Following earlier voluntary commitments by the four largest wireless carriers to transmit texts to 911 call centers, the FCC will now require “interconnected” text messaging application providers to be capable of sending texts to 911 call centers by the end of the year. The FCC stated it took this step in light of the failure of stakeholders to reach voluntary agreements. The FCC’s Order identifies specific steps that covered app providers must take, including certain consumer notifications, which are described in detail below. The FCC also seeks comments on extending the text-to-911 requirement to all types of messaging application providers.

Who is Covered. Interconnected, over-the-top (OTT) text messaging application providers that “enable consumers to send text messages to and receive text messages from all or substantially all text-capable U.S. telephone numbers, including through the use of applications downloaded or otherwise installed.” These are now “covered app providers.”

Who is Not Covered. The Order excludes app providers that only support communication with a defined set of users who must all download the same application, but do not support general communication with any text-capable wireless phone. The Order also does not require text-to-911 capability if the device is using a Wi-Fi connection, or the wireless device is roaming on another wireless carrier’s network. The Order also excludes text messaging services that only use telephone numbers for administrative or identification purposes, but are not “interconnected.”

Deadlines. Covered app providers must be capable of providing text-to-911 services (text-capable) by December 31, 2014. They must then be able to actually send text messages to 911 call centers, called Public Safety Answering Points or PSAPs, within six months after the PSAP provides notice that it is ready to receive such texts. PSAPs can either provide written notice to covered app providers or register with a to-be-established FCC database for text ready PSAPs. Currently, approximately 2% of PSAPs are ready. The earliest that text-to-911 must be implemented for a PSAP would be June 30, 2015.

Waiver Relief. Any covered app provider that is unable to meet the deadline may seek a waiver from the FCC. Such relief requires a showing of good cause as to why the deadline could not be met.

What is Required. A covered app provider will be considered text capable if it has completed each of the following three steps by December 31, 2014: (1) determining the particular solution it will use for delivering texts to 911, including the ability to locate the consumer so as to route the text to the geographically appropriate PSAP (the FCC will require use of “coarse location,” which is the cell ID and cell sector); (2) identify and/or entering into any necessary contractual arrangements with other stakeholders (e.g., contracting with wireless companies that must allow covered app providers to access the company’s SMS platform to route the call to the right PSAP); and (3) adopting requisite budgetary and other resource allocation plans to comply with this order. Not all three steps must necessarily be undertaken, but fulfillment of these steps appears to create a safe harbor.

The FCC has identified only one, currently available, technically viable approach for interconnected messaging app providers – using the wireless carrier’s network. As described by the FCC, the texting app would use the wireless device’s native SMS application programming interface (“API”), which may be different than the way the text app normally works. After accessing the API, the text message’s routing would be handled by the wireless carrier. The rules require the wireless carrier to cooperate and carry the app’s 911 text message.

The covered app provider is responsible for ensuring its service is technically compatible with the CMRS provider’s network.

Consumer Notices. Covered text providers using the wireless carrier’s SMS network must also inform consumers that if they do not have an SMS plan with the carrier, the 911 text will not work. If the covered app provider does not use a wireless network but instead plans to use device-based location information the provider must “clearly inform consumers that they must grant permission for the text messaging application to access the wireless device’s location information in order to enable text-to-911.” (If the consumer does not provide this access the text application must provide an automated bounce-back message stating the text did not get through. The FCC last year imposed a general bounce back requirement on interconnected text app providers.)

Republican Commissioner Dissents. Both Republican commissioners opposed the new requirements, and their dissents provide potential arguments to appeal the decision. Commissioner Pai, for example, wrote: (1) that the Order creates a confusing patchwork approach leaving consumes unsure whether texting will work or not; (2) delays implantation of IP-based, next generation 911 systems while relying on the potentially unreliable SMS platform; (3) contains a flawed cost-benefit analysis, including ignoring transaction costs that covered app providers will incur by paying wireless carriers to transmit 911 messages; and (4) the FCC may have acted outside its jurisdiction in ordering access to a phone’s SMS-API.

What’s Next. The FCC is seeking comment on further expanding text-to-911 rules, including whether to the extend the text-to-911 requirement to all types of messaging app providers, requiring text-to-911 capability when the wireless devices is connected to a Wi-Fi network, the delivery of “rich media” text services such as photos and video to PSAPs, and providing more granular location information.

The FCC also plans to provide more information, including a consumer advisory, to help clarify which type of messaging application providers are required to provide text-to-911 capability.

At this point it is unclear whether anyone will seek reconsideration of the Order, or file an appeal with the courts. As noted, the dissenting Commissioners highlighted what they considered to be flaws in the Order.