911 Fee Diversion; New and Emerging Technologies 911 Improvement Act of 2008
| Published date | 17 August 2021 |
| Citation | 86 FR 45892 |
| Record Number | 2021-16068 |
| Section | Rules and Regulations |
| Court | Federal Communications Commission |
Federal Register, Volume 86 Issue 156 (Tuesday, August 17, 2021)
[Federal Register Volume 86, Number 156 (Tuesday, August 17, 2021)]
[Rules and Regulations]
[Pages 45892-45909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16068]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 9
[PS Docket Nos. 20-291 and 09-14; FCC 21-80; FR ID 40050]
911 Fee Diversion; New and Emerging Technologies 911 Improvement
Act of 2008
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission (the
FCC or Commission) adopts rules to implement the Don't Break Up the T-
Band Act of 2020, which is section 902 of the Consolidated
Appropriations Act, 2021, Division FF, Title IX (section 902). Section
902 directs the Commission to issue final rules, not later than 180
days after the date of enactment of section 902, designating the uses
of 911 fees by states and taxing jurisdictions that constitute 911 fee
diversion for purposes of certain sections of the United States Code,
as amended by section 902. This Report and Order adopts rules that
implement the provisions of section 902 requiring Commission action and
that help to identify those uses of 911 fees by states and other
jurisdictions that support the provision of 911 services.
DATES:
Effective date: This final rule is effective October 18, 2021.
Compliance date: Compliance will not be required for 47 CFR 9.25(b)
until the Commission publishes a document in the Federal Register
announcing that compliance date.
FOR FURTHER INFORMATION CONTACT: For additional information, contact
Brenda Boykin, Attorney Advisor, Policy and Licensing Division, Public
Safety and Homeland Security Bureau, (202) 418-2062 or via email at
[email protected]; or Jill Coogan, Attorney Advisor, Policy and
Licensing Division, Public Safety and Homeland Security Bureau, (202)
418-1499 or via email at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, FCC 21-80, adopted on June 24, 2021 and released on June 25,
2021, and the Erratum released on August 12, 2021. The complete text of
this document is available for download at https://docs.fcc.gov/public/attachments/FCC-21-80A1.pdf. To request this document in accessible
formats for people with disabilities (e.g., Braille, large print,
electronic files, audio format, etc.) or to request reasonable
accommodations (e.g., accessible format documents, sign language
interpreters, CART, etc.), send an email to [email protected] or call the
FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
Paperwork Reduction Act
The requirements in 47 CFR 9.25(b) constitute a modification of the
information collection with Office of Management and Budget (OMB)
Control No. 3060-1122. This modified information collection is subject
to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. The
modified information collection will be submitted to OMB for review
under 47 U.S.C. 3507(d), and compliance with 47 CFR 9.25(b) will not be
required until after approval by OMB.
Congressional Review Act
The Commission has determined, and the Administrator of the Office
of Information and Regulatory Affairs, Office of Management and Budget,
concurs, that this is a major rule under the Congressional Review Act,
5 U.S.C. 804(2). The Commission will send a copy of this Report and
Order to Congress and the Government Accountability Office pursuant to
5 U.S.C. 801(a)(1)(A).
Synopsis
I. Background
Congress has had a longstanding concern about the practice by some
states and local jurisdictions of diverting 911 fees for non-911
purposes. Congress initially enacted measures to limit 911 fee
diversion, codified in 47 U.S.C. 615a-1 (section 615a-1).\1\
Specifically, section 615a-1(f)(1) provided that nothing in the New and
Emerging Technologies (NET) 911 Act, the Communications Act of 1934, or
any Commission regulation or order shall prevent the imposition and
collection of a fee or charge applicable to commercial mobile services
or IP-enabled voice services specifically designated by a State,
political subdivision thereof, Indian tribe, or village or regional
corporation for the support or implementation of 9-1-1 or enhanced 9-1-
1 services, provided that the fee or charge is obligated or expended
only in support of 9-1-1 and enhanced 9-1-1 services, or enhancements
of such services, as specified in the provision of State or local law
adopting the fee or charge. The NET 911 Act also required the
Commission to report annually on the collection and distribution of
fees in each state for the support or implementation of 911 or E911
services, including findings on the amount of revenues obligated or
expended by each state ``for any purpose other than the purpose for
which any such fees or charges are specified.'' \2\ Pursuant to this
provision, the Commission has reported annually to Congress on 911 fee
diversion every year since 2009. In October 2020, the Commission
released a Notice of Inquiry seeking comment on the effects of fee
diversion and the most effective ways to dissuade states and
jurisdictions from continuing or instituting the diversion of 911/E911
[[Page 45893]]
fees.\3\ Shortly thereafter, Congress enacted section 902.\4\
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\1\ New and Emerging Technologies 911 Improvement Act of 2008,
Public Law 110-283, 122 Stat. 2620 (NET 911 Act). The NET 911 Act
enacted 47 U.S.C. 615a-1 and also amended 47 U.S.C. 222, 615a, 615b,
and 942. See 47 U.S.C. 615a-1 Editorial Notes.
\2\ These annual reports can be viewed at viewed at https://www.fcc.gov/general/911-fee-reports.
\3\ 911 Fee Diversion; New and Emerging Technologies 911
Improvement Act of 2008, PS Docket Nos. 20-291 and 09-14, Notice of
Inquiry, 35 FCC Rcd 11010, 11010, para. 1 (2020). The Commission
received eight comments and seven reply comments in response to the
Notice of Inquiry. These filings can be viewed in the FCC's
electronic comment filing system (ECFS) at https://www.fcc.gov/ecfs/
, under PS Docket Nos. 20-291 and 09-14.
\4\ Consolidated Appropriations Act, 2021, Public Law 116-260,
Division FF, Title IX, Section 902, Don't Break Up the T-Band Act of
2020 (section 902).
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Section 902 requires the Commission to take additional action with
respect to 911 fee diversion. Specifically, section 902(c)(1)(C) adds a
new paragraph (3)(A) to 47 U.S.C. 615a-1(f) that directs the Commission
to adopt rules ``designating purposes and functions for which the
obligation or expenditure of 9-1-1 fees or charges, by any State or
taxing jurisdiction authorized to impose such a fee or charge, is
acceptable'' for purposes of section 902 and the Commission's rules.
The newly added 47 U.S.C. 615a-1(f)(3)(B) states that these purposes
and functions shall be limited to ``the support and implementation of
9-1-1 services'' provided by or in the state or taxing jurisdiction
imposing the fee or charge, and ``operational expenses of public safety
answering points'' within such state or taxing jurisdiction. The new
section also states that, in designating such purposes and functions,
the Commission shall consider the purposes and functions that states
and taxing jurisdictions specify as the intended purposes and functions
for their 911 fees or charges, and ``determine whether such purposes
and functions directly support providing 9-1-1 services.''
Section 902 also amends 47 U.S.C. 615a-1(f)(1) to provide that the
rules adopted by the Commission for these purposes will apply to states
and taxing jurisdictions that impose 911 fees or charges. Whereas the
prior version of section 615a-1(f)(1) referred to fees or charges
``obligated or expended only in support of 9-1-1 and enhanced 9-1-1
services, or enhancements of such services, as specified in the
provision of State or local law adopting the fee or charge,'' the
amended version refers to the obligation or expenditure of fees or
charges ``consistent with the purposes and functions designated in the
final rules issued under paragraph (3) as purposes and functions for
which the obligation or expenditure of such a fee or charge is
acceptable.'' (Emphasis added.)
In addition, section 902(c) establishes a process for states and
taxing jurisdictions to seek a determination that a proposed use of 911
fees should be treated as acceptable even if it is for a purpose or
function that has not been designated as such in the Commission's
rules. Specifically, newly added 47 U.S.C. 615a-1(f)(5) provides that a
state or taxing jurisdiction may petition the Commission for a
determination that an obligation or expenditure of a 911 fee or charge
``for a purpose or function other than a purpose or function designated
under [section 615a-1(f)(3)(A)] should be treated as such a purpose or
function,'' i.e., as acceptable for purposes of this provision and the
Commission's rules. The new section 615a-1(f)(5) provides that the
Commission shall grant the petition if the state or taxing jurisdiction
provides sufficient documentation that the purpose or function ``(i)
supports public safety answering point functions or operations,'' or
``(ii) has a direct impact on the ability of a public safety answering
point to--(I) receive or respond to 9-1-1 calls; or (II) dispatch
emergency responders.''
Section 902(d) requires the Commission to create the ``Ending 9-1-1
Fee Diversion Now Strike Force'' (911 Strike Force), which is tasked
with studying ``how the Federal Government can most expeditiously end
diversion'' by states and taxing jurisdictions and reporting to
Congress on its findings within 270 days of the statute's enactment.\5\
In February, the agency announced the formation of the 911 Strike Force
and solicited nominations. On May 21, 2021, the agency announced the
911 Strike Force membership, which includes a diverse array of experts
from across the nation representing Federal, state, and local
government agencies, state 911 administrators, a consumer group, and
organizations representing 911 professionals. The 911 Strike Force held
its inaugural meeting on June 3, 2021, and has formed three working
groups that will examine: (i) The effectiveness of any Federal laws,
including regulations, policies, and practices, or budgetary or
jurisdictional constraints regarding how the Federal Government can
most expeditiously end 911 fee diversion; (ii) whether criminal
penalties would further prevent 911 fee diversion; and (iii) the
impacts of 911 fee diversion. Consistent with section 902(d), the 911
Strike Force will complete its work and submit its final report to
Congress by September 23, 2021. In addition, Section 902(d)(1) provides
that if the Commission obtains evidence that ``suggests the diversion
by a State or taxing jurisdiction of 9 1 1 fees or charges,'' the
Commission shall submit such information to the 911 Strike Force,
``including any information regarding the impact of any underfunding of
9-1-1 services in the State or taxing jurisdiction.''
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\5\ 47 U.S.C. 615a-1 Statutory Notes (as amended); sec.
902(d)(3).
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Section 902(d)(2) provides that the Commission shall also include
evidence it obtains of diversion and underfunding in future annual fee
reports, beginning with the first report ``that is required to be
submitted after the date that is 1 year after the date of the enactment
of this Act.'' \6\ In addition, section 902(c)(1)(C) provides that if a
state or taxing jurisdiction receives a grant under section 158 of the
National Telecommunications and Information Administration Organization
Act (47 U.S.C. 942) after the date of the enactment of the new
legislation, ``such State or taxing jurisdiction shall, as a condition
of receiving such grant, provide the information requested by the
Commission to prepare the [annual report to Congress on 911 fees].''
Finally, section 902(d)(4) prohibits any state or taxing jurisdiction
identified as a fee diverter in the Commission's annual report from
participating or sending a representative to serve on any committee,
panel, or council established to advise the First Responder Network
Authority (FirstNet) under 47 U.S.C. 1425(a) or any advisory committee
established by the Commission.
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\6\ 47 U.S.C. 615a-1 Statutory Notes (as amended); section
902(d)(3). September 23, 2021 is 270 days after the enactment date
of section 902.
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Section 902 does not require states or taxing jurisdictions to
impose any fee in connection with the provision of 911 service. As
revised, the proviso to section 615a-1 states that nothing in the Act
or the Commission's rules ``shall prevent the imposition and collection
of a fee or charge applicable to commercial mobile services or IP-
enabled voice services'' specifically designated by the taxing
jurisdiction ``for the support or implementation of 9-1-1 or enhanced
9-1-1 services, provided that the fee or charge is obligated or
expended only in support of 9-1-1 and enhanced 9-1-1 services, or
enhancements of such services, consistent with the purposes and
functions designated in [the Commission's forthcoming rules] as
purposes and functions for which the obligation or expenditure of such
a fee or charge is acceptable.'' In this regard, section 902 charges
the Commission with adopting rules defining what relevant statutory
provisions mean, a responsibility we fulfill in adopting the rules in
this Report and Order. In this regard, when we define and describe
[[Page 45894]]
``acceptable'' expenditures in this Report and Order or in our rules,
we mean to use that term as Congress did in section 902(c)(1)(C).
