WASHINGTON-The Small Business Administration has warned the Federal Communications Commission that the FCC may have violated a law meant to protect small businesses when it removed the requirement that a cost-recovery mechanism be in place before carriers are required to implement enhanced 911 service.
“Advocacy has concluded that the [FCC’s] decision to not address the small business issues raised in the petitions for reconsideration does not comply with the [Regulatory Flexibility Act],” said Susan M. Walthall, acting chief counsel of the SBA’s Office of Advocacy, and Eric E. Menge, SBA assistant chief counsel for telecommunications, in a letter sent April 19 to FCC Chairman Michael K. Powell.
The SBA letter represents the latest salvo in the battle between carriers-both large and small-on one side and the public-safety community and the FCC on the other.
This latest round also is being played out in court.
After the FCC rejected the request of rural carriers to review its rules removing the cost-recovery mechanism, the Rural Cellular Association, United States Cellular Corp. and Corr Wireless Communications L.L.C. appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The Association of Public-safety Communications Officials International Inc. has entered the case on the side of the FCC. Oral argument is scheduled in the case for May 15.
The two sides have been battling over E911 implementation since the early 1990s when the FCC noted the lack of wireless E911 services was increasingly becoming a problem as more people used wireless phones to dial for help. Initially, the FCC established rules that called for E911 services to be phased in, but carriers had six months after receiving a request from a public-safety answering point to deploy services as long as states put in place a way for carriers to recover the costs for deploying E911 service.
In 1999, only a few places had the initial phase of wireless 911 service, in part because few states had cost recovery systems in place. In order to spur more E911 deployments, the FCC in late 1999 dropped the requirement that states had to have a cost-recovery system in place before carriers would be forced to deploy service.
The carriers point out that adoption of cost-recovery legislation by the states was proceeding. The FCC said only 27 states had adopted such a mechanism and one state, Hawaii, had rejected such a system.
APCO places the blame for the cost-recovery issue at the feet of the carriers, using the statements of BellSouth Corp. as evidence.
“Some wireless carriers opposed cost-recovery legislation because it added another fee to their customers’ bills’. … Carriers that wanted to delay their E911 obligations could also use legislative strategies to stall the establishment of cost-recovery mechanisms, thus deterring their need to comply,” said APCO.
Deciding that requiring a cost-recovery mechanism was delaying implementation of E911, the FCC removed the obligation in late 1999.
The rural carriers balked, saying the FCC had not considered the disproportionate burden that would be placed on them by having to recover their own costs to deploy E911.
Corr Wireless even filed cost data with its request for reconsideration claiming such costs would be “an intolerable burden.”
The FCC rejected Corr’s claim stating Corr had not submitted data for deploying what it said was the less expensive handset-based alternative. The agency also pointed out that should Corr decide to go with a network-based plan, there were services available that limited carriers’ upfront costs. The FCC also pointed out that if Corr -or any other carrier-believed it could not comply with the E911 mandate, it could file for a waiver.
A spokeswoman for the FCC’s Wireless Telecommunications Bureau said the FCC’s Office of Business Opportunities reviews all commission orders for RFA compliance. An attempt to ascertain OCBO’s analysis in this case was unsuccessful.
