Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 in the Matter of Public Safety and Homeland Security Bureau

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In the Matter of ) ) Public Safety and Homeland Security Bureau ) Seeks Comment on Emergency Access to ) PS Docket No. 20-285 Wi-Fi Access Points and Spectrum for ) Unlicensed Devices Pursuant to Section 301 ) of Ray Baum’s Act of 2018 )

COMMENTS OF NCTA – THE INTERNET & TELEVISION ASSOCIATION

Rick Chessen Neal Goldberg Danielle J. Piñeres NCTA – The Internet & Television Association 25 Massachusetts Avenue, NW – Suite 100 Washington, DC 20001-1431 (202) 222-2445

October 1, 2020

Table of Contents

INTRODUCTION AND SUMMARY ...... 1

I. CABLE BROADBAND OPERATORS REGULARLY OPEN THEIR WI-FI APS TO THE PUBLIC VOLUNTARILY IN EMERGENCIES ...... 3

II. WI-FI APS CANNOT BE USED FOR 911 SERVICES WHEN MOBILE NETWORKS ARE DOWN ...... 5

A. Wi-Fi APs Cannot Route 911 Calls to PSAPs or Distinguish Between 911 Calls and Other Internet Traffic ...... 5

B. Client Device Capabilities Hinder Streamlined Access to Wi-Fi Networks for 911 Calling ...... 7

C. Wi-Fi APs Are Not Capable of Delivering Location Information to PSAPs ...... 8

D. Other Challenges Also Would Impede 911 Calling Over Wi-Fi ...... 11

III. WI-FI OPERATIONS ARE NOT BETTER SITUATED THAN MOBILE NETWORKS TO STAY CONNECTED DURING EMERGENCIES ...... 12

IV. STATUTORY LIABILITY PROTECTIONS FOR WIRELESS AND IVOIP SERVICE PROVIDERS’ 911 ACTIVITIES MAY LEAVE WI-FI NETWORK OPERATORS EXPOSED ...... 14

V. PRIVACY AND SECURITY CONCERNS ALSO PRESENT A BARRIER TO ENABLING WIDESPREAD 911 SERVICES OVER WI-FI APS IN EMERGENCIES...... 17

CONCLUSION ...... 18

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

COMMENTS OF NCTA – THE INTERNET & TELEVISION ASSOCIATION

NCTA – The Internet & Television Association (NCTA) comments herein on the public

notice issued by the Public Safety and Homeland Security Bureau (Bureau) released September

1, 2020 (Public Notice).1 The Public Notice seeks comment, as directed in Section 301 of RAY

BAUM’s ACT of 2018, on the public safety benefits, technical feasibility, and cost of making

Wi-Fi access points (APs) and other unlicensed technologies available to the public for access to

911 service in emergencies when mobile service is unavailable.2

INTRODUCTION AND SUMMARY

Cable broadband providers have for many years voluntarily opened operational Wi-Fi

APs for registration and use by the public to provide Internet access at no cost during times of

emergency, allowing people to remain connected to information and loved ones when they need

it most. However, such access is limited by the technical capabilities of Wi-Fi infrastructure and

1 Public Safety and Homeland Security Bureau Seeks Comment on Emergency Access to Wi-Fi Access Points and Spectrum for Unlicensed Devices Pursuant to Section 301 of Ray Baum’s Act of 2018, Public Notice, PS Docket No. 20-285, DA 20-1003 (rel. Sept 1, 2020) (Public Notice). 2 Id. at 1.

end-user devices, as well as the impact of emergency circumstances on Wi-Fi networks. These

comments describe how these limitations would make any requirement for Wi-Fi APs to open

for automatic public access and provide 911 services in times of emergency when mobile

networks are unavailable technically unworkable.

