Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | CC Docket No. 94-102         |
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**ORDER ON RECONSIDERATION**

**Adopted: May 14, 2002 Released: July 24, 2002**

By the Commission: Commissioner Copps issuing a statement.

# INTRODUCTION

1.  In May 2001, the Wireless Telecommunications Bureau (Bureau) issued
    a decision identifying the 911 Selective Router as the demarcation
    point for allocating Enhanced 911 (E911) implementation costs
    between wireless carriers and Public Safety Answering Points
    (PSAPs), in those instances where the parties cannot agree on the
    appropriate demarcation point.[^1] In response to a Petition for
    Reconsideration, the Commission hereby affirms the Bureau's
    decision. We find that the cost-allocation point for E911
    implementation should be that point at which the system identifies
    the appropriate PSAP and distributes the voice call and location
    data to that PSAP. We also find that clarifying the demarcation
    point for E911 cost allocations will expedite the roll-out of
    wireless E911 services by helping to eliminate a major source of
    disagreement between the parties so as to facilitate the negotiation
    process.

# BACKGROUND

2.  The Commission initially required that a cost recovery mechanism be
    in place for both the wireless carrier and the PSAP before the
    carrier would be obligated to deliver E911 service.[^2] In the *E911
    Second Memorandum Opinion and Order,* the Commission found that
    disputes about cost recovery had become a significant impediment to
    the implementation of E911 Phase I and eliminated the carrier
    cost-recovery requirement, but not the PSAP cost-recovery
    requirement.[^3] On May 25, 2000, the King County, Washington E911
    Program Office filed a request with the Bureau for assistance in
    resolving a conflict related to the implementation of wireless E911
    Phase I service in Washington State. Specifically, King County
    inquired whether the funding of Phase I network and database
    components, and the interface of these components with the existing
    E911 system, is the responsibility of the wireless carrier or the
    PSAP.[^4]

3.  In its response to King County's request, the Bureau determined
    that, in the absence of an agreement to the contrary between the
    parties, the 911 Selective Router serves as the demarcation point
    for allocating E911 implementation costs. However, the Bureau
    emphasized that "the Commission continues to favor negotiation
    between the parties as the most efficacious and efficient means for
    resolving disputes regarding cost allocations for implementing Phase
    I."[^5] Noting that a variety of situations exists in approximately
    6,000 PSAPs across the nation, including differences in state laws,
    the configuration and technical sophistication of existing network
    components used to provide E911 service, and agreements between
    carriers and PSAPs, the Bureau observed that the application of "a
    uniform federal mandate that prevents the relevant stakeholders from
    reaching other, mutually-acceptable arrangements" should be avoided
    unless, as ultimately proved to be the case in the Bureau's dealings
    with wireless carriers and PSAPs in King County,[^6] the parties are
    unable to resolve the dispute.

4.  The Bureau identified the 911 Selective Router as the demarcation
    point for allocating E911 costs based on the language of section
    20.18(d) and the nature and configuration of the existing network
    components used to provide wireline E911service. The Bureau
    explained that, in order for a wireless carrier to satisfy its
    obligation under section 20.18(d) to provide Phase I information to
    the PSAP, the carrier must deliver that information to the equipment
    in the existing 911 system that "analyzes and distributes it" -- the
    911 Selective Router.[^7] The Bureau's conclusion on the cost
    allocation issue states as follows:[^8]

> \[T\]he proper demarcation point for allocating costs between the
> wireless carriers and the PSAPs is the input to the 911 Selective
> Router maintained by the Incumbent Local Exchange Carrier (ILEC).
> Thus, under section 20.18(d) of the Commission's regulations governing
> Enhanced 911 Service (E911), wireless carriers are responsible for the
> costs of all hardware and software components and functionalities that
> precede the 911 Selective Router, including the trunk from the
> carrier's Mobile Switching Center (MSC) to the 911 Selective Router,
> and the particular databases, interface devices, and trunk lines that
> may be needed to implement the Non-Call Path Associated Signaling and
> Hybrid Call Path Associated Signaling methodologies for delivering
> E911 Phase I data to the PSAP. PSAPs, on the other hand, must bear the
> costs of maintaining and/or upgrading the E911 components and
> functionalities beyond the input to the 911 Selective Router,
> including the 911 Selective Router itself, the trunks between the 911
> Selective Router and the PSAP, the Automatic Location Identification
> (ALI) database, and the PSAP customer premises equipment (CPE).

