Rather, they assert that a wireless handset manufacturer is also in compliance with section 22.921 if it utilizes either a call processing method, or some combination of methods, that has been proposed by other wireless handset manufacturers and approved by the FCC.21 WCA, however, argues that the Commission has never ruled that one manufacturer may use a processing method that it has approved for another manufacturer, much less that section 22.921 allows handsets to combine different aspects of different approved methods.22 9. In the E911 Second Report and Order, the Commission specifically stated that “it is not our intent to limit the development and improvement of 911 call completion modes, so long as they meet the criteria we have established. We wish to encourage the development of new and improved methods of making wireless technology enhance public safety.”23 Accordingly, the Commission delegated authority to the Bureau to act on requests “to incorporate new or modified 911 call processing modes.”24 It is therefore clear that the E911 Second Report and Order does not by its terms limit the 911 call processing “special procedure” to the three methods approved in that order. Indeed, in each of the three subsequent orders approving additional special procedures for 911 call processing, the Bureau held that those procedures met the fundamental principles on which section 22.921 is based.25 Given the basic principle of encouraging new and improved methods for 911 call processing, and the fact that the three post-order, approved methods satisfied the fundamental criteria set forth in the E911 Second Report and Order, a wireless handset manufacturer is in compliance with section 22.921 if it utilizes a call processing method proposed by other wireless handset manufacturers and approved by the Commission. 20 47 C.F.R. § 22.921. 21 Joint Petition at 10-14. 22 WCA Petition at 3. 23 E911 Second Report and Order, 14 FCC Rcd at 10966 ¶ 29. 24 Id. at 10995 ¶¶ 88, 97. 25 Nokia Order, 15 FCC Rcd at 1915 ¶ 11; Ericsson Order, 15 FCC Rcd at 15674 ¶ 6; Motorola Order, 18 FCC Rcd at 2501 ¶ 6. Federal Communications Commission FCC 08-171 5 10. Section 22.921 does not explicitly indicate whether the phrase “[t]his special procedure must incorporate one or more of the 911 call system selection processes endorsed or approved by the FCC” means each system selection processes as a whole or in a combination of parts of system selection processes. However, as already noted, the E911 Second Report and Order announced basic principles that any analog cellular 911 call processing mode should satisfy, approved three call processing procedures any manufacturer could use, and delegated authority to the Bureau to approve additional procedures any manufacturer could use. Again, this was intended “to encourage the development of new and improved methods of making wireless technology enhance public safety.”26 Moreover, the E911 Second Report and Order specifically held that “our rules do not bar manufacturers from electing to incorporate more than one calling mode, or some combination of modes, if that is a cost-effective design and marketing solution …”27 11. Taken together, we find that these elements of the E911 Second Report and Order indicate a clear Commission intent to allow the incorporation of different parts of different approved modes. Accordingly, we conclude that a wireless handset manufacturer is in compliance with section 22.921 if it utilizes a call processing method, or some combination of methods, proposed by other wireless handset manufacturers and approved by the Commission, provided: (1) the new procedure is consistent with the core principles established in the E911 Second Report and Order, and (2) the elements used from each approved method are identical to that approved method. In all other cases, the new procedure requires specific Commission approval. B. Are handsets manufactured on or before the effective date of the Second Report and Order (or as to any particular defendant, any extensions granted to that defendant) subject to the FCC’s 911 call processing compliance requirements? 12. Section 22.921 provides in relevant part that: “Mobile telephones manufactured after February 13, 2000 … must incorporate a special procedure for processing 911 calls.” (The effective date of the E911 Second Report and Order was February 13, 2000.) WCA contends that “manufactured” means both physically assembled and loaded with the carrier’s software.28 It also argues that handsets for which an application for type acceptance was filed on or after November 13, 1999, must also comply with the 911 call processing compliance requirements even if manufactured prior to February 13, 2000.29 Joint Petitioners assert that both contentions conflict directly with the plain language of section 22.921.30 We agree with the Joint Petitioners. 26 E911 Second Report and Order 14 FCC Rcd at 10966 ¶ 29. 27 Id. at 10990 ¶ 82 (emphasis added). 28 WCA Petition at 3. 29 Id. 30 Joint Petition at 15. Federal Communications Commission FCC 08-171 6 13. We interpret the word “manufactured” as used in the rule to have its plain meaning, i.e. the process by which the manufacturer made its handset. Contrary to WCA’s contentions, there is no additional meaning, including any requirement that the device must be loaded with software to be considered “manufactured.” Furthermore, there is no correlation between the meaning of “manufactured” and the timing of the filing of an application for equipment authorization. The E911 Second Report and Order specified that “[a]ny application for equipment authorization of an analog cellular telephone submitted six months after the adoption date of this Order must include a statement and a description of the approved 911 call processing method used by the device.”31 However, this requirement simply was imposed to ensure that manufacturers began submitting equipment approval applications sufficiently in advance to be sure that handsets manufactured after the effective date would be in compliance. 