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Commission Document Attachment

FCC-13-64A5

Federal Communications Commission

FCC 13-64

CONCURRING STATEMENT OF

COMMISSIONER PAI

RE: Facilitating the Deployment of Text-to-911 and Other Next Generation 911 Applications, PS Docket
No. 11-153; Framework for Next Generation 911 Deployment, PS Docket No. 10-255.
People in need of emergency assistance should not be left with the false impression that first responders
are on the way, when in fact they are not. That is why I support the automatic “bounce-back” text
message requirement set forth in this Report and Order. If Americans send an emergency text to 911 in a
location where text-to-911 capability is not yet available, they should be notified immediately that they
must contact public safety personnel in another way, such as by calling 911. This “bounce-back”
requirement that we adopt today is of particular importance to deaf and hard-of-hearing Americans, who
disproportionately rely on texting as a means of communication.
I also believe that the Commission possesses the legal authority to issue these rules. But I cannot support
the lengthy legal analysis contained in this item, which offers a grab bag of theories, some far-reaching
and questionable. For example, the Commission today claims sweeping authority to prescribe “rules that
prevent the transmission of potentially misleading text messages.”1 This remarkable assertion of power
raises serious First Amendment questions and should give pause to anyone who has ever sent a
“potentially misleading” text message. Similarly, the reliance on a statutory provision that empowers the
Commission to implement policy recommendations made by non-governmental actors2 evokes
constitutional doubts dating back to the Great Depression.3 Law and prudence suggest we go no further
than necessary in justifying otherwise worthwhile policy choices.

1 Report and Order, para. 129.
2 Id., para. 97 (citing 47 U.S.C. § 615c(g) (“The Commission shall have the authority to promulgate regulations to
implement the recommendations proposed by the [Emergency Access] Advisory Committee[.]”)).
3 See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935) (striking down as an
unconstitutional delegation of authority provision of National Industrial Recovery Act giving President power to
approve “codes of fair competition” as recommended by trade or industrial associations or groups); Carter v. Carter
Coal Co.
, 298 U.S. 238, 310–11 (1936) (holding unconstitutional statutory provision granting private entities the
authority to set certain labor conditions).

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