Following on the heels of a voluntary commitment from the four nationwide wireless carriers to support text-to-911, the Federal Communications Commission (“FCC” or “Commission”), on August 8, 2014, adopted a Report and Order and Third Notice of Proposed Rulemaking that will require all wireless carriers and “interconnected” text messaging providers – i.e., over-the-top (“OTT”) text messaging applications that enable text messages to U.S. phone numbers – to enable end users to send SMS text messages to emergency service providers.  The rules require covered text messaging providers to support text-to-911 capabilities by the end of 2014, after which they must deploy text-to-911 within six months of a public safety answering point (“PSAP”) request.

In the Third Notice of Proposed Rulemaking (“NPRM”), the FCC seeks comment on a number of additional issues related to text-to-911, including requiring carriers, within two years, to include location information in emergency text messages and to support 911 texts while roaming.  The NPRM also asks whether to extend text-to-911 rules to “non-interconnected” text messaging applications and services (including popular applications like WhatsApp).

Perhaps the most notable element of the rules is the fact that they apply to so-called “interconnected” text messaging applications (and may apply to “non-interconnected” text messaging apps in the future).  These rules represent the latest in a continuing trend toward FCC regulation at the “application layer,” including CPNI rulings related to data stored in some third-party apps on wireless devices, disabilities access rules related to “advanced communications services,” and recent Telephone Consumer Protection Act (“TCPA”) clarifications related to text-based group messaging applications.  Consequently, app providers should continue to monitor developments at the FCC that may impose additional regulatory obligations and costs on their businesses, as well as potential exposure to enforcement actions.

The text of the Order and rules have not yet been released (read the News Release here).  When the Order becomes available, we will provide additional details.