14. Accordingly, we find that handsets manufactured, in the plain sense of the word as explained above, on or before the effective date of the E911 Second Report and Order (or as to any particular defendant, any extensions granted to that defendant) are not subject to the FCC’s 911 call processing compliance requirements, namely, section 22.921. C. Do the FCC’s 911 call processing requirements apply to handsets manufactured for customers outside of the United States? 15. Pursuant to § 302(c) of the Communications Act of 1934, as amended, the Commission’s rules “shall not be applicable . . . to devices . . . manufactured solely for export . . .”32 WCA, however, contends that the word “customers” in the Court’s question (set forth above) is ambiguous because a foreign purchaser of a handset might resell it in the U.S.33 Along with the Joint Petitioners, we do not see any ambiguity.34 Handsets sold in the United States, whether or not they are first sold to customers outside of the United States, must comply with all applicable regulations, including section 22.921. If they are not section 22.921 compliant at the time they are sold to a foreign customer, they must become so prior to sale in the United States. Accordingly, we find that the Commission’s 911 call processing requirements do not apply to handsets manufactured for customers outside of the United States. 31 E911 Second Report and Order, 14 FCC Rcd at 10992 ¶ 88 32 47 U.S.C. § 302a(c). 33 WCA Petition at 39-40. 34 See Joint Petition at 16. Federal Communications Commission FCC 08-171 7 D. Does the 17-second time limit in the Second Report and Order apply only to the initial attempt to connect a 911 call on the preferred carrier’s system, or does it also apply to any further attempts to connect the call? 16. We agree with the Joint Petitioners that the 17 second time limit adopted in the E911 Second Report and Order focuses on the initial call set-up attempts with the preferred carrier.35 In other words, the Commission was focused on the amount of time a handset would spend attempting to connect with the preferred carrier before attempting to complete the call with another cellular carrier: “it is possible that in a small percentage of cases, call set-up would take much longer under the IR as proposed, because the algorithm permits up to three attempts to complete the call with the preferred carrier before switching to the non-preferred carrier. This could lead callers to terminate 911 calls that eventually would have been completed. To minimize this possibility, while also allowing a reasonable period for initial call set-up to the non-preferred carrier, we conclude that a time limit should be placed on the initial attempt to set- up the call with the preferred carrier.”36 The E911 Second Report and Order did not address the applicable time limit for call set-up attempts following the initial call setup attempts with the preferred carrier. It thus did not apply the 17 second time limit to call setup attempts following the initial call set-up attempt. 17. In its petition, WCA argues that pursuant to the E911 Second Report and Order if, using the A/B-IR method, the initial call attempt to the preferred carrier and the following attempt to call the non-preferred carrier both fail, “the handset would continue to rescan and reattempt placing the call with both the preferred and the non-preferred carrier, using the same algorithm …”37 WCA argues that this means that the 17-second requirement applies to all attempted calls because that requirement is inherent in the algorithm.38 WCA, however, misquotes the relevant language from the E911 Second Report and Order, and misconstrues its meaning.39 In describing how, under the A/B-IR method, a handset would make repeated attempts to place a call, this language refers to “algorithms” in the plural, not “algorithm” in the singular: “[T]he handset would continue to rescan and reattempt placing the call with both the preferred and the non-preferred carrier, using the same algorithms.”40 With this language the Commission expressly contemplated that there could be one algorithm for the initial call attempt with the preferred carrier and another algorithm for placing the call with the non-preferred carrier, which undercuts WCA’s argument that the 17-second time limit is “inherent” in the “algorithm” for any further attempts to connect the 911 call. As noted above, in applying the 17- second time limit, the E911 Second Report and Order focuses only on the set of instructions that a handset follows to connect a 911 call on the preferred carrier’s system, not on any further attempts to connect the 911 call, as set forth in the proposed A/B-IR. Accordingly, the 17- second time limit applies only to the initial attempt to connect a 911 call on the preferred carrier’s system, not to any further attempts to connect the call. 35 See id. at 17-18. 36 See E911 Second Report and Order, 14 FCC Rcd at 10971 ¶ 40. 37 WCA Petition at 27 (quoting E911 Second Report and Order, 14 FCC Rcd at 10968 ¶ 33). 38 Id. at 27-29. 39 See, e.g., WCA Petition at 27-29. 40 E911 Second Report and Order, 14 FCC Rcd at 10968 ¶ 33 (emphasis added). Federal Communications Commission FCC 08-171 8 E. Does the Second Report and Order require handsets to both “switch and connect” to the non-preferred carrier in any particular time period (including 17 seconds)? 18. WCA quotes language from the E911 Second Report and Order and the Clarification Order which states that, in the event that a wireless handset fails to connect with the preferred carrier, it must variously “seek to complete the call with,” “switch to” or “retry an initial 911 call attempt with” the non-preferred carrier.41 WCA argues that this quoted language means that the handset must both switch and connect to the non-preferred carrier.42 The Joint Petitioners contend that the language of those two orders in fact imposes no connection requirement.43 We agree with the Joint Petitioners. 