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The evolution of wireless technology is providing Americans with incredible communication capabilities. These same capabilities are posing novel issues for wireless carriers, regulators, and subscribers. Among the most confusing are those spawned by new technology that can pinpoint the exact location of a mobile device. Provision and use of this technology is already demanding significant societal trade-offs. The driving force behind location technology — and the one aspect of this issue on which everyone seemingly agrees — is the need for accurate location information for wireless 911 calls. Obviously, the better the location information available to a 911 dispatcher, the more effectively emergency aid can be delivered. Currently, when a person dials 911 from a wired phone, emergency dispatchers in most areas of the country see the caller’s address displayed on their computer screen. When a person dials 911 from a wireless phone, however, dispatchers have only limited information, if any, about the caller’s location. The Cellular Telecommunications and Internet Association (CTIA) estimates that the nation’s 110 million wireless phone users make more than 120,000 emergency calls per day. The Association of Public-Safety Communications Officials International (APCO) estimates that in some areas nearly 70 percent of the calls to 911 centers are from wireless phones. To pinpoint these callers’ locations, significant upgrades must augment the tracking capabilities of either the wireless carrier’s network or the wireless phones themselves. In addition, 911 centers have to upgrade hardware and software to receive and make use of the information. Years ago, both the wireless industry and the public safety community grasped the importance of developing enhanced 911-E911-technologies for wireless. They drew in the Federal Communications Commission, which set an ambitious timetable for deploying location technology. TIME FOR WIRELESS? Under current FCC rules, E911 location technology is to be implemented in two phases. Under Phase 1, which began in 1998, wireless carriers are required to provide 911 centers with the telephone number associated with the incoming call. This enables the emergency dispatcher to call back if the call is inadvertently terminated. Carriers also are to provide rudimentary location information by identifying the cell site handling the call. Wireless carriers have invested in the network upgrades to make this information available. The challenge has been largely to upgrade the 911 centers’ equipment and landline phone connections to receive and use the information. Under Phase 2, the required location information will be far more detailed. Depending upon the technology selected by the carrier, the provider will have to locate wireless phones within 50 meters 66 percent of the time or within 150 meters 95 percent of the time. Two general types of location technology have been developed: a network-based technology, which allows the wireless network to constantly recalculate by triangulation a wireless device’s location; or a handset-based technology, which typically places a computer chip in each phone and then uses global-positioning-system (GPS) satellites to locate the phone. Recently, a hybrid system using both network and handset technologies has been developed. The FCC allows each wireless carrier to choose a technology, but has separate timetables for the network- and handset-based options. Carriers that choose a network technology must provide location information for 50 percent of their local customers within six months of a request from a public safety authority, and for 100 percent of their customers within 18 months of the request. Public safety authorities can ask such carriers to begin delivering location information by Oct. 1, 2001. Carriers that opt for handset technology must begin selling wireless phones with location capabilities by Oct. 1, 2001, regardless of whether any local public safety authority has requested Phase 2 information. New or upgraded phones must be in the hands of 95 percent of subscribers by Dec. 31, 2005. WHERE’S THE TECHNOLOGY? Despite ongoing improvements in location technology, it is now obvious that the FCC’s timetable may have underestimated the time, technical challenges, and costs involved. To justify the enormous expense that location technologies impose on wireless carriers, the FCC suggested that carriers will be able to offset those costs by offering potentially lucrative location-based commercial services. But the agency did not point out that no wireless carrier anywhere in the world is capable of providing location information anywhere near the degree of accuracy mandated by the FCC. The agency also did not deal with the complex issue of personal privacy when location information is harnessed. Three major wireless carriers — AT&T Wireless, Nextel, and VoiceStream — have determined that the Phase 2 location technologies best suited to their networks do not yet meet the FCC’s location parameters or will not be available by the initial deadline. Each has formally requested that the FCC waive the deadline and extend the time for compliance. More carriers are sure to follow. FCC Chairman Michael Powell has stated that he still expects the Oct. 1 deadline to be “substantially met.” From the experience of the three carriers that have already spoken up, however, it is apparent that the state of location technology is not consistent with the FCC’s ambitious timetable. Fundamentally, neither the carriers nor the agency has any real control over the developers of wireless network infrastructure or the manufacturers, who have to design, test, and produce equipment that complies with the FCC’s strict specifications. While several developers claim they have produced equipment that meets those specifications, their claims are at odds with those of carriers that have tested the same equipment. Because