This week, the Federal Communications Commission (“Commission” or “FCC”) issued a wide ranging Notice of Inquiry (“NOI”) seeking comment on the use of Enterprise Communications Systems (“ECS”) and the functionality of 911 calling from an ECS. The NOI is a first step in the Commission’s attempt to understand and potentially regulate how ECS providers incorporate 911 functionality into their services. Specifically, the Commission seeks comment on issues related to:

• The number and type of ECS equipment service vendors;
• The number and type of subscribers to ECS and their usage of the service;
• The effect of broadband availability on ECS; the current E911 capabilities of ECS;
• Standards that govern how ECS are offered, configured, and tested; and
• The effect of typical business arrangements on ECS 911 provisioning.

ECS refers to a range of networked communications systems – typically used by enterprise customers such as businesses, hotels, and college campuses – that simplify phone system management for organizations with multiple users and lines. Historically, enterprise service was a circuit-switched service provided by multi-line telephone systems (“MLTS”), private branch exchanges (“PBX”), or Centrex systems. However, the introduction of Internet Protocol (“IP”) based phone systems has led to an explosion of options in the enterprise communications space, including Voice over Internet Protocol (“VoIP”) and cloud-based ECS offerings.

Originally, MLTS, PBX, and Centrex systems were used by large organizations, such as corporate customers. These customers were usually sophisticated entities that negotiated the installation of MLTS, PBX, or Centrex service with incumbent local exchange carriers or a relatively small number of enterprise service providers.

Given this history, the FCC has taken a largely hands-off approach to ECS services in the past. The Commission took this approach the last time it seriously reviewed ECS 911 access issues in 2003. In 2003, the Commission concluded that “(1) states were in the best position to establish what steps to take to promote E911 availability, and (2) the local nature of 911 implementation supported giving states broad discretion to adopt E911 rules for ECS.” That said, the Commission also said it expected states to expeditiously address E911 issues involving ECS service.

But, as of 2016, only twenty states have laws in place governing 911 access for ECS users. Four other states have pending legislation, and a growing chorus of lawmakers are calling for action. In large part, attention to this issue is driven by sensational failures of a caller’s ability to reach 911 when using an ECS. For example, many hotel (and other ECS) phone systems require the caller to dial a number (usually 9) to make calls outside the ECS network, which may mean a caller must dial 9-911. But hotel guests, especially children, may not know they need to dial 9 before dialing 911 from some hotels.

Now, fourteen years later, the NOI may be the first step in reexamining the Commission’s 2003 conclusions. While the FCC issued public notices in 2004 and 2012 seeking comment on the adoption of state-based ECS E911 rules and the impact of changing technologies on ECS E911 issues, neither public notice lead to Commission action. With this NOI, the Commission appears to be building a robust record that it can use as the basis for voluntary industry standards or, if the FCC opts to regulate in this area, a notice of proposed rulemaking.

Providers of enterprise level communications solutions, including IP-based providers and UCaaS, should pay close attention to this proceeding because it could expose enterprise offerings to additional regulation. The proceeding also could expand and clarify the FCC’s definitions for ECS offerings. In particular, IP-based providers that view their offerings as an information service and do not see themselves a regulated telecommunications provider could be subject to additional regulation, or at least industry-wide standards and best practices, based on this proceeding.

Chairman Pai has vowed to cut back FCC regulation, not add to it, and this FCC will likely try to rely on voluntary industry standards and best practices. However, 911 issues have traditionally had robust bipartisan support because of 911’s importance to public safety and the high stakes of 911 failures. Therefore, any telecommunications provider or equipment manufacture with enterprise customers should engage in this proceeding now to ensure the FCC fully understands ECS offerings and can appropriately balance public safety concerns with the technical and economic realities of offering enterprise level service in the modern telecommunications industry.

If you have any questions about the FCC’s NOI, would like our firm to monitor the proceeding, or would like to submit comments, please contact Michael Donahue at mpd@commlawgroup.com or Seth Williams at slw@commlawgroup.com. NOI Comments are due November 15, 2017, and reply comments are due December 15, 2017.