5.  On June 6, 2001, Verizon Wireless, VoiceStream Wireless Corporation,
    Qwest Wireless, LLC, and Nextel Communications, Inc. (Petitioners or
    Joint Petitioners) jointly filed a Petition for Reconsideration
    requesting that the Bureau reconsider its determination that the
    cost-allocation demarcation point is the input to the 911 Selective
    Router and find, instead, that the proper demarcation point is the
    output of the wireless carrier's MSC.[^9] The Joint Petitioners
    challenge the Bureau's decision on procedural, as well as
    substantive, grounds. With respect to the latter, they argue that
    the decision: (1) violates and renders superfluous the regulatory
    language of section 20.18(j);[^10] (2) deviates from the cost
    allocation for Wireline E911 and discriminates unlawfully against
    wireless carriers *vis-a-vis* wireline carriers; (3) is based on an
    erroneous assumption that the network components used to provide
    wireline E911service do not include the trunkline from the MSC to
    the 911 Selective Router; and (4) ignores long-standing cost causer
    principles and state law. Procedurally, the Joint Petitioners argue
    that (1) the decision exceeds the Bureau's delegated authority
    because it contravenes Commission rules, policy and precedent; (2)
    the scope of the inquiry and conclusion reached require a notice and
    comment rulemaking proceeding under the Administrative Procedure Act
    (APA);[^11] (3) the decision ignores significant carrier comments
    contained in the record compiled in response to the *First Public
    Notice*;[^12] and (4) King County's request should have been
    dismissed as an untimely request for reconsideration and an
    impermissible collateral attack on the Commission's decisions in
    earlier E911 orders.

# discussion

6.  As indicated, the Joint Petitioners have raised both substantive and
    procedural challenges to the Bureau's decision on the E911 cost
    allocation issue. We will address first the substantive arguments,
    then the procedural arguments, identified above.

## Substantive Arguments

7.  *Section 20.18 and Related Commission Orders.* We reject Joint
    Petitioners' arguments that the Bureau's designation of the 911
    Selective Router as the cost-allocation demarcation point
    contravenes the regulatory language of section 20.18(j) and portions
    of related Commission Orders and that it constitutes a new,
    Bureau-created policy at variance with the Commission's rules and
    previous orders.[^13] Both sections 20.18(d) and 20.18(j) are
    ambiguous regarding the specific respective responsibilities of the
    parties in implementing Wireless E911 service. Section 20.18(d),
    *Phase I enhanced 911 services*, states as follows in subparagraph
    (1):[^14]

> \(1\) As of April 1, 1998, or within six months of a request by the
> designated Public Safety Answering Point as set forth in paragraph (j)
> of this section, whichever is later, licensees subject to this section
> must provide the telephone number of the originator of a 911 call and
> the location of the cell site or base station receiving a 911 call
> from any mobile handset accessing their systems to the designated
> Public Safety Answering Point through the use of ANI and Pseudo-ANI.

Section 20.18(j), *Conditions for enhanced 911 services*, states as
follows with respect to PSAPs' responsibilities: [^15]

> The requirements set forth in paragraphs (d) through (h) \[Phase I and
> Phase II requirements\] of this section shall be applicable only if
> the administrator of the designated Public Safety Answering Point has
> requested the services required under those paragraphs and is capable
> of receiving and utilizing the data elements associated with the
> service, and a mechanism for recovering the Public Safety Answering
> Point\'s costs of the enhanced 911 service is in place.

We find that neither section 20.18(d) nor section 20.18(j) clearly
specifies to what point in the 911 network the carrier must bring the
required data or at what point in the 911 network the PSAP must be
capable of receiving and utilizing that data.

8.  We also find that the Bureau correctly interpreted these regulatory
    provisions, in light of the nature and configuration of the existing
    network components used to provide wireline E911service, by
    determining that the analysis of the Phase I data to determine which
    PSAP should respond to the call and the distribution of that call to
    the proper PSAP are central to a wireless carrier's obligation to
    "provide" emergency wireless E911 services. Because it is the 911
    Selective Router that performs these functions, the Bureau rightly
    determined that a wireless carrier must deliver the Phase I data to
    the 911 Selective Router in order to fulfill its obligations under
    section 20.18(d).[^16] This is the case whether a Non-Call
    Associated Signaling (NCAS) technology, a Call Associated Signaling
    (CAS) technology, or a Hybrid CAS technology is employed for
    implementing Phase I.[^17] Thus, we agree with the Bureau that a
    cost-allocation demarcation point at the input to the 911 Selective
    Router is most appropriate because, until the proper PSAP has been
    identified, no PSAP can "receive" and "utilize" the location data
    under section 20.18.

9.  The Bureau's letter is in the nature of a declaratory ruling
    concerning the respective responsibilities of the parties under the
    Commission's regulations governing Phase I of E911 service. We
    affirm that guidance here. The Bureau did not specifically address
    the parties' responsibilities with respect to the provision of Phase
    II information. However, we find that it is the interests of the
    parties and the public that we continue to anticipate those issues
    that may create stumbling blocks in the future to a smooth and
    efficient roll out of Phase II service. To that end, we find that
    the analysis applied by the Bureau with respect to Phase I logically
    extends to the obligations imposed on carriers by section
    20.18(e).[^18]

10. Section 20.18(e), *Phase II enhanced 911 services*, provides in
    pertinent part, "Licensees subject to this section must provide to
    the designated Public Safety Answering Point Phase II enhanced 911
    service, *i.e.*, the location of all 911 calls by longitude and
    latitude . . . ." Like section 20.18(d), section 20.18(e) does not
    specify to what point in the network the carrier must bring the
    required Phase II data. We find it appropriate to interpret section
    20.18(e) consistently with section 20.18(d), given that the same
    infrastructure is used to transmit Phase I and Phase II information
    from the wireless carrier to the appropriate PSAP. Thus, we hereby
    clarify that, in the absence of an agreement to the contrary between
    the parties, the input to the 911 Selective Router shall serve as
    the demarcation point for allocating costs between wireless carriers
    and PSAPs, both with respect to the delivery of Phase I information
    and with respect to the delivery of Phase II information. This
    clarification is consistent with our objectives in enacting section
    20.18, namely, the rapid and ubiquitous deployment of wireless E911
    capabilities.