Wi-Fi APs are equipped to provide Internet connectivity in emergency situations, but

only after user registration, and only in locations where power and backhaul to those APs remain

available. Notably, Wi-Fi APs lack mechanisms to facilitate 911 call routing and location

services without the support of a mobile network, and in fact cannot distinguish between 911

calls or texts and other data traffic transiting the Wi-Fi network. First, Wi-Fi APs and networks lack direct connections to PSAPs and any mechanisms to identify, evaluate, or transmit

actionable location information about a 911 caller to a PSAP—those activities require the

participation of a functional underlying mobile network operator (MNO) network. When a

device dials 911 over a Wi-Fi calling service, the call will either default to the underlying MNO

network, or, if the MNO radio access network is down, the Wi-Fi AP can serve as an on-ramp

for the Wi-Fi calling service to reach the underlying mobile core network to enable routing

directly to a local PSAP. It is the Wi-Fi calling service or application, not the Wi-Fi AP, that

transmits the user’s pre-registered emergency location with the call.

Second, the Wi-Fi ecosystem’s decentralized array of service providers, access points,

and devices lacks the capabilities to allow for automatic, secure identification and authentication

of devices with Wi-Fi networks. Significant liability, privacy, and cybersecurity concerns would

need to be addressed before automatic and unauthenticated connection capabilities could be built

into Wi-Fi devices and equipment. Moreover, end users must affirmatively enable Wi-Fi calling

on a device and with a Commercial Mobile Radio Service (CMRS) provider or application.

Broadband providers do not have control over the device or user’s settings or interactions with

the underlying mobile service or application provider.

Third, if a disaster or other phenomenon has disrupted power and backhaul for an MNO,

it is likely that power outages and/or damage have also disrupted the ability of Wi-Fi APs to

provide reliable connectivity. And unlike managed service provider networks, which maintain

power back-up at network facilities, the vast majority of residential customers do not have any such back-up power to enable operation of Wi-Fi APs when power is out.

In light of these significant limitations, NCTA urges the Commission to report to

Congress that open access to Wi-Fi APs and the delivery of 911 communications services to the public over Wi-Fi APs are not technically or operationally viable and that, while Wi-Fi hotspots can provide much-needed connectivity in some areas where CMRS radio networks are disrupted,

Wi-Fi cannot substitute for MNO core networks in delivering 911 calls.

I. CABLE BROADBAND OPERATORS REGULARLY OPEN THEIR WI-FI APS TO THE PUBLIC VOLUNTARILY IN EMERGENCIES

For many years, cable broadband providers have voluntarily opened their Wi-Fi networks

for public use at no cost in areas affected by natural disasters and other emergencies. In these

situations, cable providers typically ask new users to register with the AP before connecting to

comply with the Wi-Fi protocol, to add security, and to allow persistent connectivity. Most recently, many NCTA members have enabled no-cost access to business and outdoor Wi-Fi

hotspots during the COVID-19 pandemic.3 They have similarly offered free Wi-Fi access to

3 See Responding to the COVID-19 Outbreak, NCTA (2020), https://www.ncta.com/response (“Cable operators’ efforts include: opening Wi-Fi hotspots, pausing data plans, expanding internet access for low-income families and more.”).

communities affected by hurricanes, fires, and other natural disasters .4

Wi-Fi access can provide important Internet connectivity to the public that is not otherwise available. For example, individuals and families without broadband at home can use certain cable-provided hotspots today to engage in distance learning and telework, purchase

groceries and other essentials, and search for jobs. These Wi-Fi hotspots also can facilitate connection to the Internet and Wi-Fi calling so that individuals impacted by natural disasters can

access up-to-date weather and safety information, notify others of their whereabouts, or seek

help.

