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PSHSB Seeks Comment on TCS Petition

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Released: February 22, 2013


Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.


Washington, D.C. 20554

TTY: 1-888-835-5322

DA 13-273

Released: February 22, 2013




GN DOCKET 11-117, WC DOCKET 05-196, PS DOCKET 11-153, PS DOCKET 10-255

COMMENTS DUE: March 25, 2013

By this Public Notice, the Public Safety and Homeland Security Bureau (PSHSB) seeks comment
on a petition for declaratory ruling and/or rulemaking filed by TeleCommunication Systems, Inc. (TCS)
regarding intellectual property rights in technologies used to provide 911 communications services.1
TCS states that it provides Enhanced 911 (E911) and Next Generation 911 (NG911) services
including call routing and location information to customers such as wireless carriers and interconnected
VoIP service providers.2 It claims that it has become a target of “predatory patent infringement suits”
based on its role as a provider of E911 services and capabilities that are required under Commission
rules.3 These lawsuits, TCS asserts, “typically allege infringement based on the mere fact that the
defendant is in compliance with the Commission’s E911 regulations,”4 including E911 Phase II location
accuracy requirements.5 More broadly, TCS alleges that it and its customers have become the targets of
patent assertion entities (PAEs)6 that “use the Commission’s mandatory E911 regulations against
compliant carriers and their vendors in an attempt to extract licensing agreements,” leaving such
companies with a choice between violating Commission rules, defending costly patent infringement
lawsuits, and accepting unreasonable terms of licensing.7

1 Petition of Telecommunication Systems Inc. for Declaratory Ruling and/or Rulemaking, GN Docket No. 11-117,
WC Docket No. 05-196, PS Docket No. 11-153, PS Docket No. 10-255 (filed July 24, 2012) (TCS Petition).
2 Id. at 2.
3 Id. at 3.
4 Id.
5 See 47 C.F.R. § 20.18(h).
6 The term “patent assertion entity” refers to firms whose business model primarily focuses on purchasing and
asserting existing patents rather than developing new technologies. See Federal Trade Commission, The Evolving IP
Marketplace: Aligning Patent Notice and Remedies with Competition
(March 2011) available at (last accessed on Feb. 22, 2013).
7 TCS Petition at 12.

TCS requests that the Commission issue a declaratory ruling that service providers’ compliance
with E911 and NG911 regulations amounts to a use of intellectual property “by or for the United States”
within the meaning of 28 U.S.C. § 1498(a). Section 1498(a) applies when the use or manufacture of a
patented invention occurs “for the Government and with the authorization or consent of the
Government.”8 In such cases, the statute “relieves a third party from patent infringement liability, and it
acts as a waiver of sovereign immunity and consent to liability by the United States.”9 TCS seeks a
formal declaration by the Commission that any patent rights required to provide E911 and NG911
services are used “with the authorization and consent of the Government” in furtherance of a stated
Government policy, and therefore are subject to the limitations on recovery set forth in section 1498(a).
Alternatively, TCS asks the Commission to adopt rules requiring intellectual property rights for
mandatory 911 service capabilities to be licensed on reasonable and non-discriminatory (RAND) terms.10
Specifically, TCS proposes additions to 47 C.F.R. § 9.7(d) and 47 C.F.R. § 20.18(n) providing that:
All intellectual property rights required by entities subject to the
provisions of this Section in order to comply with the requirements
herein shall be licensed on reasonable terms and conditions that are
demonstrably free of any unfair discrimination so long as the rights are
used for the purpose of providing 911 or E911 services in accordance
with the Commission’s rules.11
TCS asserts that the Commission has ancillary authority under Title I of the Communications Act
to require RAND licensing as part of its statutory obligation to “promot[e] safety of life and property”12
through effective 911 service.13 It also asserts that the New and Emerging Technologies 911
Improvement Act of 200814 provides the Commission with broad authority to adopt regulations ensuring
that interconnected VoIP customers have access to E911 capabilities.15
By this Public Notice, we seek comment on TCS’s petition and announce the pleading cycle
during which comments and replies may be filed.
This proceeding will be treated as “permit but disclose” for purposes of the Commission’s ex
parte rules.16 As a result of the permit-but-disclose status of this proceeding, ex parte presentations will
be governed by the procedures set forth in Section 1.1206 of the Commission’s rules applicable to non-
restricted proceedings.17 Persons making ex parte presentations must file a copy of any written
presentation or a memorandum summarizing any oral presentation within two business days after the
presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral

8 28 U.S.C. § 1498(a).
9 Madey v. Duke University, 307 F.3d 1351, 1359 (Fed. Cir. 2002).
10 TCS Petition at 23-24.
11 Id., Annex A.
12 See 47 U.S.C. § 151.
13 See TCS Petition at 21-22.
14 New and Emerging Technologies 911 Improvement Act of 2008, Pub. L. No. 110-823, 122 Stat. 2620.
15 See TCS Petition at 22.
16 See generally 47 C.F.R. §§ 1.1200-1.1216.
17 47 C.F.R. § 1.1206.

ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all
persons attending or otherwise participating in the meeting at which the ex parte presentation was made,
and (2) summarize all data presented and arguments made during the presentation. If the presentation
consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s
written comments, memoranda or other filings in the proceeding, the presenter may provide citations to
such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant
page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them
in the memorandum. Documents shown or given to Commission staff during ex parte meetings are
deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). Written ex
presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available for that proceeding, and must be
filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should
familiarize themselves with the Commission’s ex parte rules.
Parties may file comments on the Petition on or before

March 25, 2013

, and may file reply
comments on or before

April 8, 2013

. Please place the docket numbers,

GN DOCKET 11-117, WC
DOCKET 05-196, PS DOCKET 11-153

, and

PS DOCKET 10-255

, on all filings. Comments may be
filed using the Commission’s Electronic Comment Filing System (ECFS).18
Electronic Filers: Comments may be filed electronically using the Internet by accessing the
Paper Filers: Parties who choose to file by paper must file an original and one copy of each
filing. If more than one docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s
Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary
must be delivered to FCC Headquarters at 445 12th Street SW, Room TW-A325,
Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes and boxes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th
Street SW, Washington, DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities
(braille, large print, electronic files, audio format), send an e-mail to or call the
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (tty).
Copies of the Petition and any subsequently filed documents in this matter are also available for
inspection in the Commission’s Reference Information Center:
445 12th Street SW, CY-Level
Washington, DC 20554
(202) 418-0270

18 See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

For further information, contact: Eric Schmidt, Policy and Licensing Division, Public Safety and
Homeland Security Bureau, at (202) 418-1214 or
Action by the Chief, Public Safety and Homeland Security Bureau.
– FCC –

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