STATEMENT OF

COMMISSIONER MICHAEL COPPS

**Concurring in Part, Dissenting in Part**

Re: *Revision of the Commission's Rules To Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, Request for Waiver by Cingular
Wireless LLC, Sprint Spectrum L.P. d/b/a Spring PCS, Verizon Wireless,
AT&T Wireless Services, Inc., Nextel Communications, Inc.*

When dealing with life critical technology, especially in today's
environment, we cannot conduct "business as usual." We must make extra
effort, expend extra resources, and do a better job. None of us has done
that in the context of E911. Many carriers have not met deadlines for
deploying E911 systems and handsets. Many manufacturers have not made
equipment and software upgrades available quickly enough. Many in the
public safety community have not secured funding for upgrades or made
adequate progress towards installing needed new equipment. Importantly,
the Commission is only now dealing with dozens of pending waivers at the
last possible moment and in a way that is not consistent with its stated
waiver standard.

We can do better than this -- we *must* do better than this. Enhanced
911 will save lives. We all therefore have a special responsibility to
work hard to make certain our wireless networks are E911 compliant so
they are better able to help Americans when there is an emergency. If
there was ever any doubt about the value of wireless communications to
public safety, recent events have completely erased them. Wireless
communications save lives today. By making E911 a reality, we will
improve our networks and equipment so that they will save far more lives
in the future.

Yet today the Commission decides to grant waivers that excuse compliance
with our October 1, 2001 deadline and push compliance benchmarks far
into the future. I fear that because of this decision consumers will not
have E911 services as quickly as they deserve, and in the coming months
and years we will see more waiver requests, more finger pointing, and
unacceptably slow progress. The country cannot afford to go down that
road. I hope instead that carriers and manufacturers will not seek
further extensions based on arguments of more vendor delay, technology
failure, or the fact that the Commission today grants some carriers far
more lenient compliance schedules than others. I hope that PSAPs move
forward quickly to do their part and modernize their facilities. And, I
hope that, when faced with compliance failures or waiver requests, the
Commission holds fast and requires carriers to live up to the promises
made in the waiver requests we dispose of today.

I respectfully dissent from the Nextel and Verizon Orders because the
underlying requests do not satisfy our waiver requirements. These
requests do not give us "a clear path to full compliance," and do not
come "as close as possible to full compliance." I also would have
preferred that the Commission include stronger compliance language in
all of today's Orders that would have made it clear that carriers have
the burden of proving that they have met each benchmark they have agreed
to, that failure to meet a benchmark will result in enforcement action
and punitive measures, and that waivers that seek changes to these
benchmarks will be received with suspicion.

For these reasons I concur in the result of the *AT&T*, *Cingular*, and
*Sprint* Orders, agree with the *City of Richardson* Order, and
respectfully dissent from the *Nextel*, and *Verizon* Orders.

# Previous Commission Action on E911

In 1996 the Commission worked closely with the public safety community
and the wireless communications industry to devise E911 rules.[^1] In
the *E911 First Report and Order*, the Commission and industry began the
process of making our national wireless system able to report the
location of an emergency call to public safety personnel. As part of
this proceeding, the Cellular Telecommunications Industry Association
and various members of the public safety community suggested that the
Commission require "Phase II" compliance within five years in a
"Consensus Agreement" filed on the record on February 12, 1996.[^2]
Recognizing the complexity of achieving Phase II compliance, the
Commission agreed with CTIA and the public safety community and provided
industry with a full five years to reach "Phase II" compliance.[^3]
Thus, carriers knew on July 26, 1996 that their systems would have to
achieve Phase II compliance on October 1, 2001, as they had proposed.

The Association of Public Safety Communications Officials (APCO), the
National Emergency Number Association (NENA), and the National
Association of State Nine One One Administrators (NASNA) therefore
recently stated, "The Commission established its rules five years ago,
and carriers and their suppliers have long known that deployment must
begin on October 1, 2001. Thus, the Commission must stand firm on this
and other deployment deadlines. Otherwise there will be little incentive
for carriers and others to fulfill the promise of wireless E9-1-1."[^4]

In several subsequent Orders, the Commission relaxed the Phase II
requirements, delayed compliance dates, and allowed more flexibility in
the types of technologies that could be used to achieve Phase II
compliance.[^5] As part of allowing the use of handset-based
technologies, the Commission relaxed the five-year period for achieving
Phase II compliance in order to achieve the greater location accuracy of
GPS. Therefore, carriers were allowed to chose between network
technologies that were required to be in place by October 1, 2001 and
handset technologies on a delayed schedule. This delayed schedule
required initial availability of Phase II compliant phones by March 1,
2001, compliance of 50% of new phones sold by October 1, 2001, and
compliance of 100% of new phones sold within six months of a PSAP
request received after October 1, 2001.[^6]

In the *E911 Fourth Memorandum Opinion and Order*, the Commission
delayed compliance yet again. Responding to carrier and manufacturer
arguments that handset technologies were behind schedule, the Commission
extended compliance deadlines as follows: initial availability of
compliant phones was delayed until October 1, 2001, 25% compliance of
new phones was delayed until December 31, 2001, 50% compliance was
delayed until June 30, 2002, and 100% compliance was delayed until
December 31, 2002. Carriers were required to achieve 95% compliance of
all phones in their network by December 31, 2005, a delay of one year.