Cable broadband providers have offered voluntary no-cost Internet access during times of

emergency to leverage existing Wi-Fi infrastructure for the benefit of consumers in need. Cable

APs can provide access to the Internet and Wi-Fi calling for customers who have enabled those functions on their end-user devices through their carrier, the device’ settings, and/or through third-party applications. However, Wi-Fi networks are incapable of independently providing comprehensive voice- and text-to-911 emergency services when mobile networks are unavailable.5 When a user dials 911 from his or her device, even while using a Wi-Fi calling application, the call is routed and terminated to the appropriate PSAP by the application’s underlying mobile network provider and the Wi-Fi AP cannot independently identify or transmit

4 See, e.g., Comcast offers free WiFi, service tips for customers impacted by Hurricane Laura, Shreveport Times (Aug. 26, 2020, 12:37 PM), https://www.shreveporttimes.com/story/weather/hurricanes/2020/08/26/comcast-xfinity-free- wifi-prepares-hurricane-laura/3443575001/; Press Release, Charter Communications, Charter Opens Spectrum WiFi Hotspots Due To Hurricane Dorian (Sept. 6, 2019), https://corporate.charter.com/newsroom/Charter-Opens-Spectrum-WiFi-Hotspots-Due-To- Hurricane-Dorian. 5 See Public Notice at 2.

location details, make routing decisions, or transport the call to the PSAP directly without the

MNO and its core network.

II. WI-FI APS CANNOT BE USED FOR 911 SERVICES WHEN MOBILE NETWORKS ARE DOWN

Wi-Fi APs are designed to provide Internet connectivity and do not have mechanisms themselves to route a 911 call over Wi-Fi to a PSAP or distinguish between data packets transmitting 911 calls or other communications. They must instead route traffic to a functional

MNO network that can direct a 911 call to the PSAP. Wi-Fi APs also do not currently grant spontaneous access to unknown Wi-Fi devices without the user’s authentication, and a broadband service provider does not have visibility into or control over whether (or with which settings) a Wi-Fi-capable end-user device or other service provider enables Wi-Fi calling. In addition, Wi-Fi APs are not location aware and therefore cannot identify or transmit information about a connected client device’s location to a PSAP. For that reason, Wi-Fi calling applications require users to register an emergency address upon initiating service to enable routing of 911 calls to local response centers.

A. Wi-Fi APs Cannot Route 911 Calls to PSAPs or Distinguish Between 911 Calls and Other Internet Traffic

Direct 911 call routing to PSAPs is not possible today over Wi-Fi APs. Wi-Fi APs can, however, serve as a conduit for a 911 call by a user that is routed and administered by the CMRS network of the 911 caller. When a consumer places a voice call to 911 over Wi-Fi, the Wi-Fi AP serves as an on-ramp to connect the end user to an MNO’s network. From there, it is the MNO’s network that routes and transports a 911 call with actionable information to the PSAP. Without the MNO’s network, because, for example, the caller was using a device that was not registered to a MNO’s network or because the MNO’s network was unavailable due to damage or power

loss, a Wi-Fi AP would be unable to route the 911 call to the local response center. Mobile

networks are built to support 911 call routing to PSAPs and related emergency service functions

expediently and accurately, which is why Wi-Fi calling programs on mobile devices default to

the underlying CMRS network when 911 is dialed to ensure the call is handled effectively.

Wi-Fi access points owned by someone other than a telecommunications service provider

also cannot route 911 calls to PSAPs.6 Wi-Fi networks that are not managed by telecommunications companies also lack direct connections to PSAPs and any mechanism or infrastructure to independently transmit and complete a 911 call. It would be impractical, extremely costly and difficult, and unlikely to add to 911 success rates for non- telecommunications providers to attempt to replicate 911 calling networks and connections.

Additionally, because Wi-Fi networks are designed to provide a connection to the

Internet, they lack insight into the type of traffic transmitted by the device. Wi-Fi calling,

including 911 calling, is treated equally to other data applications riding over the Wi-Fi conduit to the Internet and, as a result, Wi-Fi APs are not capable of distinguishing between 911 calls and other data traffic. Given the lack of an identification or prioritization mechanism for emergency services, when a Wi-Fi network is congested—in particular due to increased demand in an emergency—911 calls could be denied, dropped, or delayed. Accordingly, although traffic-agnostic transmission works well for Internet access services, it is not well-suited to the transmission of emergency communications.