11. We reject Petitioners' argument that statements in various
    Commission orders support interpreting these regulations to locate
    the cost allocation demarcation point at the output from the
    carrier's MSC.[^19] The statements cited are inconclusive regarding
    which party bears what costs for implementing E911. Rather, we find
    that these statements, if anything, tend to support the
    interpretation adopted by the Bureau. For example, the Commission's
    inventory of PSAP costs, in both the *E911 First Report and Order*
    and the *E911 Second Memorandum Opinion and Order*,[^20] includes
    only network "upgrades" and omits: (1) the new trunkline between the
    MSC and the 911 Selective Router needed for all three Phase I
    technologies --CAS, NCAS, and Hybrid CAS; (2) network components
    such as the SCP for an NCAS solution or the WID for a Hybrid CAS
    solution,[^21] and (3) associated trunklines connecting these
    components to other parts of the network. All of these components
    "precede" the input to the 911 Selective Router in the sequencing of
    network components for handling a wireless 911 call. Their omission
    from the Commission's inventory of PSAP costs suggests that they are
    the responsibility of the wireless carrier, not the PSAP. When they
    are coupled with other Commission statements concerning cost-sharing
    by the parties in implementing E911,[^22] we conclude that the
    statements cited by the Petitioners tend to support, rather than
    contradict, a cost allocation point beyond the wireless carrier's
    MSC and the Bureau's determination that the most appropriate point
    is the input to the 911 Selective Router.

12. We also reject the argument made by some wireless carriers that the
    Bureau's decision constitutes an unauthorized shift of
    responsibility to wireless carriers for network "add-ons," such as
    the SCP or the WID."[^23] These carriers contend that PSAPs must
    bear not only the cost of updating the 911 Selective Router but
    also, where an NCAS or Hybrid CAS Phase I solution is being used,
    the cost of the SCP or WID.[^24] However, under Section 20.18(d),
    the carrier is responsible for providing Phase I information to the
    appropriate, or "designated," PSAP. When a CAS technology is used,
    the carrier, in order to satisfy Section 20.18(d), simply provides
    the 10-digit ANI and 10-digit p-ANI to the input of the Selective
    Router -- which, in turn, uses the p-ANI to determine the PSAP to
    which Phase I information, as well as the 911 call itself, should be
    sent (*i.e*., the designated PSAP).[^25] When an NCAS or Hybrid CAS
    technology is used, the carrier must deliver Phase I information to
    the 911 Selective Router in a form that the router can accept and
    process, and this can only be accomplished through the use of an SCP
    or a WID. Thus, in order to fulfill its Section 20.18(d)
    obligations, the carrier, if NCAS or Hybrid CAS is employed, must
    provide the SCP or WID. We thus do not agree with commenters that
    such devices are network "add-ons;" rather, they are devices that
    carriers must furnish in order to satisfy their E911 requirements
    under our rules.

13. Moreover, in the case of an NCAS solution, for example, the approach
    advocated by these wireless carriers could push the line of
    demarcation as far back as the output of the MSC, requiring that the
    PSAP bear the costs of the trunklines between the MSC and the SCP
    and, arguably, between the MSC and the 911 Selective Router, as well
    as the costs of the SCP itself. In addition, the cost allocation
    would vary depending on the type of Phase I technology chosen by the
    parties.[^26] The Commission has strenuously avoided solutions that
    are other than technology-neutral in crafting regulatory
    requirements for E911 implementation.[^27] The argument proffered by
    the Petitioners and others contradicts this important Commission
    policy.

14. *Wireless E911 Cost Allocation and Configuration of Wireline Network
    Components.* We reject Petitioners' argument that the Bureau erred
    in treating wireless carriers differently from wireline carriers for
    E911 cost-allocation purposes.[^28] In the first place, the Bureau
    did not base its decision on the appropriate demarcation point for
    allocating costs for the provision of wireless E911 service on the
    configuration of the network components used to provide wireline
    E911 service. Nor was it constrained to adopt a wireline cost
    allocation methodology for the purpose of allocating E911
    implementation costs in the wireless context. Thus, we reject Joint
    Petitioners' assertion that the Bureau's decision discriminates
    unlawfully against wireless carriers *vis-a-vis* wireline carriers.
    We agree with TX-CSEC that *US Cellular* provides judicial support
    for the Bureau's decision. That case, concerning cost recovery, and
    the case at hand, concerning the nature and extent of the costs
    themselves, are analogous. In *US Cellular* the court sanctioned the
    Commission's disparate treatment of wireless and wireline carriers,
    stating that "an important difference in the way \[wireless and
    wireline\] service is regulated," provides "more than sufficient
    reason" for eliminating the cost recovery prerequisite for wireless
    carriers, despite wireline carriers' ability to recover their costs
    through PSAP tariffs.[^29] Thus, the Petitioners' arguments based on
    cost-allocation practices in the wireline industry are without
    merit.