On February 17, 2021, we adopted a notice of proposed rulemaking
(NPRM), which proposed rules to implement section 902 and address 911
fee diversion.\7\ The Commission received twenty-eight comments, nine
reply comments, and five ex parte filings.
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\7\ 86 FR 12399 (March 3, 2021).
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II. Discussion
With this Report and Order, we adopt rules to implement the
provisions of section 902 that require Commission action. Specifically,
we amend part 9 of our rules to establish a new subpart I that
addresses 911 fees and fee diversion in accordance with and for the
purposes of the statute. The new subpart I rules (1) clarify what does
and does not constitute the kind of diversion of 911 fees that has
concerned Congress (and the Commission); (2) establish a declaratory
ruling process for providing further guidance to states and taxing
jurisdictions on fee diversion issues; and (3) codify the specific
obligations and restrictions that section 902 imposes on states and
taxing jurisdictions, including those that engage in diversion as
defined by our rules.
The record indicates that commenters are divided on whether
expenditures of 911 fees for public safety radio systems and related
infrastructure should be considered acceptable for Section 902
purposes. Our new rules provide additional guidance on this question.
We also refer additional questions concerning the application of our
new rules to the 911 Strike Force for the development of
recommendations. We also note that the petition process established by
section 902 provides a mechanism for further consideration of this
issue in the context of specific fact patterns, after adoption of the
initial rules in this proceeding. We conclude that these changes to
part 9 will advance Congress's stated objectives in section 902 in a
cost-effective manner that is not unduly burdensome to providers of
emergency telecommunications services or to state and taxing
jurisdictions. In sum, the rules we adopt in this document closely
track the statutory language addressing 911 fee diversion, and seek to
promote transparency, accountability, and integrity in the collection
and expenditure of fees collected for 911 services, while providing
stakeholders reasonable guidance as part of implementing section 902.
A. Definitions and Applicability
Section 902 defines certain terms relating to 911 fees and fee
diversion. To promote consistency, the NPRM proposed to codify these
definitions with certain modifications. As described below, we adopt
these definitions as proposed.\8\
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\8\ We also clarify in the introductory language of this section
of the rules that where the Commission uses the term ``acceptable''
in subpart I, it is for purposes of the Consolidated Appropriations
Act, 2021, Public Law 116-260, Division FF, Title IX, section
902(c)(1)(C).
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1. 911 Fee or Charge
Background. Section 902 defines ``9-1-1 fee or charge'' as ``a fee
or charge applicable to commercial mobile services or IP-enabled voice
services specifically designated by a State or taxing jurisdiction for
the support or implementation of 9-1-1 services.'' In the NPRM, we
proposed to codify this definition in the rules. However, we also noted
that the statutory definition in section 902 does not address services
that may be subject to 911 fees other than Commercial Mobile Radio
Services (CMRS) and IP-enabled voice services. As we observed in the
NPRM, the reason for this omission is unclear. For example, virtually
all states impose 911 fees on wireline telephone services and have
provided information on such fees for inclusion in the agency's annual
fee reports. In addition, as 911 expands beyond voice to include text
and other non-voice applications, states could choose to extend 911
fees to such services in the future.
To promote regulatory parity and avoid gaps that could
inadvertently frustrate the rapid deployment of effective 911 services,
including advanced Next Generation 911 (NG911) services, we proposed to
define ``911 fee or charge'' in the rules to include fees or charges
applicable to ``other emergency communications services'' as defined in
section 201(b) of the NET 911 Act. Under the NET 911 Act, the term
``other emergency communications service'' means ``the provision of
emergency information to a public safety answering point via wire or
radio communications, and may include 9-1-1 and enhanced 9-1-1
service.'' We noted that this proposed modification will make clear
that the rules in subpart I extend to all communications services
regulated by the Commission that provide emergency communications,
including wireline services, and not just to CMRS and IP-enabled voice
services. We also proposed in the NPRM to extend the definition of
``911 fee or charge'' to include fees or charges designated for the
support of ``public safety,'' ``emergency services,'' or similar
purposes if the purposes or allowable uses of such fees or charges
include the support or implementation of 911 services.
Decision. We adopt our NPRM proposal. The Michigan 911 Entities
support including ``other emergency communications services'' in the
definition, and no commenter opposes this proposal. We find that this
expansion of the definition of ``911 fee or charge'' is reasonably
ancillary to the Commission's effective performance of its statutorily
mandated responsibilities under section 902 and other Federal 911-
related statutes and Communications Act statutory provisions that,
taken together, establish an overarching Federal interest in ensuring
the effectiveness of the 911 system. The Commission's general
jurisdictional grant includes the responsibility to set up and maintain
a comprehensive and effective 911 system, encompassing a variety of
communication services in addition to CMRS and IP-enabled voice
services. Section 251(e)(3) of the Communications Act of 1934, which
directs the Commission to designate 911 as the universal emergency
telephone number, states that the designation of 911 ``shall apply to
both wireline and wireless telephone service,'' which evidences
Congress's intent to grant the Commission broad authority over
different types of communications services in the 911 context.\9\
Similarly, RAY BAUM'S Act directed the Commission to consider adopting
rules to ensure that dispatchable location is conveyed with 911 calls
``regardless of the technological platform used.'' \10\ In addition,
section 615a-1(e)(2) provides that the Commission ``shall enforce this
section as if this section was a part of the Communications Act of 1934
[47 U.S.C. 151 et seq.]'' and that ``[f]or purposes of this section,
any violations of this section, or any regulations promulgated under
this section, shall be considered to be a violation of the
Communications Act of 1934 or a regulation promulgated under that Act,
respectively.''
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\9\ 47 U.S.C. 251(e)(3).
\10\ See Consolidated Appropriations Act, 2018, Public Law 115-
141, 132 Stat. 348, Division P, Repack Airwaves Yielding Better
Access for Users of Modern Services Act of 2018 (RAY BAUM'S Act)
section 506(c)(1) (codified at 47 U.S.C. 615 Notes).
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Accordingly, we conclude that including ``other emergency
communications services'' within the scope of the definition of 911
fees is also reasonably ancillary to the Commission's effective
performance of
[[Page 45895]]
its statutorily mandated responsibilities for ensuring that the 911
system, including 911, E911, and NG911 calls and texts from any type of
service, is available, that these 911 services function effectively,
and that 911 fee diversion by states and other jurisdictions does not
detract from these critical, statutorily recognized purposes. As we
stated in the NPRM, diverting fees collected for 911 service of any
type, whether it be wireline, wireless, IP based, or text, undermines
the purpose of these Federal statutes by depriving the 911 system of
the funds it needs to function effectively and to modernize 911
operations.
We also adopt our proposal in the NPRM to extend the definition of
``911 fee or charge'' to include multi-purpose fees or charges
designated for the support of ``public safety,'' ``emergency
services,'' or similar purposes if the purposes or allowable uses of
such fees or charges include the support or implementation of 911
services. We find that this aspect of the definition is consistent with
the purpose of section 902 with respect to 911 fees and charges, which
is to discourage states and taxing jurisdictions from diverting these
fees and charges for purposes that do not directly benefit the 911
system. Moreover, as we noted in the NPRM, this aspect of the
definition is consistent with the approach taken in the agency's annual
fee reports, which have found that the mere labelling of a fee is not
dispositive and that the underlying purpose of the fee is relevant in
determining whether it is (or includes) a 911 fee within the meaning of
the NET 911 Act.
Some commenters oppose the proposal to extend the definition of
``911 fee or charge'' to include multi-purpose fees. The New York State
Division of Homeland Security and Emergency Services (NYS DHSES)
asserts that the Commission's statutory authority is limited to
``specifically designated'' 911 fees or charges, and that the
Commission lacks authority to regulate fees and charges designated for
other purposes. The Boulder Regional Emergency Telephone Service
Authority (BRETSA) argues that extending the definition as proposed
will limit 911 funding because some states (including Colorado) have a
constitutional prohibition on incurring debt and therefore must
establish contingency or sinking funds for unpredictable 911
expenditures. BRETSA asserts that if using the proceeds of such a fee
to support 911 will mean that those proceeds cannot thereafter be used
for more general purposes, the public safety answering point (PSAP) may
be denied funding when needed.
We disagree that our authority under the NET 911 Act extends only
to ``specifically designated'' 911 fees or charges. The legislative
history of the NET 911 Act indicates Congress's broad intention to
discourage or eliminate the diversion of 911 fees by states and
political subdivisions. In its report on H.R. 3403 (the bill that was
enacted as the NET 911 Act), the House Committee on Energy and Commerce
noted Congress's intent that ``[s]tates and their political
subdivisions should use 911 or E911 fees only for direct improvements
to the 911 system'' and that the Act ``is not intended to allow 911 or
E-911 fees to be used for other public safety activities that, although
potentially worthwhile, are not directly tied to the operation and
provision of emergency services by PSAPs.'' A narrow interpretation
covering only ``specifically designated'' 911 fees or charges would
frustrate this congressional purpose by creating an opportunity for
states to divert the 911 portion of a multi-purpose fee. Moreover,
there is no language in the NET 911 Act (or in the amendments made by
section 902) that limits the scope of that Act to fees designated
exclusively for 911/E911. Finally, in its annual fee reports, the
agency has found that multi-purpose fees that support 911/E911 and
other purposes fall within the Commission's authority under the NET 911
Act.
With respect to BRETSA's argument that extending the definition of
``911 fee or charge'' as proposed would prevent the establishment of
sinking or contingency funds for 911 expenditures, we disagree that
this would be prohibited under our rules. As discussed below, we also
adopt a safe harbor under which a multi-purpose fee would not be deemed
to be diverting 911 fees, and we note that sinking or contingency funds
could fall within the safe harbor, provided that they meet the relevant
criteria.
2. Diversion
Background. Section 902(f) defines ``diversion,'' with respect to a
9-1-1 fee or charge, as the obligation or expenditure of such fee or
charge for a purpose or function other than the purposes and functions
designated in the final rules issued under paragraph (3) of section
6(f) of the Wireless Communications and Public Safety Act of 1999, as
added by section 902, as purposes and functions for which the
obligation or expenditure of such a fee or charge is acceptable.
In the NPRM, we proposed to codify this definition with minor
changes to streamline it. Specifically, we proposed to define diversion
as ``[t]he obligation or expenditure of a 911 fee or charge for a
purpose or function other than the purposes and functions designated by
the Commission as acceptable pursuant to [the applicable rule section
in subpart I].'' In addition, we proposed to clarify that the
definition of diversion includes distribution of 911 fees to a
political subdivision that obligates or expends such fees for a purpose
or function other than those designated by the Commission.
Decision. We adopt this definition as proposed. We find that it
will encourage states and taxing jurisdictions to take proactive steps
to address the conditions that enable diversion of 911 fees by
political subdivisions, such as counties, that may receive 911
fees.\11\
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\11\ The Illinois State Police support extending the definition
of diversion but argue that the Commission should clarify that any
local public agency that receives 911 fees from the 911 authority
serving its jurisdiction is also responsible for the diversion of
911 fees. IL State Police Mar. 23, 2021 Comments at 2. Section 902
directs us to designate acceptable purposes and functions for the
obligation or expenditure of 911 fees by ``any State or taxing
jurisdiction.'' 47 U.S.C. 615a-1(f)(3)(A) (as amended); sec.