For the foregoing reasons, encouraging or requiring access to Wi-Fi APs for 911 services without a functional underlying CMRS network would undermine the Commission’s and

6 See Public Notice at 2.

communications industry’s marked progress towards improving 911 services, and in many

instances, harm consumers by creating false expectations that Wi-Fi could enable emergency services even when mobile networks are unavailable or could operate with the same reliability that consumers know today. Moreover, imposing such a requirement would require fundamental changes to network and systems architecture. Years of standard-setting work within IEEE,

3GPP, NENA, SIP, and other organizations would be required before either service-provider managed or non-managed Wi-Fi APs could implement new mechanisms to support 911 services, drawing resources from or duplicating important efforts to improve other aspects of the 911 ecosystem being developed today.

B. Client Device Capabilities Hinder Streamlined Access to Wi-Fi Networks for 911 Calling

To connect to the Internet or place a voice call over Wi-Fi, a consumer must connect and authenticate his or her device with a Wi-Fi AP and network. Although cable operators have been working to streamline authentication for their customers to access the provider’s managed network hotspots outside the home, including through Passpoint,7 such efforts only benefit

consumers that have selected a particular network provider and affirmatively connected their

device or devices to that network. In contrast, a person who is not a subscriber of the services

provided by the Wi-Fi network operator cannot automatically connect and authenticate with a

Wi-Fi AP, because allowing such spontaneous connections, even under limited circumstances,

7 See Discover Wi-Fi Passpoint: Seamless, Secure Connection to Wi-Fi Hotspot Networks, Wi-Fi Alliance (last visited Oct. 1, 2020), https://www.wi-fi.org/discover-wi-fi/passpoint.

would implicate significant privacy and security concerns. The Wi-Fi AP or network provider also has no way to determine that an emergency call is being attempted by an unknown device.

In addition to registering and authenticating with a Wi-Fi network, a consumer must also enable Wi-Fi calling from their device to permit voice calls. Enabling Wi-Fi voice calling typically involves selecting and turning on a Wi-Fi calling feature on the device, and entering a registered emergency location with the underlying MNO to initiate service and allow for 911-call routing based on that location in the event of an emergency. Neither service provider-controlled

Wi-Fi APs nor non-provider APs have control over the device or user’s default settings or interactions with the underlying mobile service provider.

Third party-offered Wi-Fi calling applications (such as Skype or WhatsApp) also must be downloaded and enabled by the user. Even if the end user has subscribed to a managed Wi-Fi service, the Wi-Fi service provider in that scenario too lacks control over the user’s selection or use of Wi-Fi calling applications. Accordingly, the consumer and their particular end-user device and enabled applications, not the Wi-Fi service provider, determines a caller’s access to

Wi-Fi calling in emergency and non-emergency situations.

C. Wi-Fi APs Are Not Capable of Delivering Location Information to PSAPs

Wi-Fi APs are unable to identify or provide location information for end users connected to the AP. With the exception of strand-mounted public Wi-Fi hotspots, Wi-Fi APs are not equipped with GPS or other technologies employed by mobile carriers (such as for cell tower triangulation) to automatically determine their own location or that of a client device connected to the Wi-Fi network. In fact, Wi-Fi APs are not designed with GPS or similar geolocation technologies for public safety purposes because such systems often would not work in areas where Wi-Fi APs are typically installed, such as inside homes, offices, or other buildings.

Although cable broadband providers that manage large Wi-Fi networks may have some location information associated with its customers’ Wi-Fi APs, as NCTA has described in other contexts, such information is not gathered with a geolocation service or maintained for public safety purposes.8 Instead, location information for a Wi-Fi AP is often manually provided by the

customer, and typically connected to the customer’s billing address for confirmation of service

purposes. For example, a provider may have a database of billing addresses associated with APs

but would have no way of knowing if the billing address associated with the account is the actual

location of the Wi-Fi device. When an enterprise customer provides internal transport across a

large campus or to interstate locations using the same system associated with a single billing

address, a managed Wi-Fi service provider would not have insight into the location of each

individual Wi-Fi AP. Consequently, providers have no way to verify the accuracy of existing customer location data or gather new location information for the Wi-Fi devices attached to their networks.