15. Furthermore, we recognize, as did the Bureau, that no single E911
    cost allocation paradigm exists for the wireline industry \-- the
    PSAP bears the costs of funding the trunkline between the 911
    Selective Router and the wireline carrier's end office in some
    instances, but not in all instances. In many jurisdictions, ILECs,
    whose rates are regulated, are treated differently from Competitive
    Local Exchange Carriers (CLECs), whose rates are not regulated.
    Specifically, the costs associated with the transmission of an E911
    call from the ILEC's end office to the 911 Selective Router are
    generally borne by the PSAP, but this is not necessarily true for
    CLECs. The E911 cost allocation for CLECs varies by jurisdiction,
    and, in many cases, the CLEC is responsible for the costs of
    transmitting a customer's 911 call from its end office to the 911
    Selective Router.[^30] Had the Bureau viewed wireline E911 cost
    allocation practices as determinative, the more analogous cost
    allocation methodology would arguably have been that applicable to
    CLECs, because both CLECs and wireless carriers can recover their
    costs from customers in any reasonable manner.

16. Finally, we reject the Petitioners' argument that the Bureau
    mischaracterized the configuration of the network components used to
    provide wireline E911 service by failing to include the trunk
    between the carrier's MSC and the 911 Selective Router in its
    enumeration of network components.[^31] The Bureau did not
    misunderstand the parameters of the network used to provide wireline
    E911 service. When read in context, the sentence at issue neither
    states nor implies that the trunkline between the wireline carrier's
    end office and the 911 Selective Router is not one of the network
    components used to provide wireline E911service. In some instances,
    in fact, it is. However, as discussed above, this configuration is
    neither universal in the wireline context nor determinative as to
    the resolution of the cost allocation issue in the wireless context.

17. *Other Substantive Arguments.* We reject Joint Petitioners'
    unsubstantiated argument that several issues raised by commenters in
    their response to the *First Public Notice*, and allegedly ignored
    by the Bureau, provide potential bases for reversing the Bureau's
    decision on the cost allocation issue. Petitioners assert, without
    elaboration, that the Bureau's allocation of costs to wireless
    carriers is contrary to "long-standing cost causer principles."[^32]
    This contention is without merit. As TX-CSEC notes,[^33] the cost
    causer argument has been laid to rest by the court's decision in *US
    Cellular* that "on no plausible theory are the PSAPs the cost
    causers."[^34] Petitioners also argue that the decision is
    incompatible with state law[^35] and "historic practice."[^36] They
    neither elaborate on, nor provide substantiation for, these
    arguments. We are unable to find support in the record for these
    arguments and therefore reject them.

18. We also reject arguments made by Cal-One and Dobson that the
    Bureau's decision ignores the disproportionate impact of E911 costs
    on small and rural wireless carriers.[^37] The argument that E911
    costs will have a disparate, negative effect on small and rural
    carriers because they have a substantially smaller customer base
    from which to recoup their costs has been raised and addressed
    previously by the Commission in the E911 context.[^38] There, as
    here, the conclusion must be the same. Because the risk incurred
    where the dispatcher cannot locate a 911 wireless caller does not
    vary with the size of the wireless carrier that picks up the call,
    the Commission's E911 requirements should apply equally to small and
    rural wireless carriers and to larger carriers. Where our rules
    impose a disproportionate burden on a particular carrier, the
    carrier may work with the public safety entities involved to
    mitigate that burden and, if necessary, may seek individual relief
    from the Commission.

19. Finally, we reject Petitioners' contention that the Bureau's
    decision constitutes a "new \[Bureau-created\] policy" of assigning
    costs based on a wireless carrier's ability to recoup those costs
    from its customers.[^39] The Bureau's observation that wireless
    carriers can recoup their costs from their customers is not, and was
    not, determinative of the cost allocation question. It did, however,
    track the Commission's comments in the *E911 Second Memorandum
    Opinion and Order* that removal of the carrier cost recovery
    requirement in section 20.18(j) would have no negative impact on
    carriers because they could recoup their costs from customers
    through surcharges or increased rates.[^40] It also addresses a
    fundamental difference between wireline and wireless carrier cost
    recovery mechanisms that justifies any disparate treatment in
    allocating E911 costs between carriers and PSAPs.

## Procedural Arguments

20. *APA Notice and Comment Requirement and Delegated Authority.*
    Because the Bureau's decision is a reasonable interpretation of
    existing Commission rules, policy and precedent, we reject the Joint
    Petitioners' arguments that it violated the notice and comment
    requirement in section 553(b) and (c) of the APA.[^41] Since 1994,
    when the Commission initiated the E911 proceeding, it has sought
    public comment on a variety of issues germane to the implementation
    of E911 service for wireless callers and has issued a series of
    orders and accompanying regulatory amendments in response to those
    comments.[^42] Given the scope and evolving nature of this process,
    these regulations and orders have necessarily required additional
    interpretation as the wireless industry moves toward the
    implementation of E911, and location technologies are developed or
    modified in response to the Commission's requirements. As discussed
    previously, section 20.18 is ambiguous concerning the demarcation
    point for costs associated with the implementation of Wireless E911.
    Contrary to Petitioners' assertions, the Bureau's decision did not
    create new law but, instead, constituted a reasonable interpretation
    of the existing regulation, in view of the Commission's policy goals
    for the implementation of wireless E911.[^43] Thus, the Petitioners'
    citations to *Martin* and other cases, in support of its APA
    argument, are inapposite.[^44]