the carriers typically have to sign nondisclosure agreements regarding such testing, there may be no way to publicly determine if location technologies are ready for prime time. A TWO-WAY STREET Assume the carriers can provide Phase 2 location information. It will be useless if local 911 centers do not have the technology to receive and process the data. Under the FCC’s rules, carriers are required to provide wireless location information only after 911 centers actually upgrade their equipment and formally request delivery of that information. But these upgrades are not cheap. And while some wireless carriers have volunteered to underwrite some of the upgrade costs, local public safety authorities still need significant additional funding. Despite its own problems, the public safety community has been largely unsympathetic about the Phase 2 implementation challenges faced by carriers. APCO, for example, is lobbying the FCC to ensure that location technology is deployed on the original timetable. The group has also announced a demonstration project, called LOCATE, through which public safety authorities in nearly every state will request location service from every wireless carrier beginning on Oct. 1. Another public safety group, the National Emergency Number Association, recently participated in a Phase 2 readiness test of currently available location equipment and determined that the equipment met FCC specifications. This insistence on full and timely performance by carriers may be due to the public safety community’s own desire not to seem unprepared. The fact is that a number of 911 centers were not ready to receive Phase 1 information in 1998. Many still are not Phase 1 capable. Indeed, many hope to move directly from receiving no location information to receiving Phase 2 information. They do not want any further implementation delays attributed to them. ARE YOU FOLLOWING ME? Once deployed, Phase 2 location technology will have important privacy implications in several areas. Some privacy advocates argue that federal legislation is needed to establish what is and is not acceptable use of location information, particularly by law enforcement agencies. Recent legislation clarified that any privacy protections to which a subscriber would be entitled are waived for purposes of 911 calls. But it is not clear how far this waiver extends. In fact, there are no FCC rules restricting the use of E911 location information by public safety authorities for purposes beyond emergency assistance. As the FCC has suggested, location information could also have a catalytic effect on mobile commerce, or m-commerce. For some subscribers the era of wireless Internet access has arrived, and for others it is not far off. What happens when wireless Internet access is joined with wireless location technology? Businesses could target wireless subscribers as they walked, ran, or drove by. A map Web site, for example, could be matched with a restaurant site and instantly offer reviews, discounts, and other promotional items to passing subscribers. Offers could even be tailored to an individual’s personal preferences. It is not only carriers who are interested in m-commerce. Third parties, like OnStar and other concierge services, could embed GPS chips in mobile phones, personal digital assistants, and other wireless devices. The ability of anyone with the right equipment to identify and locate a wide range of such devices is not far away. Much like the wired Internet, m-commerce and location technology together could unleash a flood of unwanted solicitations and mining of personal data. Obviously, carriers and third parties that collect data will need to develop privacy and data retention policies. Cooperation will be needed in areas where cooperation may not be in everyone’s self-interest. The CTIA, for example, recently requested that the FCC adopt safe harbor principles (including notice, consent, and opt-out provisions) for dealing with carrier use of subscribers’ location information. Interestingly, some of the CTIA’s own largest members were silent or directly opposed FCC intervention on these privacy issues. Those opposing carrier-specific rules are concerned that they may ultimately be placed at a competitive disadvantage if they protect privacy or location data more rigorously than others with access to location information. CAN WE JUST START OVER? Given the far-reaching impact of wireless location technology, it is not surprising that various interest groups have started pointing fingers. With its Phase 1/Phase 2 plan, the FCC intentionally set off a regulatory chain of reaction: Local public safety interests pressure wireless carriers to deploy location technology; wireless carriers, in turn, pressure manufacturers to design effective and cost-efficient equipment. But this was supposed to take place on a timetable that has since proved unrealistic. The technological, financial, and privacy realities of location identification were not adequately considered. At this point, Phase 2 implementation looks more like a shoving match, with the FCC as the reluctant referee. There is still hope — if the FCC steps into the fray, evaluates the conflicting claims regarding the availability and performance of Phase 2 technologies, and forges new alliances among interested parties. On the other hand, if the FCC sticks to its original timetable and begins to fine carriers for their failure to implement Phase 2, the situation will further devolve, potentially into litigation. And that will mean that the launch of true E911 will be further delayed — to no one’s benefit. Laura H. Phillips is a partner and Jason E. Friedrich is an associate at D.C.’s Dow, Lohnes & Albertso, practicing in the area of telecommunications, especially wireless, broadband, and wireline communications. Dow, Lohnes represents a variety of clients in the wireless field, including several carriers.

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