Even when a customer has registered a location for a particular device—as CMRS customers do when enabling Wi-Fi calling on a mobile device—that location data is stored with the CMRS provider. If the customer dials 911 over Wi-Fi, the CMRS provider uses that registered location to inform where the call should be routed; however, unless the customer updates the registered location as she moves, a 911 call may be routed to an incorrect PSAP.

Further, the customer’s registered location is only available to the CMRS service provider for limited purposes, and not as a resource for Wi-Fi operators. Therefore, without access to the underlying CMRS provider’s customer location data (the sharing of which would implicate

8 See Reply Comments of NCTA – The Internet & Television Association, PS Docket No. 07- 114, at 10-11 (filed June 18, 2019).

significant privacy and security concerns), any routing decisions would be vulnerable to inaccuracies.

Likewise, cable operators may not be aware of or informed about third-party AP systems purchased and deployed by customers and would not have any location information associated with those APs. Short of requiring that customers periodically self-certify their AP location information, cable operators do not have the capability to provide accurate AP locations suitable for public safety purposes. And even assuming that location information could be provided and validated, it could quickly become outdated. Inaccurate or outdated information presents serious risks to both 911 callers and cable broadband customers who may reside or do business at the location of a Wi-Fi AP mistakenly associated with a 911 caller.

The Public Notice also inquires whether call-backs from PSAPs to client devices would be feasible if the client device placed a 911 call via Wi-Fi.9 Call-backs from PSAPs to client devices that placed a voice over Wi-Fi call to 911 are not feasible unless a service provider that operates a Wi-Fi AP serves as the “last mile” connection for the end user device dialing 911 and the MNO core network routes the call. As such, a Wi-Fi AP itself cannot facilitate a call back from a PSAP to a caller’s client device without a functional underlying mobile network.

Moreover, even where the Wi-Fi AP serves as the “last mile” connection as described above, the AP would need to continue to allow the device access to the Wi-Fi network for some period of time to facilitate a call back from the PSAP, which presents significant logistical, privacy and cybersecurity concerns. For example, given the limited range of Wi-Fi APs, anyone attempting to make a 911 call over a Wi-Fi AP would be susceptible to her call being disrupted

9 Public Notice at 2.

or dropped if she moves out of range, with the practical result that a call-back would be virtually

impossible unless the caller stays in exactly the same location.

D. Other Challenges Also Would Impede 911 Calling Over Wi-Fi

Different companies and devices use inconsistent protocols, including non-interoperable

codecs, for voice calls. Navigating those differences to successfully route calls takes significant

advance coordination and testing, even in non-emergency situations. For call hand-off to work

on all Wi-Fi APs in emergency situations would require even more complex coordination. All

providers likely would need to agree to support every transmission and compression protocol, or

all providers would need to agree on one standard.10 This presents significant risks of failure at

the outset, given that the voice marketplace supports numerous different protocols, and providers

must enter agreements to ensure call compatibility across networks. Wi-Fi does not

independently support voice services and the Wi-Fi ecosystem is fragmented between service

providers, device manufacturers, and third-party applications. Therefore, existing agreements do not contemplate Wi-Fi, creating the possibility that certain voice protocols may be incompatible with an available Wi-Fi network or device, which could prevent a 911 call from being transmitted. Taking any action to require the use of Wi-Fi APs for 911 services could be a step backwards from the well-vetted and reliable process today, in which a Wi-Fi call to 911 routes over a CMRS network to the local PSAP with the necessary 911 location information.

10 This also presents competitive concerns, as each time an OEM or service provider develops a new technology it would potentially have to share that technology with all providers.