21. With respect to Joint Petitioners\' related argument on delegated
    authority, the Commission is unable to reach a majority on whether
    the Bureau exceeded its delegated authority in this matter. That
    issue is rendered moot, however, since the Commission is addressing
    the merits of the Joint Petitioners\' substantive claims.[^45]

22. *Other Procedural Issues.* We also reject the Joint Petitioners'
    argument that the decision is invalid because it fails to address
    significant carrier comments submitted in response to the *First
    Public Notice*.[^46] First, except for the delegated authority
    issue, which is now moot, all of the comments cited by the Joint
    Petitioners have been addressed, either in the underlying *King
    County Letter*, or in this reconsideration decision.[^47] Secondly,
    this argument is based on case law concerning decisions subject to
    the APA's notice and comment requirement. However, as previously
    indicated, the Bureau's decision was a reasonable interpretation of
    the Commission's existing regulation.[^48] As such, it did not
    constitute an amendment of the regulation and did not require notice
    and the opportunity for comment prior to its implementation. The
    Bureau's decision is subject only to the more general requirement in
    section 706 of the APA that an agency provide a reasoned basis for
    its decision to facilitate judicial review thereof. The Bureau's
    decision complies with this requirement.[^49]

23. Finally, we reject the Petitioners' argument that King County's
    request should have been dismissed as an untimely request for
    reconsideration of the Commission's earlier decisions regarding PSAP
    obligations or as an impermissible collateral attack on those
    decisions.[^50] King County was neither seeking reconsideration of,
    nor mounting a collateral attack on, earlier Commission decisions
    regarding a PSAP's E911 obligations under section 20.18. It merely
    sought clarification of a Commission rule and associated orders that
    are acknowledged to be ambiguous. Its request was tantamount to a
    Petition for Clarification.[^51] Such petitions are a commonplace of
    regulatory practice and may be filed whenever a member of the public
    requires assistance regarding the proper construction of a
    Commission rule or order.

# PROCEDURAL MATTERs and ordering clauseS

## Regulatory Flexibility Act

24. The Commission is not required by the Regulatory Flexibility Act, 5
    U.S.C. § 604 to prepare a Regulatory Flexibility Analysis of the
    possible economic impact of this Order on small entities.

## Paperwork Reduction Act of 1995 Analysis

25. This order does not contain an information collection.

## Ordering Clauses

26. Accordingly, IT IS ORDERED that the Petition for Reconsideration
    filed jointly by Verizon Wireless, VoiceStream Wireless Corporation,
    Qwest Wireless, LLC, and Nextel Communications, Inc. IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch
>
> Secretary
>
> **Appendix A**

**Petition:**

Verizon Wireless, VoiceStream Wireless Corporation, Qwest Wireless, LLC,
Nextel Communications, Inc. (Joint Petitioners)

**Comments:**

Cal-One Cellular, LP (Cal-One)

CenturyTel Wireless, Inc. (CenturyTel)

Dobson Communications Corporation (Dobson)

Joint Opposition of NENA, APCO and NASNA as Public Safety Communicators
(Joint Commenters)

Sprint PCS

Texas 911 Agencies (TX-CSEX)

**Reply Comments:**

Joint Petitioners

Nextel Communications, Inc. (Nextel)

TX-CSEC

[^1]: *See* Letter from Thomas J. Sugrue, Chief, Wireless
    Telecommunications Bureau, to Marlys R. Davis, E911 Program Manager,
    Department of Information and Administrative Services, King County,
    Washington (May 7, 2001)(*King County Letter*).

[^2]: *See* Revision of the Commission's Rules To Ensure Compatibility
    with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    *Report and Order and Further Notice of Proposed Rulemaking*, 11 FCC
    Rcd 18676, 18692-97, paras. 29-42, (1996)(*E911 First Report and
    Order).*

[^3]: *See* Revision of the Commission's Rules To Ensure Compatibility
    with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    *Second Memorandum Opinion and Order*, 14 FCC Rcd 20850 (1999)(*E911
    Second Memorandum Opinion and Order)*. In consequence, a carrier's
    obligation to provide E911 service is presently contingent upon the
    carrier's receipt of a valid request from a PSAP that is capable of
    receiving and utilizing the data elements associated with the
    service and for which a mechanism for the recovery of such PSAP's
    E911 costs is presently in place. *See* 47 C.F.R. 20.18(d); *see
    also* *City of Richardson*, in which the Commission established
    readiness criteria for determining the validity of a PSAP's request
    under section 20.18(j) of its rules, based on the parties'
    respective obligations for the implementation of Phase I as set
    forth in the *King County Letter. See* Revision of the Commission's
    Rules To Ensure Compatibility with Enhanced 911 Emergency Calling
    Systems, CC Docket No. 94-102, *Order*, FCC 01-293, rel. Oct. 17,
    2001, at n.28 (*City of Richardson*).