902(c)(1)(C). Consistent with this, we clarify that taxing
jurisdictions would be responsible for fee diversion occurring at
the level of the taxing jurisdiction.
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Several commenters raise concerns with our proposal to specify that
diversion includes distribution of 911 fees to a locality that diverts
them. The National Emergency Number Association (NENA) states that it
is concerned that the administrative burden of local surveillance and
potential lack of state-level capacity for diversion enforcement could
add to the already significant burden on state-level 911 officials.
NENA also expresses concern that states ``may lack the logistical
capability to prevent this diversion of funds, especially in a timely
manner.'' The National Association of State 911 Administrators (NASNA)
notes that in some states, service providers remit fees directly to
political subdivisions, such as counties, for 911 use and that due to
limits in their statutes or constitutions, these states have limited
authority over the local use of those funds. NASNA adds that states
``would have no visibility over how these funds are spent at the local
level.'' NASNA suggests that in states where there is limited authority
over local 911 fee collection or use, the Commission should require
that local units report directly to the Commission, and ``the state
should not be held accountable for any finding of diversion
[[Page 45896]]
occurring at the local level of which it does not have authority.''
Further, NASNA requests that the Commission ``notify the state in a
timely manner of any diversion to ensure the state can restrict or
require repayment of any grant funds or other restrictions that the
local diverter would be subject to under the FCC's rules on 911 fee
diversion.''
We find that it is consistent with the intent of section 902 to
hold states responsible for fee diversion by localities within their
boundaries. Absent such a policy, states or taxing jurisdictions could
have an incentive to avoid oversight or accountability for expenditures
by political subdivisions. We also decline to require that local units
report directly to the Commission, as NASNA requests. The NET 911 Act
requires the Commission to report on the ``status in each State'' of
the collection and distribution of 911 fees or charges, and the
agency's annual 911 fee report questionnaire is consistent with this
directive. We note that states may disclose limitations on their
authority over local 911 fee collection or use in their responses to
the fee report questionnaire and that these questionnaires are publicly
available on the Commission's website. We also note that the petition
for determination process established by section 902 provides a
mechanism for further consideration of this issue in the context of
specific fact patterns. In response to concerns that defining diversion
in this way could result in the denial of grant funding for states or
local jurisdictions on the basis of the actions of localities over
which they have no control, we note that decisions with respect to
grant eligibility will be made by the agencies managing the grant
program, not the Commission. If states and localities seek flexibility
under these circumstances with respect to eligibility for grant
funding, they must request it from the agencies managing the grant
program.\12\ We provide additional guidance below on how fee diversion
at the local level would affect eligibility for Commission advisory
panels.
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\12\ Consistent with this, the agencies administering the grant
program would decide eligibility in the situation posed by the
Illinois State Police of a locality that has diverted. See IL State
Police Mar. 23, 2021 Comments at 2.
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3. State or Taxing Jurisdiction
Background. Section 902 defines a state or taxing jurisdiction as
``a State, political subdivision thereof, Indian Tribe, or village or
regional corporation serving a region established pursuant to the
Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).'' We
proposed in the NPRM to codify this definition in our rules. We also
proposed to add the definition of ``State'' from 47 U.S.C. 615b to the
subpart I rules. Under section 615b, the term ``State'' means ``any of
the several States, the District of Columbia, or any territory or
possession of the United States.'' Accordingly, provisions in subpart I
that apply to any ``State or taxing jurisdiction'' would apply to the
District of Columbia and any United States territory or possession as
well.
Decision. We adopt these definitions as proposed. We find that
these definitions will be helpful to users of the subpart I
regulations, and no commenter opposes them. With respect to the scope
of subpart I, we proposed in the NPRM that the rules would apply to
states or taxing jurisdictions that collect 911 fees or charges (as
defined in that subpart) from commercial mobile services, IP-enabled
voice services, and other emergency communications services. We believe
this provision will help to clarify application of the subpart I rules,
and no commenter opposes this proposal. Accordingly, we adopt this rule
as proposed.
B. Designation of Obligations or Expenditures Acceptable for Purposes
of Section 902
Section 902 requires the Commission to issue rules ``designating
purposes and functions for which the obligation or expenditure of 9-1-1
fees or charges, by any State or taxing jurisdiction authorized to
impose such a fee or charge, is acceptable'' for purposes of the
statute. In addition, section 902 provides that the purposes and
functions designated as acceptable for such purposes ``shall be limited
to the support and implementation of 9 1 1 services provided by or in
the State or taxing jurisdiction imposing the fee or charge and
operational expenses of public safety answering points within such
State or taxing jurisdiction.'' Section 902 also provides that the
Commission shall consider the purposes and functions that states and
taxing jurisdictions specify as their intended purposes and ``determine
whether such purposes and functions directly support providing 9-1-1
services.'' \13\ Moreover, section 902 provides states and taxing
authorities with the right to file a petition with the Commission for a
determination that an obligation or expenditure of a 911 fee or charge
that is imposed for a purpose or function other than those designated
as acceptable for purposes of the statute in the Commission rules
should nevertheless be treated as having an acceptable purpose or
function for such purposes.
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\13\ 47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).
Section 902 also provides that the Commission ``shall consult with
public safety organizations and States and taxing jurisdictions as
part of any proceeding under this paragraph.'' 47 U.S.C. 615a-
1(f)(3)(C) (as amended); sec. 902(c)(1)(C). The legislative history
of section 902 states that ``[a]s part of any proceeding to
designate purposes and functions for which the obligation or
expenditure of 9-1-1 fees or charges is acceptable, the FCC is
required to consider the input of public safety organizations and
States and taxing jurisdictions.'' House of Representatives
Committee on Energy and Commerce, Report on Don't Break Up the T-
Band Act of 2020, H.R. Rep. No. 116-521, at 8 (2020) (emphasis
added). We received one comment on this specific issue. See New York
State Division of Homeland Security and Emergency Services (NYS
DHSES) Comments, PS Docket Nos. 20-291 and 09-14, at 9 (rec. Mar.
23, 2021) (arguing that ``the consultation must be in addition to
the comments made in response to the Proposed Rule''). We note that
to satisfy the consultation requirements of section 902, the Public
Safety and Homeland Security Bureau staff conducted outreach to a
diverse representative sample of public safety organizations,
states, and taxing jurisdictions that expressed an interest in fee
diversion issues generally prior to the release of this Report and
Order; we solicited public comments on the proposed rules
implementing section 902; and we released a public draft prior to
adoption of the NPRM so that further input on it could help to
inform the Commission's decision.
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1. Standard for Determining Acceptable Purposes and Functions for 911
Fees
Background. In the NPRM, we proposed to codify the statutory
standard for acceptable purposes and functions for the obligation or
expenditure of 911 fees or charges by providing that acceptable
purposes and functions for purposes of the statute are limited to (1)
support and implementation of 911 services provided by or in the state
or taxing jurisdiction imposing the fee or charge, and (2) operational
expenses of PSAPs within such state or taxing jurisdiction. We also
noted that this language tracks the language in section 902.
Decision. We adopt the general standard for designating acceptable
purposes and functions for expenditures of 911 fees as proposed in the
NPRM, with minor modifications to clarify that these designations of
acceptable obligations or expenditures are for purposes of section
902.\14\ Commenters are generally supportive of this proposal, and the
proposed language tracks the language of section 902.
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\14\ In particular, we revise the title of Sec. 9.23 to read,
``Designation of acceptable obligations or expenditures for purposes
of the Consolidated Appropriations Act, 2021, Division FF, Title IX,
section 902(c)(1)(C).'' We also add a reference to ``for purposes of
section 902'' in the introductory language of Sec. 9.23(a) and (c).
See Appendix A of the Commission's Report and Order (final rules).
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Several commenters urge the Commission to clarify the term ``911
services'' or ``911 systems'' in the
[[Page 45897]]
proposed rule. The City of Aurora asserts that as proposed, the term
would be narrowly limited to receipt of the call at the PSAP and
processing the call through computer aided dispatch (CAD) 911, and that
911 services should include ``all technology, staff, training, and
administration necessary to effectively provide emergency response to
the caller.'' The Colorado Public Utilities Commission (CoPUC) comments
that what constitutes 911 services ``may mean different things to
different people, particularly as technological advances in emergency
communications technology blur the lines between what may be considered
`911 service' and what may be just part of the emergency communications
ecosystem.''
State and local 911 authorities also urge the Commission to adopt
broad rules that would provide flexibility at the state and local level
and to defer to states and local authorities in determining what
constitutes fee diversion. NASNA argues that ``[t]hese rules must be
implemented in a manner that does not create conflict with existing
state statutes and guidelines.'' NASNA adds that it believes the
proposed rules ``do not consider each state's current legislative and
regulatory processes that (1) involve their citizen knowledge and
involvement, (2) have longstanding systems in place, and (3) have
evolved through consensus-based processes that involve both the public
safety community and the communication industry.'' The Oklahoma 911
Management Authority (Oklahoma 911) similarly urges the Commission to
make the rules ``broad and allow for flexibility within the State and
region to narrow the requirements to fit local need.'' Adams County,
CO, et al. encouraged the FCC to include a safe harbor for 911 entities
that utilize funds from 911 fees in compliance with state laws
substantially equivalent to the Colorado statute. BRETSA and the
National Public Safety Telecommunications Council (NPSTC) also raise
concerns that state fees and taxes are ``matters of state interest,''
or that the Commission should consider whether Federal rules defining
how state funds can be used encompass any states' rights issues. Some
commenters note that funding priorities and needs may evolve over time,
and contend that it is not apparent that the proposed rules provide
sufficient flexibility for the future. CTIA--the Wireless Association
(CTIA), on the other hand, responds that the Commission may not defer
to state laws regarding the permissible uses of 911 fees, as some
commenters suggest, because section 902 charges the Commission with the
responsibility to determine the appropriate purposes and functions for
which 911 fees may be used. CTIA asserts that ``[i]t is well settled
that federal agencies may not subdelegate such authority to outside
entities (including state sovereign entities) absent express authority
to do so, and nothing in the statute permits the Commission to
subdelegate this responsibility.''
We agree that our rules should be reasonably broad given the
diverse and evolving nature of the 911 ecosystem. Consistent with this
approach, our rules identify broad categories of acceptable purposes
and functions for 911 fees and provide examples within each category to
guide states and localities.\15\ As the rules make clear, the examples
of acceptable expenditures for purposes of section 902 are non-
exclusive and are meant to be illustrative; they are not intended to
anticipate every possible use of 911 fees at the state and local level.
State and local jurisdictions thus have discretion to make reasonable,
good faith determinations whether specific expenditures of 911 fees are
acceptable under our rules. In light of this, we do not believe
additional clarification of the terms ``911 services'' or 911 systems''
is necessary. We also note that the petition for determination process
afforded by section 902 provides a mechanism for states and taxing
jurisdictions that seek additional guidance on whether a particular
expenditure would be an acceptable use of 911 fees.
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\15\ NYS DHSES contends that the statutory standard for granting
a petition for determination under section 902(c)(1)(C) is broader
than the standard for defining ``acceptable'' 911 expenditures in
the rules, and asserts that the Commission's proposed rules for
designating the ``acceptable'' purposes and functions should be
consistent with, and not narrower than, the petition standards. NYS
DHSES Mar. 23, 2021 Comments at 5-6. See similarly City of Aurora,
CO Mar. 22, 2021 Comments at 2-3 (arguing language of petition
standard supports broader definition of ``acceptable'' 911 use).
However, we interpret these two provisions of section 902 as
balancing each other, and we reject any argument that Congress
intended inconsistent standards for the two provisions. In section
902(c)(1)(C), Congress set forth the standard for the Commission to
use in adopting rules by the statutory June 25, 2021 deadline, and
then separately set forth the complementary standard for the
Commission to use in deciding petitions for determination going
forward, to address yet to be identified acceptable 911 purposes or
functions in the face of a diverse and evolving 911 ecosystem.
