New Communications Technologies Spawn Legal Issues

Communications technology changes almost daily. Often, both statutory and case law lag behind the new technology. In this dynamic environment, there is necessarily unpredictability that makes us all uncomfortable. As lawyers it is our role to bring some predictability that the business world demands. Here are several questions growing out of our reliance on this rapidly evolving technology.

As an employer, may I monitor use of company computers by my employees?

Congress enacted the Electronic Communications Privacy Act in 2003 when employee use of e-mail was not as wide spread. The ECPA is potentially broad enough to encompass electronic communication by computer. The ECPA’s precise scope and effect remain undetermined; however, employer monitoring is not expressly exempted. An employer wishing to retain the authority to monitor employee e-mail should use exceptions such as consensual monitoring, monitoring by the service provider, and monitoring done in the ordinary course of business. To do so, an employer should adopt computer use policies defining computer system ownership (both hardware and software), employee usage as permissive only and not by right, and employee usage as constituting agreement to monitoring, so that there is no expectation of privacy. As with all personnel policies, employers should retain documentary evidence that each employee has received and acknowledged the policy.

I make extensive use of my cell phone in my business but there is a gap in the coverage area of my wireless company. What is the likelihood that my locality would allow a new cell tower to fill the gap?

In 1996, Congress enacted the Telecommunications Act (TCA). The TCA attempts to balance two competing interests: the need to accelerate the deployment of telecommunications technology and the desire to preserve state and local control over zoning matters. Applying the TCA, our own Fourth Circuit has been very protective of local zoning powers. Of course, in exercising the zoning power, local governments must adhere to traditional state zoning law principles. Localities, therefore, do not have a blank check to act arbitrarily and unreasonably in denying applications for new wireless facilities. Also, over the last several years, most local governments have come to realize that businesses rely heavily on wireless communications (lack of coverage can be an economic development deterrent) and that citizens demand coverage for reasons of safety and convenience. Accordingly, some local ordinances have adopted a more moderate approach, allowing new towers of reasonable height when antennas cannot be collocated on existing facilities. Therefore, if your carrier can find a location that is not incompatible with the surrounding neighborhood, there is a reasonable likelihood that a new tower would be permitted to address a significant gap in coverage.

I use a web phone. Will I have the security of 911 protection with my web phone?

On May 19, the Federal Communications Commission (FCC) issued an order on so called “web phones” or Voice Over Internet Protocol (VOIP) which will set strict new 911 requirements for most Internet phone providers. The order applies to interconnected VOIP service providers that are similar to traditional telephone providers in that they allow customers to receive calls from and terminate calls to the public switched telephone network. Interconnected VOIP providers must deliver all 911 calls to the customer’s local emergency operator as a standard, rather than an optional service feature. Interconnected VOIP providers must also provide emergency operators with the callback number and location information of their customers (E911) where the emergency operator is capable of receiving it. Although the customer must provide the location information, the VOIP provider must provide the customer a means of updating this information, whether he or she is at home or away from home. Service providers must comply with the new regulations no later than 120 days after the effective date. Legislation similar to the FCC requirements has been introduced in both the U. S. Senate and House.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.