[^4]: Letter from Marlys Davis, E-911 Program Manager, King County E-911
    Program Office, Department of Information and Administrative
    Services, to Thomas J. Sugrue, Chief, Wireless Telecommunications
    Bureau, FCC, CC Docket No. 94-102 (filed May 25, 2000)(*King County
    Request*). On August 16, 2000, the Bureau put this request out for
    public comment. *See* Wireless Telecommunications Bureau Seeks
    Comment on Phase I E911 Implementation Issues, *Public Notice*, CC
    Docket No. 94-102, DA 00-1875 (August 16, 2000)(*First Public
    Notice*). PSAPs and other public safety organizations asserted that
    the appropriate demarcation point for allocating responsibility and
    associated costs between wireless carriers and PSAPs should be the
    911 Selective Router maintained by the Incumbent Local Exchange
    Carrier (ILEC). A majority of wireless service providers, on the
    other hand, contended that the appropriate demarcation point should
    be the carrier's Mobile Switching Center (MSC).

[^5]: *King County Letter* at 3.

[^6]: The Bureau noted in the *King County Letter* that it had "spent
    considerable time in discussions and multiple face-to-face meetings
    with the parties involved attempting to help them reach agreement."
    *Id.* at 3.

[^7]: *Id*. at 4.

[^8]: *Id.* at 1.

[^9]: Revision of the Commission's Rules To Ensure Compatibility with
    Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    Petition for Reconsideration, filed June 16, 2001. (*Petition for
    Reconsideration*).

[^10]: 47 C.F.R. 20.18(j).

[^11]: 5 U.S.C. section 553(b) and (c).

[^12]: *See* ftn. 4, *supra*.

[^13]: Petition for Reconsideration at 8-15. *See also* Cal-One Comments
    at 8-9, CenturyTel Comments at 2-3, Dobson Comments at 3-4, Joint
    Petitioners' Reply Comments at 6-7.

[^14]: 47 C.F.R. 20.18(d)(1).

[^15]: 47 C.F.R. 20.18(j).

[^16]: We note that, although most wireless carriers disagree with this
    interpretation, Nextel appears, by its actions, to acknowledge that
    the wireless carrier's responsibilities under section 20.18 extend
    to the input to the 911 Selective Router and thus include the
    trunkline between the MSC and the 911 Selective Router. Nextel Reply
    Comments at 7-8.

[^17]: With an NCAS solution to Phase I, the caller's voice and the
    actual 20-digit Phase I data (10-digit phone number and 10-digit
    cell sector number) are transmitted to the PSAP on separate paths.
    At the time the wireless carrier's MSC receives the call from the
    base station, it sends the 20-digit information to the Service
    Control Point (SCP), where it is encoded under a 7-digit ESRK (code)
    that (1) tells the 911 Selective Router to which PSAP the voice call
    should be sent and (2) facilitates the PSAP's retrieval of the
    20-digit Phase I information from the ALI database. The SCP sends
    the ESRK back to the MSC, where it is linked to the voice call and
    forwarded to the 911 Selective Router. Based on the ESRK provided,
    the 911 Selective Router forwards the call to the appropriate PSAP.
    Simultaneous with sending the ESRK to the MSC, the SCP sends the
    ESRK and encoded 20-digit Phase I information to the ALI database,
    where the cell sector number is used to identify the cell
    site/sector address. This address, as well as the caller's phone
    number, are stored until the PSAP retrieves them using the ESRK sent
    through the 911 Selective Router with the voice call. With Hybrid
    CAS, the functions performed by the SCP are performed by the
    Wireless Integration Device(WID), which is installed at, but
    precedes "the input to," the 911 Selective Router. CAS transmits all
    20 digits of Phase I information with the voice call and requires
    that the trunkline installed between the MSC and the 911 Selective
    Router and the trunkline existing between the 911 Selective Router
    and the PSAP use signaling protocols that will support the
    transmission of 20 digits of Phase I data. Under a CAS technology,
    too, the PSAP-identification function is performed by the 911
    Selective Router.

[^18]: As is discussed in further detail *infra* in Section III.B., a
    reasonable interpretation of existing Commission regulations does
    not require APA notice and comment.

[^19]: Petition for Reconsideration at 12-13. Specifically, Petitioners
    point to the Commission's statement in the *E911 First Report and
    Order* that a carrier's obligation does not arise until the "PSAP .
    . . has made the investment which is necessary to allow it to
    receive and utilize the data elements associated with the service."
    *See E911 First Report and Order*, 11 FCC Rcd at 18708-09, para. 63.
    They cite to the Commission's observation that a PSAP's anticipated
    investment includes "switches, protocols, and signaling systems that
    will allow them to obtain the calling party's number from the
    transmission of ANI." *See id*. at 18709 n.119. They also cite the
    Commission's statement in the *E911 Second Memorandum Opinion and
    Order* that "the bulk of \[the\] selective routers . . . ALI
    databases, and 9-1-1 trunks, as well as the PSAP's own equipment,
    will have to be upgraded at the PSAP's own expense to handle the
    additional ANI and ALI information that will be provided by wireless
    carriers." *See E911 Second Memorandum Opinion and Order,* 14 FCC
    Rcd at 20877-78, para. 66.