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We do not agree, however, with commenters who contend that the
Commission should defer to state and local law on what constitutes fee
diversion for purposes of section 902. As CTIA points out, section 902
charges the Commission with responsibility for determining appropriate
purposes and functions for expenditure of 911 funds. A policy of
deferring to states or localities on what constitutes fee diversion
would negate one of the principal aspects for these purposes of section
902, which is that it revises the language in 47 U.S.C. 615a-1 to make
clear that fee diversion is not whatever state or local law says it is.
Accordingly, we decline to create a safe harbor for 911 entities that
use 911 fees in compliance with their state statute, as this would
essentially make the categories of acceptable purposes and functions we
establish herein meaningless. We also disagree that our rules encroach
in any way on states' rights. Following the congressional directive
given to the Commission in section 902, and in furtherance of a
nationwide 911 and E911 service, the rules identify and define
categories of expenditures that are, or are not, acceptable for 911
fees for the specific purposes of section 902 and, consistent with the
statute, provide consequences for states or taxing jurisdictions found
to be diverting (such as ineligibility to serve on certain advisory
panels). The rules do not, however, prohibit or require collection or
expenditure of 911 fees by any state or taxing jurisdiction.
Finally, we clarify the phrase ``support and implementation of 911
services provided by or in the state or taxing jurisdiction imposing
the fee or charge,'' under new Sec. 9.23(a). Some commenters contend
that, as proposed in the NPRM, Sec. 9.23(a) would prohibit states or
other taxing jurisdictions from spending 911 fees outside of the
originating jurisdiction (i.e., cross-subsidization) and urge the
Commission to permit such expenditures. We believe that Congress did
not intend to address all 911 fund cross-subsidization with this
language, and this is not the meaning of Sec. 9.23(a). Indeed, many
cross-subsidization situations across local or state lines may be
necessary for the benefit of a state or taxing jurisdiction's own 911
system. For example, Oklahoma 911 argues that it should be deemed
acceptable for purposes of section 902 for the landline fees collected
at a very granular level locally to be used to ``pay for valid 9-1-1
expenses outside of the originating taxing jurisdiction when
municipalities and counties regionalize or consolidate.'' BRETSA
argues, e.g., that there are large or sparsely populated areas that
have insufficient PSAP coverage and need subsidies from other taxing
jurisdictions within the state. Providing such subsidies from
[[Page 45898]]
another taxing locality might benefit the taxing locality not only by,
e.g., providing mutual redundancy and backup, but also by reducing the
load on the taxing locality's 911 system because it no longer has to
step in regularly to provide 911 service and support for the
underserved area, potentially also at much greater expense and
difficulty due to the lack of interconnectivity. In sum, we do not
believe that Congress in section 902(c)(1)(C) intended to prohibit
cross-subsidization from one taxing state or jurisdiction to another to
the detriment of a robust, efficient, and reliable 911 system that
serves the public.\16\
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\16\ We note that the petition for determination process
provides a mechanism for states and taxing jurisdictions to seek
additional guidance in applying Sec. 9.23(a) to a particular
proposal for use of 911 fees for cross-subsidization to meet local
needs.
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2. Designation of Acceptable Purposes and Functions for 911
Expenditures
Background. We proposed in the NPRM that examples of acceptable
purposes and functions include, but not be limited to, the following,
provided that the state or taxing jurisdiction can adequately document
that it has obligated or spent the fees or charges in question for
these purposes and functions:
(1) PSAP operating costs, including lease, purchase, maintenance,
and upgrade of customer premises equipment (CPE) (hardware and
software), computer aided dispatch (CAD) equipment (hardware and
software), and the PSAP building/facility;
(2) PSAP personnel costs, including telecommunicators' salaries and
training;
(3) PSAP administration, including costs for administration of 911
services and travel expenses associated with the provision of 911
services;
(4) Integrating public safety/first responder dispatch and 911
systems, including lease, purchase, maintenance, and upgrade of CAD
hardware and software to support integrated 911 and public safety
dispatch operations; and
(5) Providing for the interoperability of 911 systems with one
another and with public safety/first responder radio systems.
We noted in the NPRM that we believe these purposes and functions
are consistent with the general standard for designating acceptable
uses of 911 fees and charges set out in section 902. In addition, we
noted that these purposes and functions are consistent with the
agency's past analysis of 911 fee diversion in its annual fee reports,
as well as the legislative history of the NET 911 Act. We sought
comment in the NPRM on our proposed designation of acceptable and
unacceptable purposes and functions under the statute, including
whether our proposals were underinclusive or overinclusive. In
addition, we sought comment on the purposes and functions that states
and taxing jurisdictions have specified as the intended functions for
911 fees and charges and how we should take these specifications into
account as we designate acceptable purposes and functions under section
902.
Decision. We revise one of the categories of acceptable purposes
and functions in response to commenters' requests for additional
examples of expenditures that fall within the category. We adopt the
other categories as proposed in the NPRM.
Commenters generally support the proposed framework of general
categories of acceptable and unacceptable expenditures for purposes of
section 902, with examples within each category. CTIA states that it
supports the proposed standard for determining acceptable purposes and
functions and notes that section 902 directs the Commission, in
considering expenditures, to ``determine whether such purposes and
functions directly support providing 9-1-1 services.'' Intrado states
that ``the basic framework proposed by the Commission of providing a
list of acceptable and unacceptable expenditures and obligations for
911 fees is sound. Addressing fee diversion through a non-exhaustive
list of acceptable and unacceptable purposes and functions will
invariably produce objections from affected parties. What matters most,
however, is the Commission sets a clear demarcation line for compliance
that public safety organizations can internalize, which the Commission
can accomplish using the proposed rule's framework with an acceptable/
unacceptable list of expenditures and obligations.''
Other commenters request additions or changes to the categories of
acceptable expenditures. CoPUC contends that more clarity is needed
regarding what constitutes ``operational expenses of PSAPs'' in
proposed Sec. 9.23(b)(1) because a wide range of different service
models exist. Commenters also ask the Commission to clarify the term
``interoperability'' in proposed Sec. 9.23(b)(5). In addition,
commenters request a variety of additions to the list of examples
within each category, including expenditures for pre-arrival
instructions and associated training; maintenance and replacement
costs; 911 cybersecurity; budgeting and forecasting; hiring, retention,
and training of staff; industry-specific training through organizations
such as NENA and the Association of Public-Safety Communications
Officials-International, Inc. (APCO); mental health services for 911
professionals; administrative expenses for overseeing 911 programs;
compliance costs; 911 call processing systems; CAD systems, mobile data
computers (MDCs); geographic information systems (GIS) call routing,
wide area networks (WANs), Emergency Services IP Networks (ESInets),
and other NG911 technologies; emergency notification systems (ENS); and
platforms such as Smart911 and RapidSOS. BRETSA provides an extensive
list of requested additions, as does the Illinois State Police.
We agree with commenters that it would be helpful to add some of
these examples to the language of the rule. Specifically, we revise
Sec. 9.23(b)(1) to refer to PSAP operating costs, including lease,
purchase, maintenance, replacement, and upgrade of customer premises
equipment (CPE) (hardware and software), computer aided dispatch (CAD)
equipment (hardware and software), and the PSAP building/facility and
including NG911, cybersecurity, pre-arrival instructions, and emergency
notification systems (ENS). PSAP operating costs also include
technological innovation that supports 911.
This revision to the proposed rule makes clear that replacement of
911 systems is an acceptable expenditure for purposes of Section 902
and that 911 includes pre-arrival instructions and ENS. We also add a
reference to cybersecurity. As NPSTC and BRETSA note, CSRIC VII
recently recommended that spending on cybersecurity improvements be
``explicitly authorized as an eligible use of 9-1-1 funds.'' We also
add a reference to NG911, and we revise the language to make clear that
acceptable expenditures for these purposes include funding not just for
existing systems, but also for innovation that will support 911 in the
future.\17\ We
[[Page 45899]]
find that these additions to the rule will help to clarify the scope of
acceptable expenditures for PSAP operating costs in the implementation
of section 902.
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\17\ The North Carolina 911 Board (NC 911 Board) suggests
clarifying the proposed rules to ``specifically identify'' NG911
services in a manner consistent with 47 U.S.C. 942(e)(1), which
defines next generation 911 services as an IP-based system comprised
of hardware, software, data, and operational policies and procedures
that--(A) provides standardized interfaces from emergency call and
message services to support emergency communications; (B) processes
all types of emergency calls, including voice, data, and multimedia
information; (C) acquires and integrates additional emergency call
data useful to call routing and handling; (D) delivers the emergency
calls, messages, and data to the appropriate public safety answering
point and other appropriate emergency entities; (E) supports data or
video communications needs for coordinated incident response and
management; and (F) provides broadband service to public safety
answering points or other first responder entities. NC 911 Board
Mar. 31, 2021 Reply at 2; 47 U.S.C. 942(e)(5). States and taxing
jurisdictions should use this definition if they find it is helpful,
but we decline to add it to our rules. We believe NG911 technology
is still evolving and that we lack an adequate record to define it
at this time.
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With respect to additional suggestions from commenters for
identifying specified uses of 911 funds as acceptable for purposes of
Section 902, we do not believe it is necessary to add every specific
example to the text of the rules or to attempt further clarification of
terms such as ``operating expenses'' or ``interoperability.'' As we
note above, we intend to keep these rules general so that states and
taxing jurisdictions have reasonable flexibility to use their good
faith judgment in applying the rules to particular circumstances. In
addition (and as the rules explicitly state), the categories and
examples are non-exclusive and are not intended to specify every
possible use of 911 fees that would be acceptable. We also note that
the petition for determination process provides a mechanism for states
and taxing jurisdictions that seek additional guidance in applying the
rules to a particular proposal for use of 911 fees.
3. Designation of Unacceptable Purposes and Functions for 911
Expenditures
Background. We sought comment in the NPRM on specifying examples of
purposes and functions that are not acceptable for the obligation or
expenditure of 911 fees or charges for purposes of the statute. We
proposed in Sec. 9.23(c) of the rules that such examples would
include, but not be limited to, the following:
Transfer of 911 fees into a state or other
jurisdiction's general fund or other fund for non-911 purposes;
Equipment or infrastructure for constructing or
expanding non-public safety communications networks (e.g.,
commercial cellular networks); and
Equipment or infrastructure for law enforcement,
firefighters, and other public safety/first responder entities,
including public safety radio equipment and infrastructure, that
does not have a direct impact on the ability of a PSAP to receive or
respond to 911 calls or to dispatch emergency responders.
We noted that identifying these examples as unacceptable
expenditures for purposes of the statute is consistent with the manner
in which such expenditures have been analyzed in the agency's annual
911 fee reports and sought comment on whether these examples should be
codified.\18\
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\18\ See NPRM at 10, paras. 24-25. For example, the annual fee
reports have repeatedly found that transferring 911 fees to the
state's general fund or using 911 fees for the expansion of
commercial cellular networks constitutes fee diversion. See NPRM at
11, para. 25. The fee reports also have found that expenditures to
support public safety radio systems, including maintenance,
upgrades, and new system acquisitions, are not 911 related. See NPRM
at 11, para. 25. In addition, the agency has found that radio
networks used by first responders are ``technically and
operationally distinct from the 911 call-handling system.'' See NPRM
at 11, para. 25. Given our request for comment in the NPRM on such
examples in the annual fee reports, we reject contentions such as
those raised by Michigan 911 Entities, who argue that the statements
in the agency's fee reports on public safety radios were never part
of a notice and comment rulemaking and therefore cannot be used as a
rationale for adopting rules in this proceeding. Michigan 911
Entities Mar. 23, 2021 Comments at 11-12 & n.6.
