On October 21, 2008, the FCC issued a significant order adopting new regulations to promote the ability of interconnected VoIP providers to offer required E911 services by mandating that E911 capabilities be made available to interconnected VoIP providers as they are to Commercial Mobile Radio Service providers ("CMRS" or wireless carriers). Ironically, for the past three years, interconnected VoIP providers have been required by FCC regulation to offer E911 services comparable to that of wireline and wireless providers, but without the benefit of any statutory or regulatory requirements that they be provided comparable access to E911 capabilities residing in the wireline E911 infrastructure.

This recent FCC order, issued within 90 days of Congress' July 23, 2008 NET 911 Improvement Act of 2008 ("NET 911 Act"), implements the NET 911 Act goal of fostering the rapid deployment of interconnected VoIP 911 and E911 services. It grants new rights of access for interconnected VoIP providers to 911 capabilities at (1) the same "rates, terms and conditions" that they are provided to wireless carriers, whether or not the capabilities are used by wireless carriers, or (2) at other reasonable rates, terms and conditions that they are made available to any telecommunications carrier or other entity for the provision of 911 or E911 service. At the same time, the order affirms that interconnected VoIP providers have obligations to provide basic 911 and E911 services as required under FCC rules. The 911 capabilities to which the FCC order specifically requires VoIP provider access include, among other capabilities: a Selective Router; trunk lines between the Router and the PSAPs; the ALI Database; the SR Database; the database management system ("DBMS"); the Master Street Address Guide ("MSAG"); to pseudo-ANIs or p-ANIs; and to data circuits to connect these elements and other capabilities; all of which are typically built and maintained by incumbent local exchange carriers as part of the Wireline E911 Network. "Any entity" that owns or controls such capabilities must comply, and provide "ready access" to interconnected VoIP providers at rates, terms and conditions it offers those capabilities to other entities, or, if not, must negotiate rates which are "reasonable" and arrived at through commercial negotiation.

At the same time, the FCC also requires in the order that interconnected VoIP providers comply with "all applicable industry network security standards to the same extent as traditional telecommunications carriers" (including NENA's i2 standard) to prevent unauthorized electronic access or hacking. Though many interconnected VoIP providers have been able to deploy E911 services in most of their service areas since the 2005 VoIP 911 Order, some VoIP providers had reported cases in which their deployment of VoIP services has been delayed or frustrated because of their inability to obtain access to E-911 capabilities at reasonable terms. Even today, a leading national VoIP provider reported in this rulemaking that it provides a full suite of E911 services to 98.45% of its customers. This order should help interconnected VoIP providers close any remaining E911 gaps in their networks to meet FCC E911 requirements.