The Commission found that adopting further delays would not be in the
public interest. It stated that:

> "We find that \[additional proposed delay\] would substantially reduce
> the public safety benefits of Phase II, leaving many wireless 911
> callers without the benefits of ALI for a greatly extended period of
> time. Such delay also would compound the increasing burdens that
> rapidly growing numbers of wireless 911 calls impose on PSAPs.
> Emergency call takers now must devote critical time and resources to
> questioning wireless 911 callers to determine their location.
> Emergency response teams must often waste critical minutes -- or
> longer -- searching for those callers. Further, we determine that any
> wholesale deferral of the handset deployment schedule would be unfair
> to the many competitors who have been working to timely develop and
> market other ALI solutions . . . . A radical extension of the handset
> phase-in schedule . . . would amount to a decisive and unwarranted
> preference for handset-based technologies, substantially altering the
> terms of the competition between technologies . . . *[In sum, we
> conclude that the public interest and the public safety do not support
> a substantial delay in the current handset deployment
> schedule]{.underline}*. Even if some major handset manufacturers prove
> unable or unwilling to produce ALI-capable handsets in the near
> future, we believe the public safety will be better served if carriers
> are required to deploy other available ALI solutions, including GPS
> handsets that may be available from other manufacturers, according to
> the timetable we set herein. To allow the lengthy delay requested by
> some parties, would, in our view, jeopardize the progress made to date
> in the development of ALI solutions."[^7]

Despite this finding, and despite a long history of delays of E911
implementation schedules, the majority has now granted waivers for
Nextel and Verizon that allow a "radical extension of the handset
phase-in schedule" after the Commission found such a delay to be against
the public interest a mere 12 months ago. While the delay the Commission
faced then was not identical to the one it faces now, it was similar in
scale. Nearly doubling the time after our October 1, 2001 deadline in
which Nextel may continue to sell non-compliant handsets, and accepting
schedules that place our 2005 end date in grave danger, as we do today,
can only be seen as a "radical extension."

# The Waivers Before the Commission

The Commission has created a special standard for E911 waiver requests.
In the *E911 Fourth Memorandum Report and Order* the Commission stated
that:

> Waivers thus should not generally be warranted, especially in light of
> the vital public safety benefits of Phase II. In those particular
> cases where waivers may be justified, however . . . we expect waiver
> requests to be specific, focused and limited in scope, and with *[a
> clear path to full compliance]{.underline}*. Further, carriers should
> undertake concrete steps necessary to come *[as close as possible to
> full compliance]{.underline}* . . . .[^8]

Several carriers have met this standard in their waiver requests.
Sprint, AT&T (GSM), and Cingular (GSM) make firm commitments to begin
offering consumers Phase II compliant handsets on October 1 or, in the
case of AT&T, as soon as the first GSM phone is available. They each
have made enforceable promises to sell only Phase II handsets, and to
have all switch upgrades complete, by the end of next year. The
Commission will be able to monitor the progress of these carriers
through quarterly reports, and will be able to bring enforcement actions
if any of the carriers miss any of their benchmarks. These compliance
plans thus give us "a clear path to full compliance," and come "as close
as possible to full compliance."

The Nextel and Verizon waiver requests do not meet our waiver standard.
Nextel will not make a single compliant phone available until December
2002 -- by which time Sprint, AT&T, and Cingular have promised to sell
*[only]{.underline}* compliant phones. Nextel will continue to sell
non-compliant phones far into the future, not reaching 100% compliance
of new handsets until December 2004 -- nearly two years behind Sprint,
and two years and two months behind Cingular. In addition, Nextel's
request indicates that the company will be able to have 95% of its
entire imbedded base of handsets compliant only one year after it stops
selling non-compliant phones. This seems unlikely to me, even with the
large number of corporate customers Nextel describes in its comments.
Even the evidence Nextel proffers related to turnover of
Internet-capable phones show that they required more time for handset
turnover than allowed in this order. These extreme delays and unlikely
benchmarks do not give us "a clear path to full compliance," or come "as
close as possible to full compliance."