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Decision. We adopt these provisions as proposed in the NPRM, with
two minor modifications to Sec. 9.23(c)(3), as detailed below. In
light of the divided record on using 911 fees for public safety radio
systems, we provide additional guidance on when such use of 911 fees
will be deemed to have purposes or functions that ``directly support
providing 9-1-1 services'' and so qualifies as ``acceptable'' for
purposes of avoiding section 902 consequences. We also seek
recommendations from the 911 Strike Force on developing additional
specific examples in these regards.
We adopt our proposal to classify as unacceptable for Section 902
purposes the transfer of 911 fees into a general fund or other fund for
non-911 purposes. The agency's annual fee reports consistently have
found that transferring 911 fees to a state's general fund constitutes
fee diversion. In addition, no commenter opposes this provision.
We also adopt our proposal that expenditures of 911 fees for
constructing or expanding non-public safety communications networks,
such as commercial cellular networks, are not acceptable for Section
902 purposes. This finding is consistent with our approach in the
agency's annual 911 fee reports, where the agency has concluded, for
example, that construction of commercial cellular towers to expand
cellular coverage is not 911 related within the meaning of the NET 911
Act. In the Twelfth Annual Report to Congress on State Collection and
Distribution of 911 and Enhanced 911 Fees and Charges, the agency
explained that, although expanding cellular coverage ``enhances the
public's ability to call 911,'' the NET 911 Act focuses on funding the
elements of the 911 call-handling system that are operated and paid for
by state and local 911 authorities.
Some commenters recommend a more ``nuanced'' approach that would
allow 911 spending on non-public safety communications networks in
certain circumstances. For example, BRETSA agrees that ``wireless
providers should not require 9-1-1 Authorities to subsidize expansion
of their coverage with 9-1-1 Fees,'' \19\ but expresses concern that
Sec. 9.23(c)(2) could prevent Colorado from providing ``diverse
paths'' to ``currently unprotected Central Offices [ ] serving PSAPs''
due to ``incidental benefits to wireless providers.'' Oklahoma 911
contends that expenditures to provide for PSAP backup during outages
should be looked at on a ``case by case basis'' at the state and local
level, to ensure 911 calls are delivered ``quickly and appropriately.''
We agree that expenditures to provide redundancy, backup, or resiliency
in components of the 911 network (e.g., components that provide path
diversity to PSAPs or support rerouting of 911 traffic in the event of
an outage) would not be deemed unacceptable under this rule. We also
note that the petition for determination process provides a mechanism
for states and taxing jurisdictions to seek additional guidance in
applying Sec. 9.23(c)(2) to a particular proposal for use of 911 fees
to meet local needs.
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\19\ BRETSA Mar. 23, 2021 Comments at 27. BRETSA also urges the
Commission to focus on the wireless providers, rather than the 911
Authority, when the Commission finds diversion of 911 fees to
subsidize commercial wireless towers. BRETSA notes, for example,
that the Bureau has labeled West Virginia a fee diverter for
``subsidizing construction of wireless towers to extend 9-1-1
calling capabilities to areas wireless providers have found or
represented are not financially viable or only marginally
financially viable to serve,'' that wireless providers require 911
Authorities to ``subsidize with 9-1-1 Fees their own commercial
wireless services within their licensed service areas,'' and that
911 service is ``an exception to the rule that providers bear the
cost of delivering their customers [sic] calls.'' Boulder Regional
Emergency Telephone Service Authority Reply, PS Docket Nos. 20-291
and 09-14, at 16-17 (rec. Apr. 2, 2021) (BRETSA Apr. 2, 2021 Reply);
see also BRETSA Mar. 23, 2021 Comments at 27-28 (``focus should be
on the Commission's coverage rules and the actions of the wireless
providers rather than on the 9-1-1 Authorities who must pay these
subsidies for the providers to expand coverage''). We refer to the
911 Strike Force for further consideration the issue of whether, and
how much, the Commission should focus on wireless providers, rather
than 911 authorities, when finding fee diversion for subsidization
of commercial wireless towers.
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We also adopt with minor modifications our proposal to classify as
unacceptable, for purposes of section
[[Page 45900]]
902, expenditures of 911 fees on equipment or infrastructure for law
enforcement, firefighters, and other public safety/first responder
entities that do not directly support 911 services. We revise the
language of this section slightly to provide that examples of purposes
and functions that are not acceptable for the obligation or expenditure
of 911 fees or charges for purposes of section 902 include, but are not
limited to, ``Equipment or infrastructure for law enforcement,
firefighters, and other public safety/first responder entities that
does not directly support providing 911 services.'' The reference to
whether such equipment or infrastructure ``directly support[s]
providing 911 services'' more closely tracks the language in section
902.
Further, with respect to the application of this rule to public
safety radio expenditures, we leave the precise dividing line between
acceptable and unacceptable radio expenditures open for further
refinement, and we refer this issue to the 911 Strike Force for further
consideration and the development of recommendations.
Commenters were divided on whether using 911 funds to pay for
public safety radio systems constitutes fee diversion. The Tarrant
County (TX) 9-1-1 District strongly disagrees with commenters who
assert that allowable uses of 911 fees should include items such as
radio infrastructure, mobile radios, portable radios, pagers or other
systems: ``THIS is exactly the problem. Agencies want to fund the
entire public safety response system by recategorizing equipment,
vehicles, and unrelated systems as part of the 9-1-1 response. It is
emphatically NOT all part of the 9-1-1 system. The purpose of the fee
is strictly to support Basic 9-1-1 and Enhanced 9-1-1 (E911) services
only.'' CTIA and NTCA--The Rural Broadband Association (NTCA) argue
that allowing radio system expenses would depart from fee report
precedent, where the agency has ruled that use of funds to support
public safety radio systems and associated maintenance and upgrades are
not 911-related and constitute fee diversion. The North Carolina 911
Board (NC 911 Board) supports the NPRM proposal and notes that it only
funds radio expenses within the PSAP based on the definition of ``call
taking'' in the North Carolina statute.
However, some state and local 911 entities urge the Commission to
find that expenditures of 911 funds on public safety radio systems are
broadly acceptable and do not constitute fee diversion. These
commenters contend that radio networks are not operationally and
technically distinct from the 911 system and should be treated as
integral components of the 911 ecosystem. For example, NYS DHSES
asserts that ``[p]ublic safety communication systems are most effective
when they address all users. This requires connecting the general
public to 911 Centers and their telecommunicators who, in turn,
communicate with first responders in the field.'' The Michigan 911
Entities assert that ``[u]nless the Commission is suggesting that
police and fire go back to the wired Call Box on the street corner,
there is no doubt that a PSAP is virtually useless without its
interconnection to the radio system. Similarly, that radio system is
useless without subscriber units for the system with which to
communicate.''
Several commenters also assert that our proposal to consider
expenditures for public safety radio expenses unacceptable for section
902 purposes in certain circumstances is inconsistent with our proposal
that expenditures providing for ``the interoperability of 911 systems
with one another and with public safety/first responder radio systems''
would be acceptable. The Pennsylvania Emergency Management Agency
(PEMA) asserts that ``[t]he proposed rules imply there is a boundary
between acceptable and not acceptable radio system expenses, but it is
not clear where the boundary lies.'' CoPUC states that the line between
acceptable and unacceptable radio equipment ``is not clear at all'' and
that ``[p]resumably, radio equipment inside the PSAP is allowed, but
everything from the PSAP to the portable radio on a patrol officer's
utility belt is part of the infrastructure required to dispatch
emergency responders.''
The issue whether radio system expenditures are acceptable or
unacceptable for purposes of section 902 turns on how the Commission
interprets the statutory provision that 911 fee expenditures directly
support the provision of 911 services. We believe it is important to
strike a balance between the opposing views in the record while
recognizing the evolving nature of the 911 landscape and the variety of
specific issues that could arise. Therefore, we reject as overbroad the
proposition that all public safety radio expenditures ``directly
support the provision of 911 services'' and are therefore acceptable.
This is inconsistent with the standard applied in prior 911 fee reports
and risks becoming an exception that swallows the rule. However, the
test of whether specific radio expenditures directly support the
provision of 911 services should be sufficiently flexible to allow for
innovation and evolution in the 911 environment. For example,
acceptable radio expenditures are not necessarily limited to technology
``inside the PSAP'' and could extend to development of integrated
communications systems that support 911-related functions such as
caller location or that enhance 911 reliability and resiliency. As NENA
points out, the Commission's determinations with respect to edge cases
``evolve and are clarified over time as [the agency] is confronted with
new quasi-9-1-1 public safety expenditures.'' We therefore decline to
define a ``bright line'' test for applying the rule to specific radio
expenditures.
We also find that commenters on both sides of this issue raise
arguments that warrant additional consideration in determining where
the line should be drawn between acceptable and unacceptable
expenditures for public safety radio equipment. Accordingly, we do not
specify public safety radio expenditures in our codified list of
unacceptable uses, but we adopt our proposal defining expenditures on
infrastructure or equipment as unacceptable if they do not directly
support providing 911 services. In addition, we refer this issue to the
911 Strike Force for further guidance on how to apply this standard--to
be delivered to the Commission contemporaneously with its final report
to Congress--including the extent to which radio expenditures should be
considered acceptable for purposes of section 902 because they provide
for the interoperability of 911 systems with one another and with
public safety/first responder radio systems. Finally, we note that the
petition for determination process established by the statute provides
a mechanism for further consideration of this issue in the context of
specific cases after adoption of these rules.
4. Safe Harbor for Multi-Purpose Fee or Charge
Background. In the NPRM, we proposed to adopt an elective safe
harbor in our rules providing that if a state or taxing jurisdiction
collects fees or charges designated for ``public safety,'' ``emergency
services,'' or similar purposes and a portion of those fees goes to the
support or implementation of 911 services, the obligation or
expenditure of such fees or charges shall not constitute diversion
provided that the state or taxing jurisdiction: (1) Specifies the
amount or percentage of such fees or charges that is dedicated to 911
services; (2) ensures that the 911 portion of such fees or charges is
segregated and not
[[Page 45901]]
commingled with any other funds; and (3) obligates or expends the 911
portion of such fees or charges for acceptable purposes and functions
as defined in Sec. 9.23 under new subpart I. We reasoned that the
rules should provide states and taxing jurisdictions the flexibility to
apportion the collected funds between 911 related and non-911 related
programs, but include safeguards to ensure that such apportionment is
not subject to manipulation that would constitute fee diversion.
Decision. We adopt the safe harbor provision as proposed. As we
note above, Congress tasked us with designating the acceptability of
the obligation and expenditure of 911 fees or charges for purposes of
determining whether section 902 consequences will apply. Consistent
with that mandate, and to incentivize states and taxing jurisdictions
to be transparent about multi-purpose fees, adopting a safe harbor
provision offers flexibility to states and taxing jurisdictions to have
the 911 portion of such multi-purpose fees be deemed acceptable while
not having the non-911 portion be deemed diversion. Some commenters
support adoption of the proposed safe harbor, while other commenters
object to the creation of the safe harbor provision as regulating non-
911 fees outside of the Commission's authority or as burdensome. In
establishing the safe harbor, we believe that we are neither regulating
non-911 fees nor overstepping the responsibility Congress required of
the Commission. Because new paragraphs (3)(A) and (B) of section 615a-
1(f) require the Commission to define ``acceptable'' expenditures of
911 fees or charges for purposes of section 902, and because some
states and taxing jurisdictions collect 911 fees or charges as part of
multi-purpose fees, we conclude that the Commission has the obligation
to consider the portions of such fees that are dedicated to 911
services. The safe harbor is a voluntary provision that provides a set
of criteria for states and taxing jurisdictions with multi-purpose fees
to demonstrate that they are not diverting 911 fees or charges.
