On August 25, 2008, the FCC began a rulemaking proceeding to address VoIP carriers' rights and obligations to provide 911 and E911 services under the New and Emerging Technologies 911 Improvement Act (NET 911 Act), which President Bush signed into law on July 23, 2008. The NET 911 Act contains two key elements. First, it confirms VoIP carriers' obligation to provide 911 and E911 services to customers in accordance with FCC regulations. The existing regulations, adopted in the FCC's VoIP 911 Order (2005), impose certain 911 location information requirements on VoIP providers, and were the subject of an unsuccessful challenge in the D.C. Circuit. Second, it gives VoIP carriers the right to access the network "capabilities" necessary to provide these services, and to access them on the same rates, terms, and conditions as those capabilities are made available to wireless carriers. Since the first part of the Act has already been implemented, the rulemaking is designed to implement the second element.

Because the FCC's VoIP Order did not establish a right of access to the underlying 911 and E911 infrastructure, VoIP carriers have so far relied principally on commercial arrangements with local exchange carriers to comply with their 911 and E911 obligations. The NET 911 Act establishes this right by statute, but it does not define what "capabilities" must be made available or the precise terms on which VoIP carriers are entitled to access them. The Notice of Proposed Rulemaking seeks comment on these issues. In particular, the FCC asks whether it should adopt a uniform definition of the capabilities that must be made available or determine them on a case-by-case basis. The FCC also seeks comment on whether it should establish pricing standards for each of the capabilities and whether there are differences between the service requirements of wireless and VoIP carriers that would require either different capabilities or different terms.

The rulemaking proceeding strays from the specific issues covered by the Act in one important respect. The FCC has inquired about arrangements affecting "mobile VoIP" offerings--dual-mode CMRS/VoIP offerings from wireless providers. Such offerings (which use handsets that operate both within the CMRS wireless environment and over available Wi-Fi networks) currently use CMRS default routing and "last known cell" information for emergency VoIP calls within the home carriers' CMRS footprint. Because this information may not be available when callers roam outside of their home network and then use the Wi-Fi/VoIP capability for a 911 call, the FCC has asked whether it should require the host wireless network to provide this "last known cell" information to the roaming caller's carrier. In a broad request, the FCC "seek[s] comment generally on what capabilities [it] should require roaming partners to make available to mobile VoIP providers to ensure compliance with applicable 911 and E911 requirements." Commissioners Adelstein and McDowell questioned whether it was appropriate to include this complex item in the proceeding in light of the short timeline for implementing rules under the NET 911 Act, with Commissioner Adelstein noting that issues relating to mobile VoIP have been pending before the Commission in a separate docket for some time.

The NET 911 Act requires the Commission to prepare the necessary rules by October 21, 2008. In order to meet this tight deadline, the FCC has adopted a short comment cycle for the rulemaking: comments are due within 12 days of the Notice being published in the Federal Register; reply comments are due 8 days later.