Similarly, Verizon will not sell a single compliant handset by the
October 1 deadline. It will continue to sell non-compliant phones until
December 2003 -- a full year later than Sprint despite using similar
technology and a year and three months later than Cingular.
Additionally, Verizon depends on Motorola switches for a substantial
portion of its network. Motorola has stated that it will not be able to
make its switches compliant until March 2003. This will leave a
substantial number of Verizon customers without even the possibility of
Phase II E911 services, even if they purchase a compliant handset, for a
year and six months after the October 1, 2001 deadline. Again, these
extreme delays and manufacturer uncertainties do not give us "a clear
path to full compliance," or come "as close as possible to full
compliance."

Nextel's asserts that its use of iDEN technology and reliance on
Motorola for equipment availability puts it in a different position than
other carriers. Verizon states that it was delayed because its original
E911 technology failed, and because it also depends on delayed equipment
availability from Motorola. I believe that carriers have significant
control over their vendors and can speed equipment availability through
financial and contractual pressure. In the end it is the carrier's
responsibility to meet E911 responsibilities. I recognize the need for
flexibility because of equipment availability. I support such
flexibility where delays are brief in the Sprint, AT&T, and Cingular
waivers. Problems with suppliers should not, however, excuse radical
departures from carriers' responsibilities.

# Enforcement Language

The majority grants all five E911 waiver requests because the carriers
commit to deployment schedules. These schedules include dates of initial
handset availability, dates when various interim benchmarks will be met,
dates when switch upgrades will be complete, and the December 31, 2005
date by which all carriers must have 95% of their entire base of
handsets Phase II compliant. In order for these schedules to move us
towards "full compliance" carriers must understand that the benchmarks
are not targets but commitments. If a carrier misses a benchmark it must
expect that the Commission will begin an enforcement action, even if it
missed the benchmark because its vendor fails to make equipment or
software available on time. Carriers should also understand that waivers
will not be granted merely because a technology fails to work as
expected or because of delays by a vendor.

To make this perfectly clear, I would have preferred to include stronger
enforcement language with each Order. This language would have made it
explicit that the Carriers themselves offered the schedules and
benchmarks and that therefore we would not expect to grant any future
waiver based on an argument that these schedules and benchmarks are
unreasonable or unobtainable. I also would have preferred language that
made it clear that the carriers had the legal burden of proving that
they had met each benchmark, and that mere assertions that they met
these benchmarks would be insufficient.

The Orders, unfortunately, do not include this stronger enforcement
language. However, the majority has made efforts to strengthen the
language to the point that I can concur in the result of granting the
Sprint, AT&T, and Cingular waivers. I believe, nonetheless, that the
addition of stronger language would have made the Orders far more
effective.

**[Smaller and Rural Carriers]{.underline}**

The Commission also received a number of waiver requests from smaller
carriers and rural carriers. Because we do not have an adequate record
on how to treat smaller and rural carriers, and because hundreds of
carriers have not filed waivers or indicated the status of their E911
deployment, the Commission will delay enforcement of its E911 rules for
these carriers for a brief period.

I support this action because many small and rural carriers have unique
situations and the Commission must carefully consider how to address
these situations. However, the fact that we must delay on the very week
when carriers are supposed to meet E911 requirements demonstrates why it
was a bad idea to wait so long to deal with this issue. We should not
have to be in this situation. When, after developing a record, we decide
how to address the situations of small and rural carriers, I will seek
reporting requirements and benchmarks that, while sensitive to these
carriers' differences from the major carriers, nevertheless are strong,
enforceable, and in concert with "a clear path to full compliance."

# Conclusion

I am encouraged that the December 31, 2005 deadline by which 95% of all
carriers handsets must be Phase II compliant is not postponed in any of
these Orders. This date is critical, and now all six major carriers have
stated that it is reasonable and that they will meet it. This date must
not be allowed to slip.

We have a long way to go to meet this responsibility. Carriers,
manufacturers, PSAPs and the Commission must all rally around the goal
of making E911 fully available to the American people before the end of
2005. In every moment of national emergency our country has faced,
American workers, American enterprise, and American leaders have come
together not only to meet, but to exceed critical production and
infrastructure needs. We are in such an emergency now. To me, and I
think to a vast majority of my fellow citizens, our challenge is clear.

[^1]: *See E911 First Report and Order*, 11 FCC Rcd 18676.

[^2]: *Id.* at ¶ 23.

[^3]: *Id*.

[^4]: *Additional Ex Parte Comments of APCO, NENA and NASNA* at 2.

[^5]: *See E911 Reconsideration Order*, 12 FCC Rcd 22665 (1997); *E911
    Second Memorandum Opinion and Order*, 14 FCC Rcd 10954.

[^6]: *E911 Third Report and Order*, 15 FCC Rcd 17388, at ¶ 9 (1999).

[^7]: *E911 Fourth Memorandum Opinion and Order* ¶¶ 26-30 (emphasis
    added).

[^8]: *Id.* at ¶ 44 (emphasis added).