III. WI-FI OPERATIONS ARE NOT BETTER SITUATED THAN MOBILE NETWORKS TO STAY CONNECTED DURING EMERGENCIES

Although NCTA members often make Wi-Fi APs accessible to the public during emergencies to enable access to the Internet, Wi-Fi networks are likely to be unavailable if

CMRS radio networks are unavailable in a particular location, because both depend on the same two core infrastructures: electrical power and backhaul telecommunications facilities. If power or backhaul are unavailable to CMRS radio networks, they are likely also unavailable to Wi-Fi networks, making it impossible for a user to access the Internet. And while an individual Wi-Fi

AP may be able to operate on a generator and without access to backhaul, it would only be able

to provide local connections to its client devices. It would not be able to connect those devices

to distant locations, such as an MNO network, the Internet backbone, or a PSAP.

Wi-Fi networks rely on the service provider’s broadband plant and associated customer

premises equipment (CPE), such as Wi-Fi gateways and cable modems. Both a cable operator’s

fixed line service (including the network components between a customer’s CPE and the cable

operator’s headend) and CPE itself require connection to power in order to operate. As the

Public Notice correctly notes, “[d]uring a weather emergency like a hurricane, which can cause

wireless network unavailability, both power outages and downed utility pole lines carrying

backhaul can also make Wi-Fi access points unavailable.”11 The emergencies that disrupt

CMRS radio networks and MNO core networks as a result of power outages and infrastructure

damage are, therefore, likely also to prevent Wi-Fi APs from connecting customers to the

Internet. Service providers can only open Wi-Fi APs to the public for connection to the Internet

where their network is up and running, even if individual local APs are still functioning. Where

11 Public Notice at 2-3.

the cable plant is damaged or has lost power—rendering backhaul to Wi-Fi APs unavailable—or where a power outage in a home or business affects the Wi-Fi AP or other CPE, Wi-Fi services

(including Wi-Fi calling) will be unavailable.12

Unlike managed service provider networks, which maintain power back-up at network

facilities, the vast majority of residential customers do not have any such back-up power to

enable operation of CPE like a Wi-Fi AP. Indeed, continuous access to Wi-Fi services during a

power outage would require each customer to have a whole-house generator, uninterruptible

power supply, or other backup power source. The cable industry’s experience in the provision of

interconnected VoIP services also suggests that, even where providers are required by FCC rule

to provide an option for customers to purchase equipment with back-up batteries, only a very

small—and decreasing—number of voice customers are interested in obtaining those back-up

batteries.13 Moreover, even if customers did opt to acquire backup batteries for their in-home

Wi-Fi APs, the backup power would not benefit the user if the backhaul to the AP also failed due to physical damage. Thus, there are relatively few scenarios in which an individual seeking to dial 911 in a disaster or other similar emergency situation would be unable to reach a PSAP

12 Although strand- and plant-powered Wi-Fi APs may have access to backup power, these deployments represent a small percentage of cable operator Wi-Fi deployments. 13 See, e.g., Opening Comments of Charter Communications Inc. on the Assigned Commissioner’s Proposal: Public Version, Public Utilities Commission of the State of California, Rulemaking No. 18-03-011, at 8 (filed Apr. 3, 2020) (noting that “the number of customers who purchase backup batteries from Charter to operate VoIP devices is extremely modest, and very few customers have expressed an interest in this option”); Comments of Comcast Phone of California, LLC (U-5698-C) On Assigned Commission and Administrative Law Judge’s Ruling Requesting Comment on Wireline Provider Resiliency Strategies: Public Version, Public Utilities Commission of the State of California, Rulemaking No. 18-03-011, at 42 (filed Aug. 12, 2020).

using her CMRS provider’s network, but able to make the connection because of a nearby Wi-Fi

AP.

IV. STATUTORY LIABILITY PROTECTIONS FOR WIRELESS AND IVOIP SERVICE PROVIDERS’ 911 ACTIVITIES MAY LEAVE WI-FI NETWORK OPERATORS EXPOSED

Federal statutes provide liability protection for CMRS carriers, iVoIP providers, their vendors and agents, PSAPs, and other emergency communications providers for their role in transmitting and receiving emergency communications that is not less than the immunity provided to local exchange companies (LECs) under state law. However, these statutes would need to clearly extend liability protections to operators of Wi-Fi APs specifically used for 911 calling or text-to-911 (even if a Wi-Fi provider is covered with respect to its CMRS or iVoIP service), particularly where such APs would provide emergency communications services to the public and not just to the subscribers of the Wi-Fi network operator.