Accordingly, Sec. 9.23(d)(2), which provides that the 911 portion of
such fees or charges is segregated and not commingled with any other
funds, only applies to states and taxing jurisdictions that opt to use
the safe harbor provision to demonstrate that they are not diverting
911 fees. Arguments that fee segregation exceeds the Commission's
authority or is burdensome are obviated by the elective nature of the
safe harbor.
We find that the safe harbor will promote visibility into how funds
ostensibly collected for both 911 and other purposes are apportioned,
which furthers Congress's transparency goals and enhances our ability
to determine whether 911 funds are being diverted. Without such
visibility, multi-purpose fees could be used to obscure fee diverting
practices from Commission inquiry, and potentially could render our
rules and annual 911 fee report ineffective.
We also clarify that the safe harbor provision is not intended to
preclude the use of fees collected for non-911 purposes from later
being used for 911 purposes. BRETSA ``supports the Commission's
proposal in Section 9.23(d),'' but challenges a purported provision
that ``if a fee which is specified to be for a purpose other than 9-1-1
is used to support 9-1-1, it will thereafter be considered a 9-1-1
Fee.'' BRETSA misconstrues the safe harbor provision. Nothing in the
rules we adopt in this document would prevent a state or taxing
jurisdiction from using fees originally collected for other public
safety purposes to instead support 911 services if needed, and then
later using those same non-911 public safety fees to support other
public safety purposes again.
BRETSA also contends that the safe harbor prohibition on comingling
of 911 funds with other funds is ``unnecessarily restrictive.'' We
disagree. Segregation of 911 funds in a separate account will help to
ensure that the funds are fully traceable, provide a straightforward
framework to avoid 911 fee diversion issues, and promote transparency
in the use of 911 fees when a state or taxing jurisdiction collects a
fee for both 911 and non-911 purposes. We also clarify that states and
taxing jurisdictions are not required to use the safe harbor provision
of our rules. Thus, a state or taxing jurisdiction may create an
alternative multi-purpose fee mechanism that does not meet the safe
harbor requirements. If it does so, however, the burden will be on the
state or taxing jurisdiction to demonstrate that it is not diverting
911 funds.
Finally, BRETSA suggests that ``[i]n section 9.23(d)(1), it should
suffice if the 9-1-1 funding statute or regulations specify the: (i)
Amount or percentage of such fees or charges which are dedicated to
purposes other than 9-1-1 Services, (ii) minimum amount or percentage
dedicated to 9-1-1 services, or (iii) prioritize use of the fees or
charges for 9-1-1 Service (e.g., permit use of the fees for non-911
purposes after the costs of 9-1-1 Service have been met[)].'' BRETSA's
suggestions (i) and (ii) appear consistent with Sec. 9.23(d)(1), as
long as the state or taxing jurisdiction adheres to Sec. 9.23(d)(2)
requiring that the fees be kept segregated. We do not intend the safe
harbor to restrict flexibility of states and taxing jurisdictions to
adjust the percentages of a multi-purpose fee that are allocated to 911
and non-911 purposes.
5. Diverter Designations
Some commenters raise concerns regarding the sufficiency of the
process by which jurisdictions are determined to be engaged in
diversion by the Commission, or request additional procedural
safeguards before being designated a diverter in the annual fee report.
In addition, some commenters urge creation of an appeal process for
states identified as diverters, and one commenter requests a process by
which a diversion finding can be removed once a state has come into
compliance.
We decline to adopt such procedures that are not provided for in
either section 902 or the NET 911 Act. As discussed above, Congress
directed the Commission to adopt final rules defining the acceptable
uses of 911 fees and to rule on petitions for determination for
additional uses, in order to discourage fee diversion.\20\ Section 902
also does not alter the well-established data collection and reporting
process that the agency has employed to compile its annual reports. To
the contrary, Congress implicitly affirmed the agency's existing
reporting processes by requiring that Federal grant recipients
participate in the annual data collection.
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\20\ 47 U.S.C. 615a-1(f)(3)(A), (f)(5) (as amended); sec.
902(c)(1)(C). Furthermore, Congress defined diversion under section
902(f)(4) in reference to the final rules that the Commission issues
here, stating that diversion is ``the obligation or expenditure of
such fee or charge for a purpose or function other than the purposes
and functions designated in the final rules.'' 47 U.S.C. 615a-1
Statutory Notes (as amended); sec. 902(f)(4). When the agency
reports to Congress as required by 47 U.S.C. 615a-1(f)(2) on the
status of diversion in states and taxing jurisdictions, it will do
so using this definition. See 47 U.S.C. 615a-1 Statutory Notes (as
amended); sec. 902(d)(2).
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For similar reasons, we decline to establish a ``glide path'' or
``phase-in'' period for states and taxing jurisdictions to come into
compliance with our rules, as proposed by some commenters. Section 902
does not provide any mechanism for the Commission to delay the
implementation of these rules under the statute. We recognize that
commenters are concerned about the potential 911 grant eligibility
consequences of being designated a fee diverter based on the rules
adopted in this order. The Michigan Chapter of APCO, for example,
asserts that a
[[Page 45902]]
determination of diversion puts significant Federal grant money at
risk, which could hinder the 911 system in fulfilling its primary
purpose and ultimately harm those it was originally created to protect.
Several commenters note that a finding of diversion could impact
eligibility for future grants under the Leading Infrastructure for
Tomorrow's America (LIFT America) Act if it is enacted into law.
However, these issues are beyond the scope of this proceeding. The
current 911 grant program is administered by the National
Telecommunications and Information Administration (NTIA) and the
National Highway Traffic Safety Administration (NHTSA), and the LIFT
America Act, as currently drafted, provides for grants to be
administered by these same agencies. Thus, these agencies, and not the
Commission, will determine the appropriate criteria for eligibility to
receive 911 grants, including whether a state or taxing jurisdiction
would be eligible in the circumstances raised by commenters.\21\
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\21\ NTIA and NHTSA administer the 911 Grant Program, enacted by
the ENHANCE 911 Act section 158 (codified at 47 U.S.C. 942(c)), and
amended by the NG911 Act section 6503 (codified at 47 U.S.C.
942(c)). In rulemakings to revise the implementing regulations for
the 911 Grant program, NTIA, NHTSA, the Department of Commerce, and
the Department of Transportation have clarified that they ``are not
bound by the FCC's interpretation of non-diversion under the NET 911
Act.'' 911 Grant Program, 83 FR 38051, 38058 (Aug. 3, 2018)
(codified at 47 CFR part 400).
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Petition for Determination
Background. Section 902(c)(1)(C) provides that a state or taxing
jurisdiction may petition the Commission for a determination that an
obligation or expenditure of a 911 fee for a purpose or function other
than those already deemed ``acceptable'' by the Commission should be
treated as an acceptable expenditure. The state or taxing jurisdiction
must demonstrate that the expenditure: (1) ``supports public safety
answering point functions or operations,'' or (2) has a direct impact
on the ability of a public safety answering point to ``receive or
respond to 9-1-1 calls'' or to ``dispatch emergency responders.'' If
the Commission finds that the state or taxing jurisdiction has provided
sufficient documentation to make this demonstration, section 902
provides that the Commission shall grant the petition.
In the NPRM, we proposed to codify these provisions in our rules.
We stated our belief that ``Congress intended this petition process to
serve as a safety valve allowing states to seek further refinement of
the definition of obligations and expenditures that are considered 911
related.'' We also stated that the proposed rule would set clear
standards for what states must demonstrate to support a favorable
ruling, including the requirement to provide sufficient documentation.
In addition, to promote efficiency in reviewing such petitions, we
proposed that states or taxing jurisdictions seeking a determination do
so by filing a petition for declaratory ruling under Sec. 1.2 of the
Commission's rules. We noted that the declaratory ruling process would
promote transparency regarding the ultimate decisions about 911 fee
revenues that legislatures and executive officials make and how such
decisions promote effective 911 services and deployment of NG911. We
proposed to delegate authority to the Public Safety and Homeland
Security Bureau to rule on these petitions for determination, following
the solicitation of comments and reply comments via public notice. We
sought comment on these proposals and on any possible alternative
processes for entertaining such petitions.
We adopt our proposed rules and procedures for addressing petitions
for determination, with some clarifications. Commenters generally
support these proposals, although most commenters recommend
modifications or additions to the process. We address these issues in
turn.
Petitions and permitted filers. First, we adopt our proposal that
states or taxing jurisdictions seeking a determination must do so by
filing a petition for declaratory ruling under Sec. 1.2 of the
Commission's rules.\22\ Some commenters, however, urge us to make the
declaratory ruling process available to other stakeholders, such as
communications providers and public safety organizations, to request
Commission guidance on whether certain measures constitute 911 fee
diversion. For example, CTIA asserts that expanding this process would
``create a deterrent effect that can restrain state or local taxing
jurisdictions from taking new actions that may constitute 9-1-1 fee
diversion.'' However, other commenters oppose expanding the petition
process to other stakeholders. The Adams County E-911 Emergency
Telephone Service Authority, Arapahoe County 911 Authority, and
Jefferson County Emergency Communications Authority (AAJ Authorities)
note that section 902 ``clearly states'' that ``only states and taxing
jurisdictions'' can initiate such proceedings, for the limited purpose
of determining whether an expenditure by such a state or taxing
jurisdiction is consistent with the Commission's rules. BRETSA also
opposes expanding the petition process to other stakeholders, noting
the ``wide disparity'' between the resources of wealthy service
providers and many PSAPs, most of which ``do not regularly retain
counsel and participate in Commission proceedings,'' and might ``lack
the resources to oppose'' the petitions. Another commenter, Consumer
Action for a Strong Economy (CASE), proposes a different mechanism,
suggesting that to encourage reporting by non-governmental entities,
the Commission could establish ``a new docket or a portal'' in which
non-governmental entities could provide evidence demonstrating that a
state or taxing jurisdiction is underfunding 911 services or ``has
failed to meet an acceptable purpose and function for the obligation or
expenditure of 911 fees or charges.'' The AAJ Authorities ask the
Commission to reject CASE's proposal, contending that creation of a new
docket or portal would create ``undue burdens'' for states and local
911 authorities, which would have to spend time and resources
responding to Commission inquiries. The AAJ Authorities also note that
Commission ``already has an information collection process to identify
fee diverters.''
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\22\ The Commission notes that the decision to apply Sec. 1.2
of the Commission's rules to the filing of these section 902
petitions is limited to the use of Sec. 1.2 as a procedural vehicle
for conducting an adjudication of these petitions. Accordingly, any
limitations of 47 CFR 1.2 and the Administrative Procedure Act at 5
U.S.C. 554(e) that might arise from the specification that the
Commission may issue a declaratory ruling to terminate a controversy
or remove uncertainty do not apply here. Rather, the standard for
accepting and granting these special petitions for determination is
dictated by the statutory requirements of section 902(c)(1)(C)--
specifically, that the Commission must grant such a petition if it
finds that the State has provided sufficient documentation to
demonstrate that the ``purpose or function'' (i) supports PSAP
functions or operations, or (ii) has a direct impact on the ability
of a PSAP to ``(I) receive or respond to 911 calls; or (II) dispatch
emergency responders.'' 47 U.S.C. 615a-1(f)(5)(B) (as amended); sec.
902(c)(1)(C).
