Text Me, Maybe: The FCC’s New Text-to-911 Rules and the Expanding Regulation of OTT Services

Author: Steven A. Augustino and Jameson J. Dempsey, Kelley Drye & Warren LLP

Kelly-Drye_BlogOn August 8, 2014, the Federal Communications Commission (“FCC”) issued a Report and Order and Third Notice of Proposed Rulemaking on “text-to-911”, the idea that consumers should have the option to reach 911 emergency services through SMS-based text messages.  In 2012, the four major wireless carriers voluntarily pledged to implement text-to-911 service to requesting public safety answering points (“PSAPs”) by mid-2014.  The FCC’s new rules expand that voluntary commitment to apply to all wireless carriers and to “interconnected” text messaging providers – i.e., over-the-top (“OTT”) text messaging applications that enable text messages to U.S. phone numbers. The rules require covered text messaging providers to offer text-to-911 capabilities by the end of 2014, and deploy text-to-911 within six months of a request from a PSAP.


A number of aspects of the Commission’s new rules are controversial, especially because only a small minority of PSAPs currently support text-to-911.  In our view, however, the most notable element of these 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).  Interconnected text messaging applications are defined in a similar manner to interconnected voice-over-IP (“VoIP”); namely, services 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 on mobile phones.”


Moreover, there is reason to believe that the Commission will extend these rules to other, non-interconnected texting apps, such as WhatsApp.  In the Order, the Commission based its authority for its text-to-911 rules on the requirements of the Twenty-First Century Communications and Video Accessibility Act (“CVAA”), which applies disabilities access regulations to all “advanced communications services,” a term that includes both interconnected and non-interconnected messaging apps.  As such, it is conceivable that the Commission will find that its text-to-911 rules should apply equally to all such apps.  In fact, the Third Notice of Proposed Rulemaking released with the FCC’s text-to-911 order asks whether to extend text-to-911 rules to such services.  Further, the Commission already has a parallel proceeding on “Next Generation 911” (or “NG911”), which will allow individuals to send text, video, and data to PSAPs in an emergency.


These rules represent the latest in a growing shift toward FCC regulation at the “application layer,” an area traditionally inhabited by the Commission’s sister agency, the Federal Trade Commission.  As the FCC has eschewed economic regulation, it has nevertheless moved forward with applying “social” or public policy obligations to a growing list of services.  Recent FCC rules that apply social obligations to apps include CPNI rulings applying FCC privacy regulation to data stored in some third-party apps on wireless devices, the above-mentioned disabilities access rules related to accessibility features in “advanced communications services,” and recent Telephone Consumer Protection Act (“TCPA”) clarifications related to text-based group messaging applications.  Further, as we mentioned in an earlier blog post, as OTT providers continue to behave more like carriers, and as more traditional carriers adopt OTT verticals, the Commission may find that regulation is necessary to protect consumers.


In our view, we don’t see this regulatory expansion stopping any time soon.  As a consequence, app providers should monitor developments at the FCC that could impose additional regulatory burdens and obligations on their businesses, as well as potential exposure to enforcement actions.

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