[^20]: *See* ftn. 19, *supra.*

[^21]: Because it transmits the location data with the 911 voice call, a
    CAS methodology does not require the use of such components.

[^22]: Implicit in its discussions of E911 implementation costs, in
    general, and its elimination of the carrier cost-recovery
    prerequisite, in particular, is the Commission's assumption that
    such costs will accrue to both wireless carriers and PSAPs. Although
    it did not state which costs would be attributable to, and thus
    recoverable by, carriers under the carrier cost-recovery
    prerequisite, the Commission noted this issue in observing that the
    parties' "naturally competing interests" in determining which
    carrier costs are to be funded had become a major impediment to
    fulfillment of the prerequisite and to the rapid implementation of
    E911 service. *See E911 Second Memorandum Opinion and Order*, 14 FCC
    Rcd at 20869-70, para. 47.

[^23]: Nextel Reply Comments at 8-10, Sprint Comments at 2-3; *see also*
    Nextel Comments to *First Public Notice* at 2, TX-CSEC Comments at
    3-5, TX-CSEC Reply Comments at 5.

[^24]: The SCP and WID are devices that provide the information that
    enables the 911 Selective Router to direct the 911 call to the
    appropriate PSAP. *See* ftn. 18 *supra*.

[^25]: Ordinarily, the 911 Selective Router can only accept 8 digits of
    data. If CAS technology is employed, the Selective Router must be
    updated so that can accept the 20 digits provided by the carrier.

[^26]: Were a CAS solution adopted, the cost allocation demarcation
    point would be the 911 Selective Router; were an NCAS or a Hybrid
    CAS solution adopted, the demarcation point would be further back in
    the network.

[^27]: In the *E911 Third Report and Order*, for example, the Commission
    expressed reluctance to mandate a handset solution for Phase II.
    *See* Revision of the Commission's Rules To Ensure Compatibility
    with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102,
    *Third Report and Order*, 14 FCC Rcd 17388, 17398-405, paras. 19-34,
    (1999)(*E911 Third Report and Order).*

[^28]: Petition for Reconsideration at 7 *citing* *King County Letter*
    at 3-4; Joint Petitioners' Reply Comments at 7-9. *See also* Cal-One
    Comments at 4-7, CenturyTel Comments at 3, Dobson Comments at 4-5,
    Sprint Comments at 3-5, Nextel Reply Comments at 4-7. Nextel, in
    particular, contends that there is "nothing fundamentally different"
    in the functions performed by both that would justify their
    disparate treatment, and that TX-CSEC's reliance on *US Cellular* to
    support the Commission's disparate treatment is misplaced because
    *US Cellular* dealt with the "alteration of the cost recovery
    scheme," whereas the present proceeding concerns "imposing any
    particular E911 responsibilities." Nextel Reply Comments at 4-7
    *citing* United States Cellular Corporation v. Federal
    Communications Commission, 254 F.3d 78 (D.C. Cir. 2001)(*US
    Cellular*); *see also* TX-CSEC Comments at 6-7, Joint Petitioners'
    Reply Comments at 9, Joint Commenters Opposition at 5-7.

[^29]: *US Cellular,* 254 F.3d at 87.

[^30]: *See* Joint Commenters Opposition at 3 n.6.

[^31]: The language at issue reads, in pertinent part, as follows:
    "Thus, an interpretation of section 20.18(d) must account for the
    presence of the existing E911 Wireline Network, which is maintained
    by the ILEC and paid for by PSAPs through tariffs. . . . The E911
    Wireline Network thus consists of: the 911 Selective Router; the
    trunk line between the 911 Selective Router and the PSAP; the ALI
    database; and the trunk line between the ALI database and the PSAP."
    *Se*e King County Letter at 3-4.

[^32]: *See* Petition for Reconsideration at 5 *citing* Verizon Comments
    to *First Public Notice* at 2-4, VoiceStream Comments to *First
    Public Notice* at 6-8, 10-11, Sprint Comments to *First Public
    Notice* at 7, 14-15; VoiceStream *ex parte* filing of February 6,
    2001 at 4-6, 8-9 (VoiceStream *Ex Parte Filing*).

[^33]: *See* TX-CSEC Comments at 11.

[^34]: *US Cellular* *,* 254 F.3d at 84.

[^35]: Petition for Reconsideration at 5 *citing* Sprint Comments to
    *First Public Notice* at 9-11.

[^36]: Petition for Reconsideration at ­­5 *citing* Verizon Comments to
    *First Public Notice* at 3-5, VoiceStream Comments to *First Public
    Notice* at 6-11, Qwest Comments to *First Public Notice* at 10-14.

[^37]: *See* Cal-One Comments at 9, Dobson Comments at 2-3; *but see*
    TX-CSEC Reply Comments at 3-4.

[^38]: *See* *US Cellular,* 254 F.3d at 88-89. *See also City of
    Richardson* at paras. 28-29.

[^39]: Petition for Reconsideration at 8-10; *see also* Joint
    Petitioners' Reply Comments at 7-9.

[^40]: *E911 Second Memorandum Opinion and Order*, 14 FCC Rcd at 20867,
    para. 40.