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We find that, under the explicit language of section 902, only a
``State or taxing jurisdiction'' may file a petition for determination,
and that other stakeholders (e.g., communications providers) may not
file a petition for determination. In addition, we decline to create a
``new docket or portal'' for non-governmental authorities to report 911
fee diversion and underfunding issues. Non-governmental parties can
provide information to the Commission on a 911 fee concern at any time
and can comment on annual 911 fee reports and state responses to the
FCC data
[[Page 45903]]
collection. We find that these existing procedural options available to
non-governmental entities are sufficient and decline to add another
layer of procedures. For example, these other stakeholders may file a
petition for declaratory ruling under Sec. 1.2 of the Commission's
rules or a petition for rulemaking under Sec. 1.401 of the
Commission's rules. However, such petitions would not be subject to or
entitled to the specialized petition for determination process and
substantive standards that we establish here.
Bureau delegation and public comment. In general, the Public Safety
and Homeland Security Bureau (Bureau) has delegated authority under our
existing rules that is sufficient to act on petitions for determination
in the first instance. We also adopt our NPRM proposal that the Bureau
seek comment on petitions. Although the North Carolina 911 Board
expresses concern that the comment and reply process could lead to
administrative burdens for state and local government, other commenters
support the proposal. We conclude that seeking comment on petitions
will promote transparency and informed decision-making in furtherance
of Congress's goals.
Time Limits. We decline to place a time limit on Bureau action on
petitions for determination. We agree with commenters who advocate for
timely action on petitions, but also agree with CTIA that the process
needs ``to allow for public comment and sufficient deliberation of
whether expenditures are appropriately within the scope of the
Commission's rules.'' Although some commenters advocate mandatory
timelines, imposing a rigid time limit on an as yet unknown volume of
petition decisions, many of which will require careful consideration of
complex situations and questions, would not allow time for sufficient
deliberation or public input, would unduly burden limited Commission
staff resources, and would potentially lead to inconsistent results.
Review. Some commenters advocate that an appeal process should be
available, whether specifically in relation to the petition decision,
or as a more general matter for any finding of fee diversion. In terms
of appeals of the Bureau's petition decisions, we believe creating any
specialized appeal process is unnecessary, because petitioners may
submit petitions for reconsideration under Sec. 1.106 of the
Commission's rules or applications for Commission review of any Bureau-
level decision under Sec. 1.115 of the Commission's rules.
Blanket Waivers. We continue to believe that Congress intended the
petition process ``to serve as a safety valve allowing states to seek
further refinement of the definition of obligations and expenditures
that are considered 911 related.'' However, BRETSA argues that the
petition process should include provisions for ``blanket waivers'' or
special rules for certain common situations that affect a large number
of 911 authorities. We decline to establish such specialized
provisions. We find that our general guidelines on acceptable and
unacceptable 911 expenditures are sufficiently broad, and that these
overarching national guidelines, the illustrative lists of examples,
and the petition process complement each other, with the petition
process allowing localized refinements that accommodate varying
circumstances as well as a reasonable mechanism to evaluate future
perhaps as yet unforeseen, but legitimate, expenses. We also note that
nothing in the rules prevents multiple states or taxing authorities
from filing a joint petition to address a common issue.
Eligibility To Participate on Advisory Committees
Background. Pursuant to section 902(d)(4), any state or taxing
jurisdiction identified by the agency in the annual 911 fee report as
engaging in diversion of 911 fees or charges ``shall be ineligible to
participate or send a representative to serve on any committee, panel,
or council established under section 6205(a) of the Middle Class Tax
Relief and Job Creation Act of 2012 . . . or any advisory committee
established by the Commission.'' In the NPRM, we proposed to codify
this restriction in Sec. 9.26 as it applies to any advisory committee
established by the Commission.
Decision. We adopt the proposal from the NPRM with a minor
modification and provide additional guidance and clarification on
certain aspects of the rule.\23\ As proposed, we find that any state or
taxing jurisdiction identified by the agency as engaging in diversion
will be ineligible to participate on any advisory committee established
by the Commission. The first fee diversion report required to be
submitted one year after the enactment of section 902 will include a
list of states and taxing jurisdictions identified as practicing fee
diversion. The agency will begin identifying representatives of
diverting jurisdictions on its current advisory committees, if any,
following the issuance of that report, and evaluate how to remove such
representatives from current advisory committees. One commenter
supports the prohibition without caveats, and some commenters seek
clarification on or ask the Commission to revisit the scope of the
prohibition against serving on advisory committees when a state or
taxing jurisdiction has been designated a diverter.\24\
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\23\ We revise the language of the proposed rule to clarify the
reference to section 6(f)(2) of the Wireless Communications and
Public Safety Act of 1999, as amended (47 U.S.C. 615a-1(f)(2)).
\24\ NPSTC notes that section 902(d)(4) references the
ineligibility of diverting states or taxing jurisdictions to serve
on FirstNet committees, panels, or councils, and states that this
section encompasses the FirstNet Public Safety Advisory Committee
(PSAC). NPSTC Mar. 23, 2021 Comments at 7. NPSTC asserts that
``[t]he PSAC appears to be established by Congress in the
legislation, not by the Commission.'' Id. at 7. NPSTC argues that
``the Commission, in coordination with the FirstNet governmental
entity, should clarify any impact of this legislation to FirstNet
and related advisory committees, councils or panels,'' as ``an
individual on the PSAC that represents a public safety or
governmental association/organization should not be penalized for an
employer's 911 fee decisions over which he/she may have no
involvement.'' Id. at 7; see also IAFC Apr. 2, 2021 Reply at 5
(quoting NPSTC). We observe that at the May 5, 2021 FirstNet board
meeting, FirstNet updated the charter of the PSAC to prevent
representatives of fee diverting jurisdictions from participating on
the PSAC. See First Responder Network Authority, Board Resolution
109-Bylaws and Public Safety Advisory Committee Charter Revisions at
1-2 & Exh. B (May 5, 2021), https://firstnet.gov/sites/default/files/Resolution%20109%20-%20Bylaws%20and%20PSAC%20Charter%20Revisions%20May%202021.pdf.
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We clarify that only employees of a diverting jurisdiction (i.e.,
state or other taxing jurisdiction) who are acting as official
representatives of that jurisdiction will be ineligible to participate
on advisory committees established by the Commission. Further, we
clarify that this prohibition will not extend to representatives of
non-diverting localities that are located within diverting states. We
also clarify that an individual who is employed by a diverting
jurisdiction may still serve on a Commission advisory committee as a
representative of a public safety organization or other outside
association. Lastly, we clarify that an advisory committee
``established'' by the Commission includes any advisory committee
established under the Federal Advisory Committee Act and any other
panel that serves an advisory function to the Commission as reflected
on the Commission's website.\25\ In light
[[Page 45904]]
of these clarifications, we believe the prohibition appropriately
balances the interests of Congress in restricting representatives of
fee diverting jurisdictions from serving on advisory committees,
without limiting representatives of non-diverting jurisdictions from
providing their perspectives. Our clarification tracks NPSTC's view
that an individual ``may be employed by a locality or state, but serve
voluntarily in public safety associations/organizations for the benefit
of all public safety,'' and may wish to end diverting practices.
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\25\ A full list of the advisory committees established by the
Commission can be found at https://www.fcc.gov/about-fcc/advisory-committees-fcc. This prohibition would not extend to the Regional
Planning Committees (RPCs), which are administrative rather than
advisory in nature. See NPSTC Mar. 23, 2021 Comments at 6
(requesting clarification of whether RPCs would be considered
committees ``established'' by the Commission).
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Mission Critical Partners proposes that the restriction on diverter
participation on advisory committees be expanded to include
``congressional panel[s], the National 911 Program, or other public
safety-related committees, panels, or councils.'' Because this proposal
would exceed Congress's directive in section 902, we decline to adopt
it.
Reporting Requirement
Background. Section 902(c)(1)(C) provides that if a state or taxing
jurisdiction receives a grant under section 158 of the National
Telecommunications and Information Administration Organization Act (47
U.S.C. 942) after the date of enactment of section 902, ``such State or
taxing jurisdiction shall, as a condition of receiving such grant,
provide the information requested by the Commission to prepare [the
annual report to Congress on 911 fees].'' \26\ In the NPRM, we proposed
to codify this provision in Sec. 9.25 under new subpart I to require
grant recipients to provide such information to the Commission.
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\26\ 47 U.S.C. 615a-1(f)(4) (as amended); sec. 902(c)(1)(C).
NHTSA and NTIA will review the regulations for the 911 Grant Program
at 47 CFR part 400 in order to determine how best to implement the
new obligation under the law. The Commission will work with these
agencies to ensure a coordinated compliance regime.
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Decision. We adopt our proposal, which was unopposed in the comment
record, with clarifying modifications.\27\ Mission Critical Partners
notes that the collection of information regarding states' use of 911
funds ``provides comprehensive information for Congress to scrutinize
and understand the needs of states and local 911 authorities.'' APCO
notes that ``[u]sing the strike force and annual reports to better
understand the relationship between funding for 9-1-1 and emergency
response will produce helpful information for public safety agencies
and serve the Commission's and Congress's goal of discouraging fee
diversion.''
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\27\ We revise the language of the rule to clarify the reference
to section 6(f)(2) of the Wireless Communications and Public Safety
Act of 1999, as amended (47 U.S.C. 615a-1(f)(2)). We also clarify
that each state or taxing jurisdiction subject to this requirement
must file the information requested by the Commission and in the
form specified by the Public Safety and Homeland Security Bureau.
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Underfunding 911 Services and Improving the Annual 911 Fee Report
Background. In the Notice of Inquiry in this proceeding, we sought
comment on whether improvements to the agency's data collection and
reporting process could further discourage fee diversion. Section
902(d)(2) provides that, beginning with the first annual fee report
``that is required to be submitted after the date that is 1 year after
the date of the enactment of this Act,'' the Commission shall include
in each report ``all evidence that suggests the diversion by a State or
taxing jurisdiction of 9-1-1 fees or charges, including any information
regarding the impact of any underfunding of 9-1-1 services in the State
or taxing jurisdiction.'' Given that section 902 similarly requires us
to forward any evidence of fee diversion, ``including any information
regarding the impact of any underfunding of 9-1-1 services,'' to the
911 Strike Force, in the NPRM we sought comment on how we can best
emphasize this aspect in our information collection reports.
Decision. As a threshold matter, we direct the Bureau to update the
annual 911 fee report questionnaire to reflect the rules adopted in the
Report and Order. This should help address concerns raised by
commenters that our annual data collection be more effective in
identifying fee diversion.
Commenters generally support the Commission's approach of using the
911 Strike Force and annual reports to better understand
underfunding.\28\ APCO and several other commenters urge us to take a
``broad approach'' to analyzing the extent and impacts of 911
underfunding, whether or not it is caused by 911 fee diversion.
Commenters note that the presence or absence of fee diversion does not
reliably correlate to adequate funding for 911 and suggest that we take
additional steps to study the broader impacts of underfunding the 911
system. We direct the Bureau to modify the annual fee report
questionnaire to seek additional information on the underfunding of 911
systems, including both (1) information on the impact of fee diversion
on 911 underfunding, and (2) information on 911 underfunding in
general. We also refer this issue to the 911 Strike Force. The 911
Strike Force is charged with examining, among other things, ``the
impacts of diversion,'' and we expect that its report will address
underfunding as a potential impact of diversion.
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\28\ APCO Mar. 23, 2021 Comments at 2 (using the Strike Force
and annual reports will produce helpful information and serve the
goal of discouraging fee diversion ``while looking at the bigger
picture of the extent of underfunding regardless of the source'');
NC 911 Board Mar. 31, 2021 Reply at 3 (stating that the NC 911 Board
``supports the Commission's apparent intent to seek greater clarity
[on underfunding] through the Strike Force''); IAFC Apr. 2, 2021
Reply at 5-6 (quoting and supporting APCO's assertion that the
Commission should use the Strike Force and annual reports to produce
helpful information regarding underfunding). We note that the 911
Strike Force is due to submit its report to Congress by September of
this year, which will not be enough time for the agency to pass
along underfunding information collected through the fee report
process this year. The 911 Strike Force will examine, however, the
impact of fee diversion on underfunding, and the Commission will
submit to the 911 Strike Force the information that it currently
has, as mandated by statute. See 47 U.S.C. 615a-1 Statutory Notes
(as amended); sec. 902(d)(1)-(3).