For example, Section 615a(a) of Title 47 provides liability protection to wireless and

VoIP providers for their activities in providing emergency communications services and releasing subscriber information associated with such services. Specifically, Section 615a(a) of the Wireless Communications and Public Safety Act (1999) (Wireless 911 Act), as modified by the New and Emerging Technologies (NET) 911 Improvement Act (2008) (Net 911 Act) reads as follows:

A wireless carrier, IP-enabled voice service provider, or other emergency communications provider, and their officers, directors, employees, vendors, and agents, shall have immunity or other protection from liability in a State of a scope and extent that is not less than the scope and extent of immunity or other protection from liability that any local exchange company, and its officers, directors, employees, vendors, or agents, have under Federal and State law (whether through statute, judicial decision, tariffs filed by such local exchange company, or otherwise) applicable in such State, including in connection with an act or omission involving the release to a PSAP, emergency medical service provider or emergency dispatch provider, public safety, fire service or law enforcement official, or hospital

emergency or trauma care facility of subscriber information related to emergency calls, emergency services, or other emergency communications services.14

Notably, Section 615a(a) includes the release of subscriber information to a PSAP as part of the provision of emergency services. As described in detail above, if a Wi-Fi service provider opens its Wi-Fi APs to the public during an emergency today, it is providing Internet connectivity. Its

Wi-Fi services can provide an on-ramp to a MNO’s core network, which can route and terminate a 911 call, but the Wi-Fi AP itself cannot distinguish emergency calls or texts from any other

Wi-Fi traffic or ensure that voice calls placed over Wi-Fi to 911 are terminated at the PSAP without a CMRS network. As a result, Congress would need to make clear that a Wi-Fi network operator is providing an “emergency communications service” and “releas[ing] . . . information” to a PSAP or otherwise provide equivalent protection before encouraging or requiring access to

Wi-Fi APs for 911 services without a functional underlying CMRS network.

Wi-Fi service providers also do not provide “subscriber” information to PSAPs to the extent they are able to provide any information at all about a non-subscriber member of the general public who accesses an open Wi-Fi AP to place a 911 call over Wi-Fi. Consequently, providing Wi-Fi AP access for the purpose of enabling 911 communications may not fit within the protections offered by Section 615a(a), potentially opening Wi-Fi network operators up to significant risk if they specifically took measures to support emergency services.

14 47 U.S.C. § 615a(a). The Next Generation 9-1-1 Advancement Act of 2012 (NextGen 911 Act) also sets forth certain liability protections for providers or users of “Next Generation 9- 1-1 services,” but these protections extend only to providers of future services using a new, IP-enabled emergency network. Because such a system has not yet been developed, the NextGen 911 Act also may not provide adequate liability protection today for Wi-Fi AP operators to provide 911 services over open access Wi-Fi APs. See 47 U.S.C. § 1472.

Moreover, the federal Net 911 Act’s protections are limited because those protections

depend on the protections afforded to LECs under individual state laws. State laws, in turn, can

impose meaningful limitations on this immunity. At least some states do not grant carriers full

liability protection, including in situations where a carrier’s action is not related to its customer

placing a 911 call.15 For example, one court has interpreted Nevada’s liability statute to grant carriers immunity from liability only in relation to a person who actually used their 911 service, not for the provision of information used for another purpose, even if the plaintiff is a “potential user” of a carrier’s 911 service.16 In other words, if the person accessing the Wi-Fi AP to place a

911 call over Wi-Fi is not a subscriber of the Wi-Fi network operator, or the information

provided is determined not to be for the purpose of an emergency service (for instance, if the

Wi-Fi AP is determined merely to facilitate Internet access), a state’s emergency

communications liability laws may not protect Wi-Fi network operators from liability.