[^41]: *See* Petition for Reconsideration at 8-14. *See also, e.g.*,
    Cal-One Comments at 3-4, Nextel Reply Comments at 2-4. Section
    553(b) and (c) of the APA provides, with exceptions not relevant
    here, that a "\[g\]eneral notice of proposed rule making shall be
    published in the *Federal Register*" and that, "\[a\]fter notice
    required by this section, the agency shall give interested persons
    an opportunity to participate in the rule making through the
    submission of written data, views, or arguments."

[^42]: Those issues include the use of a handset as opposed to a network
    solution in implementing Phase II (*see E911 Third Report and
    Order*, 14 FCC Rcd at 17391-92, paras. 6-8); call validation and 911
    calls from non-service-initialized phones (*see* *E911 First Report
    and Order*, 11 FCC Rcd at 18689-99, paras. 24-46; Revision of the
    Commission's Rules To Ensure Compatibility with Enhanced 911
    Emergency Calling Systems, CC Docket No. 94-102, *Memorandum Opinion
    and Order*, 12 FCC Rcd 22665, 22673, paras. 13-14, (1997)(*E911
    First Memorandum Opinion and Order);* Revision of the Commission's
    Rules To Ensure Compatibility with Enhanced 911 Emergency Calling
    Systems, CC Docket No. 94-10 2, *Second Report and Order*, 14 FCC
    Rcd 10954 (1999)(*E911 Second Report and Order);* Revision of the
    Commission's Rules To Ensure Compatibility with Enhanced 911
    Emergency Calling Systems, CC Docket No. 94-102, RM-8143, *Report
    and Order*, rel. Apr. 17, 2002)*;* measurement technologies and
    accuracy requirements for Phase II caller location requirements
    (*see E911 First Report and Order,* 11 FCC Rcd at 18711-12, paras.
    70-72; *E911 Third Report and Order*, 14 FCC Rcd at 17417-23, paras.
    66-77), and wireless carrier cost recovery (*see E911 Second
    Memorandum Opinion and Order,* 14 FCC Rcd at 20852-54, paras.
    3-6)*.*

[^43]: Petition for Reconsideration at 8-14. In *Martin*, for example,
    the Supreme Court stated that, "in situations in which 'the meaning
    of \[regulatory\] language is not free from doubt,' the reviewing
    court should give effect to the agency's interpretation so long as
    it is 'reasonable,' that is, so long as the interpretation 'sensibly
    conforms to the purpose and wording of the regulations.'" Martin v.
    Occupational Safety and Health Rev. Comm'n, 499 U.S. 144, 151
    (1991)(*Martin*) *citing* Ehlert v. United States, 402 U.S. 99, 105
    (1971) and Northern Indiana Pub. Serv. Co. v. Porter County Chapter
    of Izaak Walton League of America, Inc., 423 U.S. 12, 15 (1975).
    Bracketed language in original. Petitioners' citation to *Caruso,*
    in which the court held that an "agency cannot adopt vague
    requirements 'and then give it concrete form only through subsequent
    less formal interpretations'" is also inapposite. Caruso v.
    Blockbuster-Sony Music Entertainment, 174 F.3d 166, 174-75 (3d Cir.
    1999)(*Caruso*). *See* Petition for Reconsideration at 8 n.30.

[^44]: *See also* Trinity Broadcasting of Florida, Inc. v. Federal
    Communications Commission, 211 F.3d 618 (D.C. Cir. 2000), Cassell
    and Kelley Communications, Inc. v. Federal Communications
    Commission, 154 F.3d 478 (D.C. Cir. 1998).

[^45]: *See Beehive Telephone, Inc. v. Bell Operating Cos.*, 12 FCC Rcd.
    17930, 17938-39, para. 16, (1997), *petition for review dismissed in
    part and denied in part, Beehive Telephone Co., Inc. v. FCC,* 179
    F.3d 941 (D.C. Cir. 1999).

[^46]: *See* Petition for Reconsideration at 4-6; *see also* CenturyTel
    Comments at 2, Dobson Comments at 3, Joint Petitioners' Reply
    Comments at 2-3.

[^47]: For example, in this order, we address arguments that: (1) King
    County's request is an impermissible collateral attack and an
    untimely petition for reconsideration (para. 23); (2) the Bureau's
    decision contravenes cost-causer principles, state law, and historic
    practice (para. 17); and (3) the Bureau's decision unreasonably
    discriminates among wireless and wireline carriers (para. 13-14).

[^48]: *See* para. 17 *supra*.

[^49]: The fact that the Bureau did, in fact, solicit comments on the
    cost allocation issue, in an attempt to promote a dialogue among the
    parties, does not alter this result.

[^50]: Petition for Reconsideration at 5 *citing* VoiceStream *Ex Parte
    Filing* at 2-3. Petitioners' assertion references an earlier
    argument made by VoiceStream in response to the *First Public
    Notice*. In its comments, VoiceStream contended that the King County
    request must be dismissed, "insofar as it seeks a redefinition of
    the PSAP E911 network to exclude the facilities and database
    components needed for wireless E911 calls." *See* VoiceStream *Ex
    Parte Filing* at 2-3. VoiceStream's argument is predicated on a
    misconstruction of the nature of King County's request.

[^51]: *See* *King County Letter* at 1 n.2.