19. In the E911 Second Report and Order, the Commission concluded that “a time limit should be placed on the initial attempt to set-up the call with the preferred carrier,” and that 17 seconds would be “a reasonable and achievable maximum time period.”44 In the Clarification Order, the Commission further explained that “[t]he 17 second time limit applies to the initial ‘call set-up’ attempts between the handset and the preferred carrier’s base station, not to the further stages of call processing (i.e., delivery of the call to the landline from the base station).”45 Thus the 17-second condition only requires that the handset terminate its initial call set-up attempt with the preferred carrier and retry to set up the 911 call with the non-preferred carrier if the handset is not assigned a voice channel by the preferred carrier within 17 seconds. Accordingly, the Commission’s orders do not require handsets to both “switch and connect” to the non-preferred carrier during the initial call set-up attempt. F. Is a handset utilizing one of the 911 call processing methods approved in the Motorola Order and Nokia Order required to automatically retry a dropped 911 call? 20. The E911 Second Report and Order requires that handsets use an approved method, including the A/B – IR method that was among the three methods approved in that order. The A/B – IR method included the automatic retry feature. Thus, the Commission required automatic retry for handsets using the A/B – IR method. 41 See WCA Petition at 21. 42 See id. at 21-22. 43 See Joint Petition at 18-19. 44 E911 Second Report and Order, 14 FCC Rcd at 10971 ¶¶ 40, 41. 45 Clarification Order, 19 FCC Rcd at 13454-55 ¶ 20. Federal Communications Commission FCC 08-171 9 21. WCA argues that the 2000 Nokia Order did not change the requirement in the A/B – IR method approved in the E911 Second Report and Order requiring automatic retry of a dropped call.46 Joint Petitioners assert, however, that “[n]owhere in its filings did Nokia indicate that [its] proposed methodology would automatically re-attempt a dropped 911 call.47 We agree with Joint Petitioners. Inherent in the Nokia Order was approval of the entire alternate 911 call completion methodology proposed by Nokia, which did not include automatic retry.48 Rather, under Nokia’s proposal, a dropped call is returned to an idle or ready mode.49 Accordingly, the method approved by the Bureau in the Nokia Order did not require automatic retry. 22. In the 2003 Motorola Order, the Bureau approved a different version of the A/B – IR method. In this modified version, for calls terminated prematurely, without action by the caller or call-taker, for example because of loss of signal, handsets do not immediately attempt to complete the call using alternate channels and systems until the call is completed. Instead, the handset remains on a paging channel, facilitating call back and the identification of unintentional 911 calls by public safety answering point dispatchers.50 Thus, following the Motorola Order, handsets using or incorporating the method approved therein are not required to automatically retry a dropped 911 call. G. Is a handset that automatically retries a dropped 911 call required to retry on the non-preferred carrier, or may it retry the dropped 911 call on the preferred carrier? 23. With respect to the A/B – IR method, the E911 Second Report and Order stated that “[i]nitially, the handset would seek to complete the call with the preferred carrier. . . . If this initial call attempt via the preferred carrier should fail, the handset would attempt to complete the call via the non-preferred carrier. . . . If a voice channel is established but the 911 call terminates for some reason other than the user ending the call or the base station releasing the call – for example, if the handset moves into a coverage gap or encounters some other transmission problem – the handset would automatically reattempt the call using the same algorithm.”51 This indicates that the entire calling sequence would begin anew, i.e., the handset would again first try to call using the preferred carrier. Moreover, the Clarification Order noted that where the handset considers a call to have been completed, e.g., in a dropped call situation, “the next 911 call attempt would be initiated with the preferred carrier.”52 Accordingly, a handset that automatically retries a dropped 911 call may retry the dropped 911 call on the preferred carrier. Indeed, from our reading of their petitions, we find that neither WCA nor the Joint Petitioners actually disagree on this specific question.53 46 WCA Petition at 30. 47 Joint Petition at 20. 48 See Nokia Order, 15 FCC Rcd at 1916 ¶ 13. 49 See Letter from David Siddall, Counsel to Nokia, to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, WT Docket No. 99-328, Attachment at 8 (filed Nov. 10, 1999). 50 Id. at 2501 ¶ 4. 51 E911 Second Report and Order, 14 FCC Rcd at 10968 ¶ 33. 52 Clarification Order, 19 FCC Rcd at 13448 ¶ 27. 53 See Joint Petition at 22-23; WCA Petition at 5. Federal Communications Commission FCC 08-171 10 IV. ORDERING CLAUSES 24. IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i) and Section 1.2 of the Commission’s rules, 47 C.F.R. § 1.2, that the Petition for Declaratory Ruling filed by the Joint Petitioners IS GRANTED IN PART AND DENIED IN PART to the extent indicated herein. 25. IT IS FURTHER ORDERED, that the Petition for Declaratory Ruling filed by the Wireless Consumers Alliance, et al. IS GRANTED IN PART AND DENIED IN PART to the extent indicated herein. 26. IT IS FURTHER ORDERED, that the Commission’s Office of Managing Director, Office of the Secretary, shall send a copy of this Order to the United States District Court, Northern District of Illinois. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary