ASSOCIATION OF CHIEF POLICE OFFICERS OF ENGLAND, WALES AND NORTHERN IRELAND

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1 ASSOCIATION OF CHIEF POLICE OFFICERS OF ENGLAND, WALES AND NORTHERN IRELAND ACPO Information Management Business Area Communications Portfolio Overview 3rd May Redacted text is indicated with This response to the Ofcom consultation document "Regulation of VoIP Services Statement and Further Consultation" reflects the views of the ACPO Information Management Business Area - Communications Portfolio. A formal response has previously been submitted following the initial consultation in respect of VoIP New Voice Service A consultation and interim guidance in November Firstly it should be re-emphasised that ACPO welcomes any new technology that affords access to more effective and efficient telecommunications services; however the embracing of new technology is subject to the overarching requirement that such innovations result in an improvement of existing services not degradation. There are certain requirements and capabilities that ACPO still feels must be incorporated within the provision of such services as a basic minimum: 1. Access to emergency Services (Ie a 999/112 capability), and 2. An ability for those agencies with responsibility for law enforcement and/or national security to utilise the services in furtherance of their objectives. Effective and efficient telecommunications are critical to the operation of the police service both in terms of being able to provide an appropriate response to emergency situations through the 999 system, and moreover. Regulation must exist to protect consumers from such intrusions in the first instance, but also enable enforcement action to be subsequently taken. Only regulation of the new technology from the outset will ensure that such needs are initially incorporated within a minimum standard in a proactive manner, rather than attempting retrospective regulation reactively. The concerns expressed in the ACPO Communications Portfolio group, and other responses, to the 2004 consultation appear to have been somewhat diluted in favour of the desire to allow the market forces of supply and demand to determine which of the services currently incorporated within PSTN telephony (and mandated upon suppliers to provide) will be made available on VoIP systems. ACPO would strongly argue that the provision of access to the emergency services via 999 (or 112) should be a prerequisite of any publicly accessible telephony system, irrespective of its platform, and should not be an optional extra. 1

2 The 999 emergency number is enshrined within the culture and psyche of the UK population, and has fostered an underlying assumption based on fact that when our citizens dial 999 (or 112) for the emergency services they get an instant response. There are, on rare occasions, instances when the emergency call handling structure fails, with the consequence that the public and media demand an explanation for the failure and assurances that such failures will not be repeated. Ofcom intends to rely on the incentive of providing number portability as being sufficient to encourage suppliers to elect to include 999 access in their services. ACPO is not convinced that this will give any certainty whatsoever and will only serve to fragment the market and result in consumer confusion. It is likely that the more established and responsible providers will voluntarily provide emergency number access, but the more transient providers looking to cherry pick services for short term gain will not. The consequence of dealing with Ofcom s position in operational reality is therefore difficult to contemplate. How, for example, will the public know, when picking up a telephone, whether or not access to the 999 emergency services will be available? Ofcom s interim solution is for the VoIP customer to have a notice on the handset stating that access to 999 is not available. This evidently poses another concern as to who will be required to ensure the sticker is in place on the handset? What are the implications for the blind, those who have reading difficulties, or those whose first language is not English? The responses to Ofcom s initial 2004 consultation gave a very clear insight into the possible consumer reaction to 999 access not being available, in particular the focus group work commissioned by Ofcom 1 stated, In summary, possible exclusion of access to emergency calls was very controversial. This service was taken for granted by everyone and its possible exclusion was a surprise to some and unacceptable to many others. It followed that the vast majority would not consider purchasing a replacement primary telephone service without access to emergency calls and very few were content to rely on their mobiles 2 The focus group research report 3 explicitly states, The vast majority said they would not consider purchasing a telephone service that did not offer access to 999. The report further quotes a member of the focus group as an example in summing up the sentiments of the vast majority, It is [999 emergency access] something we ve learnt to take for granted I wouldn t want to give that up, you re asking for trouble. However, Ofcom s conclusion in responding to the strong opinions of the vast majority is not one of developing the argument for mandatory provision of emergency calls by suppliers offering VoIP services, but the development of informed consumer choice Paragraph 6.12 "New Voice Services - A Consultation and Interim Guidance" 3 Paragraph

3 Ofcom considers that the focus group evidence and responses to the consultation [2004] support Ofcom s view that consumer information is appropriate We strongly believe that choice needs to be underpinned by an understanding of what services are on offer particularly in relation to the availability and reliability of access to emergency calls It seems a particularly flawed argument that access to police, fire, ambulance/paramedic and coast guard services via 999 is actually a consumer choice and best left to the market place to decide the outcomes. Whilst ACPO would in no way advocate blindly following the lead of our American colleagues, it is worthy of note that following a number of highly publicised incidents in the US, the national regulatory authority, the Federal Communications Commission (FCC), intervened so as to remove the regulation of VoIP from local State control, and furthermore has mandated the provision of 911 emergency access on VoIP system providers. Ofcom acknowledges 4 that such investigations are of primary concern to the Home Office and other agencies. However, Ofcom should recognise that such concerns simply reflect the public demand for such matters to be investigated and for the offenders to be brought to justice. The main concerns from the perspective of ACPO Communications Portfolio are articulated herein, but the ramifications of the current Ofcom stance extend far beyond the impact upon emergency service provision or crime prevention and investigation. The routing of calls into the appropriate partnership within the Single Non Emergency Number (SNEN) concept, for example, requires the provision of location information relating to the caller. Under the European Universal Service Directive providers of services giving access to 999/112 are obliged to provide caller location information (where technically feasible). However in the absence of an emergency calls capability being mandated, suppliers may be unwilling to voluntarily suffer the additional costs of providing this information and so a fundamental prerequisite for the effective routing of SNEN calls may be absent within VoIP systems. There are numerous other issues to be considered within this debate that would again point towards the need for Ofcom to adopt a more robust stance in respect of the regulation of VoIP services. There are also issues of equality of opportunity. As highlighted above any notices affixed to VoIP handsets would discriminate against the visually impaired, non- English speakers, and those with reading difficulties. Callers from Wales could not be identified as such, and so certain mandatory requirements of the Welsh Assembly in respect of the use of the Welsh language, 4 Paragraph 9.19 "New Voice Services - A Consultation and Interim Guidance" 3

4 might not be able to be delivered comprehensively over VoIP systems under the currently proposed regulatory approach. Responses to Specific Consultation Questions Qu.1. (i) (ii) (iii) Agree Agree Disagree provision of 999 services should be mandatory. Qu. 2. Whilst the approach seeks to draw a line of demarcation between the PATS provider and the network provider through the use of Service level Agreements, it is questionable as to whether this adequately defines levels of responsibility and more importantly accountability to the level that could ultimately be challenged in a court of law in the worst case scenario. The relationship between PATS supplier and the network provider that acts as carrier for the service needs to be better defined and locked down. Qu.3. If GC 3 is not realistically enforceable on the providers of VoIP systems then an amended GC should be developed that results in equivalence between fixed and nomadic services. Presumably there are precedents already in place to deal with the distinction between landline and gsm mobile CSPs? Qu. 4. See Overview comments above. The needs of the emergency services, law enforcement agencies and national security agencies are not fully met by the current approach Ofcom is proposing to the regulation of VoIP services. Qu. 5 Yes again please see Overview above: Furthermore Ofcom should consider the issue of the potential take up of the technology. At present it is assumed that VoIP systems will be used as secondary devices and so a traditional system offering full functionality will also be available. To an extent this is being used as one of the justifications for the recommended soft approach to regulation of the new technology. The analogy followed with the take up of mobile telephony and continued presence of a landline system as the primary device may not be applicable to the VoIP debate. To an extent landline and mobile phones cater for the needs of different aspects of the market, and so consumers are willing to pay for the overlap of functionality, as the duplication is not too great. The VoIP technology however directly competes with the functionality of landline systems, and to an extent for the nomadic systems with that of mobile telephony. Consumers do not like paying for the same service twice and so may be more willing to drop the traditional systems than they were under the explosion of mobile telephony. The timescale for take up of VoIP systems as the primary telecommunications device may therefore be much shorter than Ofcom is anticipating, and as such Ofcom should be taking steps to ensure the presence of essential features (as previously described) by regulation at the earliest opportunity. Ofcom also needs to look at the cost implications for public services in providing the necessary infrastructure to be able to receive the new technology are there likely to be substantial costs involved, and if so how this should be funded? Qu. 6. The general assumption that the availability of number portability will provide a sufficient incentive to include 999 access in VoIP systems is considered fundamentally flawed in the first instance. However if the proposed modification to the PATS definition in GC 18 is likely to strengthen that incentive, then it is supported. 4

5 Qu.7. If Ofcom elects not to regulate in favour of provision of all current traditional services as a minimum requirement of VoIP systems, it is vital that all potential users are aware of its limitation. There is legislation in place to ensure that consumers of any goods or services are able to make their purchasing decisions on the basis of reliable information, and this should be reinforced where applicable through regulation by Ofcom in respect of VoIP systems. However it is also critically important that any subsequent users of such systems who were not involved in the purchasing decision are informed of its potential limitations. This must be done robustly- handset labels can easily, and in the interests of aesthetics will, be removed. Furthermore it is likely that, as in the mobile phone market, the handset manufacturer and service provider will be separate entities. It is the service provider that will determine what functionality will be provided, not the manufacturer of the handset. The establishment of a Code to ensure that consumers are able to make informed decisions will be vital if basic services such as 999 are not to be mandated. Qu. 8. Agreed Qu. 9. To point, but this may be discriminatory against minority groups see Overview above Qu.10.Agreed but again see Overview above. Qu.11. Access to emergency calls should not be left to consumer choice (either on signature or otherwise) As the consumer is not in a fully informed position to be able to make a choice about something they hope they will never need, but will inevitably miss when they do need it. Qu.12. Location information for the majority of fixed location services should not be an issue and can be covered by simple registration of the installation address. However Naked DSL or Nomadic systems, which are those that are more likely to be used for criminal or subversive purposes, will present a potential threat to the well being of citizens, under the current proposals. Qu.13. The provision of such information in the formats suggested will give no assurance that the consumer has actually taken account of the implications at the time of choosing to make the purchase. See 11 above. Qu.14 Consumers inevitably make their purchasing choices based on price, aesthetic appearance and functionality it is likely that a minimum level of functionality (including 999 access) will be expected. Consumers are unlikely to for the link between lack of number portability and lack off 999 provision. Qu 15 As per responses above and the over-riding assumption by consumers that if a product looks like a phone it will work like a phone, regardless of what the stickers on it say or indeed the small print in the contact excludes. Qu.16. Agreed - if a Code is going to be implemented then in order to avoid confusion all aspects of it should be mandatory. Qu.17. There does seem to be an implied and inherent suggestion from the overall programme that Ofcom recognises its current approach is inadequate and will require 5

6 constant review and revision Would it not be more prudent to get it right from the outset? Qu.18. Again the need for a programme of consumer education is as a result of the lack of robustness in the proposed regulatory approach. The suppliers of VoIP systems could be obliged to carry a tobacco style health warning re the limitations of products on all its publications not just on the product itself. Qu.19. Obviously and regulation requires an enforcement regime otherwise it is practically worthless. However more robust regulation at the front end whereby only responsible suppliers who intend to be in the market for the long term enter the market to the exclusion of the short term cherry pickers that will take the profits and run without paying much cognisance to diluted regulatory control of the sector. Qu.20.Ofcom is the regulatory authority to safeguard consumers interests as such it must take all available measures to fully understand market developments. Qu.21. Ofcom should mandate the provision of 999 access as has been done in the USA by the FCC Qu.22. Naked DSL provides a huge potential opportunity for there is also an impact in relation to both 999 service resolution and the Single Non Emergency number (See overview above). The issue cannot really be ignored as readily as perhaps Ofcom would wish. Qu.23. Not for ACPO to comment on. Qu. 24. Without caller line identification or location information the provision of location information is an incidental benefit that come with mandatory 999 access, and would solve this issue. Qu. 25. The issue of tele-sales auto-diallers resulting in distressing silent calls being made is being dealt with by Ofcom in respect of PSTN lines it would appear that there could be a similar or even amplified issue within the VoIP arena. Qu. 26. Not for ACPO to comment on. Qu. 27. Enforcement of the GCs on a non UK based supplier would appear to be a potential problem, and may even result in a migration of service providers away from the Uk in order that they can supply services within the UK without complying with the regulatory framework. Qu. 28. If the level of security is the same or better than that provided under an equivalent PSTN service then this should not be an issue. Qu 29. See Overview above. Qu 30. No comments Qu 31 Not for ACPO to comment on Qu 32. Not for ACPO to comment on Qu 33 Not for ACPO to comment on 6

7 Qu 34 Not for ACPO to comment on Qu 35 Not for ACPO to comment on how location information is provided, but it is vitally important that where technically feasible it is. Note the constraint is one of technology NOT cost. Qu 36 As (35) Above a verbal update of location will not be reliable people do not always know where they are,. Qu 37. Not for ACPO to comment on but merely to emphasis the importance of the provision of location information. Ends 7