These significant gaps in liability protection likely would require changes at both the

federal level and in each state. Absent such changes to provide significantly broader protections

to expressly cover Wi-Fi service providers, Wi-Fi AP and network operators could be disproportionately exposed compared to other providers of 911 emergency services.

15 See, e.g., Peter P. Ten Eyck, Dial 911 and Report A Congressional Empty Promise: The Wireless Communications and Public Safety Act of 1999, 54 Fed. Comm. L.J. 53, 71, 73 (2001) (observing that “[c]onduct that could subject a wireless provider to liability in one state is perfectly acceptable in another” and criticizing the Wireless 911 Act for “fail[ing] to address [these] inconsistencies in state 911 liability law”). 16 See generally Dobson v. Sprint Nextel Corp., No. 2:13-CV-00816-GMN-GWF, 2014 WL 553314 (D. Nev. Feb. 10, 2014) (unpublished) (holding that “the plain meaning of the language in the Nevada statute is that wireless service providers are only immune from liability to those who actually used their 9-1-1 service”).

V. PRIVACY AND SECURITY CONCERNS ALSO PRESENT A BARRIER TO ENABLING WIDESPREAD 911 SERVICES OVER WI-FI APS IN EMERGENCIES

Enabling widespread public access to 911 services over Wi-Fi in emergencies absent a

functional CMRS network presents significant privacy and security concerns. To the extent that

standards could be developed to facilitate the delivery of location information associated with a

Wi-Fi AP to a PSAP in order to enable emergency services to locate a 911 caller, providing such

location information would implicate the privacy interests not just of the 911 caller accessing the

open Wi-Fi AP, but also the cable broadband customer in whose home or business the AP

resides.

In particular, both Section 631 of the Communications Act17 and the Federal Trade

Commission’s privacy regime could limit a cable Wi-Fi network operator’s ability to provide

personal identifying information (PII), such as an address or device identifying information

associated with a Wi-Fi AP or client device, to a PSAP. Although both regimes recognize

exceptions related to the provision of emergency services,18 changes may be required when

applying these laws in a new context where providing the PII affects not just the 911 caller

seeking emergency services over an open AP (and with whom the cable operator may have no

prior relationship), but also the individual in whose home or business a Wi-Fi AP resides.

Automatically authenticating unknown end-user devices to Wi-Fi APs also presents cybersecurity concerns, as the Public Notice recognizes.19 Simply deactivating the normal

17 47 U.S.C. § 551. 18 47 U.S.C. § 551(c)(2)(D); 18 U.S.C. § 2702(b)(8) and (c)(4); Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change 39 (2012), https://www.ftc.gov/sites/default/files/documents/reports/federal-trade-commission-report- protecting-consumer-privacy-era-rapid-change-recommendations/120326privacyreport.pdf. 19 Public Notice at 3.

authentication processes in order to facilitate open access to Wi-Fi APs to all comers would undermine network security. As a result, new automatic authentication protocols would need to be developed with adequate security built in at the outset and be widely adopted and implemented across the Wi-Fi and end-user device ecosystem. Because without adequate security in place, bad actors could gain access to the network and cause disruption, compromising services to other users, including a provider’s customers.

CONCLUSION

Where Wi-Fi APs remain connected to power and backhaul, they can provide important

Internet connectivity to areas affected by severe weather events, natural disasters, or other emergencies. However, for the reasons identified above, Wi-Fi APs are not technically or operationally capable of routing 911 calls or texts to PSAPs directly without an underlying MNO network to administer the call, or capable of prioritizing emergency call or data traffic. Wi-Fi- enabled end-user devices are also unable to spontaneously authenticate and connect to an unknown Wi-Fi network. The Commission should therefore conclude in its report to Congress that the delivery of 911 communications services to the public over Wi-Fi APs when mobile networks are unavailable is unworkable.

Respectfully submitted,

/s/ Rick Chessen ______

Rick Chessen Neal Goldberg Danielle J. Piñeres NCTA – The Internet & Television Association 25 Massachusetts Avenue, NW – Suite 100 Washington, DC 20001-1431 (202) 222-2445 October 1, 2020