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We decline two requests from the NC 911 Board to expand the
Commission's approach to analyzing underfunding, first that the
Commission address underfunding of 911 as a prerequisite to finding
that fee diversion has occurred, and second that the Commission provide
more detail regarding the intent, definition, and scope of
underfunding. Neither section 902 nor the NET 911 Act contains a
requirement that the Commission find underfunding prior to finding fee
diversion. Regarding the request that the Commission provide more
detail about the intent, definition, and scope of underfunding, we note
that section 902 did not specifically direct the Commission to define
underfunding at this time, but we refer the topic of defining
underfunding 911 to the 911 Strike Force to study.
III. Procedural Matters
Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980,
as amended (RFA), requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemakings, unless the
agency certifies that ``the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' Accordingly, we have prepared a Final Regulatory
Flexibility Analysis (FRFA) concerning the possible impact of the rule
changes contained in this Report and Order on small entities. The FRFA
is set forth in Appendix B of the Commission's Report and Order.
Paperwork Reduction Act of 1995 Analysis. The requirements in Sec.
9.25(b) constitute a modified information collection to OMB Control No.
3060-1122. The modified information collection will be submitted to the
Office of Management and Budget
[[Page 45905]]
(OMB) for review under section 3507(d) of the Paperwork Reduction Act
of 1995 (PRA). OMB, the general public, and other Federal agencies are
invited to comment on the new or modified information collection
requirements contained in this proceeding. In addition, we note that,
pursuant to the Small Business Paperwork Relief Act of 2002, we
previously sought, but did not receive, specific comment on how the
Commission might further reduce the information collection burden for
small business concerns with fewer than 25 employees. The Commission
does not believe that the new or modified information collection
requirements in Sec. 9.25(b) will be unduly burdensome on small
businesses. Applying these modified information collections will
implement section 902 and promote transparency in the collection and
expenditure of 911 fees. We describe impacts that might affect small
businesses, which includes most businesses with fewer than 25
employees, in the FRFA in Appendix B of the Commission's Report and
Order.
Congressional Review Act. The Commission has determined, and the
Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs, that this is a major rule
under the Congressional Review Act, 5 U.S.C. 804(2). The Commission
will send a copy of this Report and Order to Congress and the
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
Additional Information. For additional information on this
proceeding, contact Brenda Boykin, [email protected] or 202-418-
2062, Rachel Wehr, [email protected] or 202-418-1138, or Jill Coogan,
[email protected] or 202-418-1499, of the Public Safety and Homeland
Security Bureau, Policy and Licensing Division.
Final Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the NPRM adopted in February 2021. The Commission
sought written public comment on the proposals in the NPRM, including
comment on the IRFA. No comments were filed addressing the IRFA. This
present Final Regulatory Flexibility Analysis (FRFA) conforms to the
RFA.
A. Need for, and Objectives of, the Final Rules
The Report and Order adopts rules to implement section 902 of the
Consolidated Appropriations Act, 2021 that required the Commission to
take action to help address the diversion of 911 fees by states and
taxing jurisdictions for purposes unrelated to 911. The Commission
amends part 9 of its rules to establish a new subpart I to address the
use of 911 fees and fee diversion in accordance with the requirements
of section 902. More specifically, the rules the Commission adopts in
the new subpart I designate illustrative, non-exhaustive purposes and
functions for the obligation or expenditure of 911 fees or charges by
states and taxing jurisdiction authorized to impose such a fee or
charge that are acceptable for purposes of section 902 and the
Commission's rules; clarify what does and does not constitute 911 fee
diversion; establish a declaratory ruling process for providing further
guidance to states and taxing jurisdictions on fee diversion issues;
and codify the specific restrictions that section 902 imposes on states
and taxing jurisdictions that engage in diversion, such as the
exclusion from eligibility to participate on Commission advisory
committees.
The Commission adopts rules in the Report and Order that provide
guidance on the types of expenditures of 911 fees for public safety
radio systems and related infrastructure that can be considered
acceptable but leaves the precise dividing line between acceptable and
unacceptable radio expenditures open for further refinement, and refers
this issue to the 911 Strike Force for further consideration and
development of recommendations. The Report and Order also codifies the
provision of section 902 that allows states and taxing jurisdictions to
petition the FCC for a determination that an obligation or expenditure
of a 911 fee for a purpose or function other than those deemed
acceptable by the Commission should be treated as an acceptable
expenditure. Further, the Commission amends its rules to include a
voluntary safe harbor provision that provides if a state or taxing
jurisdiction collects fees or charges designated for ``public safety,''
``emergency services,'' or similar purposes and a portion of those fees
goes to the support or implementation of 911 services, the obligation
or expenditure of such fees or charges shall not constitute diversion
provided that the state or taxing jurisdiction meets certain criteria.
This safe harbor provision should incentivize states and taxing
jurisdictions to be transparent about multi-purpose fees, while
providing flexibility to states and taxing jurisdictions to have the
911 portion of such multi-purpose fees be deemed acceptable while not
having the non-911 portion be deemed diversion.
The safe harbor provision should also provide visibility into how
funds ostensibly collected for both 911 and other purposes are
apportioned, while including safeguards to ensure that such
apportionment is not subject to manipulation that would constitute fee
diversion. Inclusion of the safe harbor furthers Congress's
transparency goals and enhances our ability to determine whether 911
funds are being diverted. Without such visibility, multi-purpose fees
could increase the burden on limited Commission staff resources in
analyzing varied fee structures, and potentially render our rules and
annual 911 fee report ineffective. The changes to part 9 adopted in the
Report and Order are consistent with and advance Congress's stated
objectives in section 902 in a cost-effective manner that is not unduly
burdensome to providers of emergency telecommunications services or to
state or taxing jurisdictions. The rules closely track the statutory
language of section 902 addressing 911 fee diversion and seek to
promote transparency, accountability, and integrity in the collection
and expenditure of fees collected for 911 services, while providing
stakeholders reasonable guidance as part of implementing section 902.
B. Summary of Significant Issues Raised by Comments in Response to the
IRFA
There were no comments filed that specifically addressed the
proposed rules and policies presented in the IRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
Pursuant to the Small Business Jobs Act of 2010, which amended the
RFA, the Commission is required to respond to any comments filed by the
Chief Counsel for Advocacy of the Small Business Administration (SBA)
and to provide a detailed statement of any change made to the proposed
rules as a result of those comments.
The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. The RFA generally
[[Page 45906]]
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small-business concern'' under the
Small Business Act. A ``small-business concern'' is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA.
Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe here, at
the outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry-specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the Small Business
Administration's (SBA's) Office of Advocacy, in general a small
business is an independent business having fewer than 500 employees.
These types of small businesses represent 99.9% of all businesses in
the United States, which translates to 30.7 million businesses.
Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2018, there were
approximately 571,709 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate that there
were 90,075 local governmental jurisdictions consisting of general
purpose governments and special purpose governments in the United
States. Of this number there were 36,931 general purpose governments
(county, municipal and town or township) with populations of less than
50,000 and 12,040 special purpose governments--independent school
districts with enrollment populations of less than 50,000. Accordingly,
based on the 2017 U.S. Census of Governments data, we estimate that at
least 48,971 entities fall into the category of ``small governmental
jurisdictions.''
Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
appropriate size standard under SBA rules is that such a business is
small if it has 1,500 or fewer employees. For this industry, U.S.
Census Bureau data for 2012 show that there were 967 firms that
operated for the entire year. Of this total, 955 firms employed fewer
than 1,000 employees and 12 firms employed 1,000 employees or more.
Thus, under this category and the associated size standard, the
Commission estimates that the majority of Wireless Telecommunications
Carriers (except Satellite) are small entities.
Wired Telecommunications Carriers. The U.S. Census Bureau defines
this industry as ``establishments primarily engaged in operating and/or
providing access to transmission facilities and infrastructure that
they own and/or lease for the transmission of voice, data, text, sound,
and video using wired communications networks. Transmission facilities
may be based on a single technology or a combination of technologies.
Establishments in this industry use the wired telecommunications
network facilities that they operate to provide a variety of services,
such as wired telephony services, including voice over internet
protocol (VoIP) services, wired (cable) audio and video programming
distribution, and wired broadband internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry.'' The SBA has developed a small business size standard
for Wired Telecommunications Carriers, which consists of all such
companies having 1,500 or fewer employees. U.S. Census Bureau data for
2012 show that there were 3,117 firms that operated that year. Of this
total, 3,083 operated with fewer than 1,000 employees. Thus, under this
size standard, the majority of firms in this industry can be considered
small.
All Other Telecommunications. The ``All Other Telecommunications''
category is comprised of establishments primarily engaged in providing
specialized telecommunications services, such as satellite tracking,
communications telemetry, and radar station operation. This industry
also includes establishments primarily engaged in providing satellite
terminal stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.
Establishments providing internet services or VoIP services via client-
supplied telecommunications connections are also included in this
industry. The SBA has developed a small business size standard for
``All Other Telecommunications,'' which consists of all such firms with
annual receipts of $35 million or less. For this category, U.S. Census
Bureau data for 2012 show that there were 1,442 firms that operated for
the entire year. Of those firms, a total of 1,400 had annual receipts
less than $25 million, and 15 firms had annual receipts of $25 million
to $49,999,999. Thus, the Commission estimates that the majority of
``All Other Telecommunications'' firms potentially affected by our
action can be considered small.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
The rules adopted in the Report and Order to implement section 902
will impose new or additional reporting or recordkeeping and/or other
compliance obligations on small and other sized state and taxing
jurisdictions subject to compliance with the Commission's 911 fee
obligation or expenditure requirements. While some of the requirements
will only impact entities that choose to invoke the provisions, the
Commission is not in a position to determine whether small entities
will have to hire professionals to comply and cannot quantify the cost
of compliance for small entities. Below we discuss the reporting and
recordkeeping requirements implicated in the Report and Order.
New Sec. 9.25 requires that if a State or taxing jurisdiction
receives a grant under section 158 of the National Telecommunications
and Information Administration Organization Act (47 U.S.C. 942) after
December 27, 2020, such State or taxing jurisdiction shall provide the
information requested by the Commission to prepare the report required
under section 6(f)(2) of the Wireless Communications and Public Safety
Act of 1999, as amended (47 U.S.C. 615a-1(f)(2)). Each state or taxing
[[Page 45907]]
jurisdiction subject to paragraph (a) of this section must file the
information requested by the Commission and in the form specified by
the Public Safety and Homeland Security Bureau (Bureau).
The Report and Order directs the Bureau to update the Commission's
911 fee report questionnaire to facilitate the provision of information
regarding states' use of 911 funds in order for the Commission to
prepare an annual report to Congress on 911 fees. The Report and Order
also directs the Bureau to modify the annual fee report questionnaire
to obtain additional information on the underfunding of 911 systems,
including both (1) information on the impact of fee diversion on 911
underfunding, and (2) information on 911 underfunding in general.
Pursuant to the voluntary Petition for Determination process
adopted in the Report and Order to resolve questions of what are and
are not acceptable 911 expenditures, a petitioning state or taxing
jurisdiction is required to provide information show that a proposed
expenditure: (1) Supports PSAP functions or operations, or (2) has a
direct impact on the ability of a PSAP to receive or respond to 911
calls or to dispatch emergency responders. If the Commission finds that
a state or taxing jurisdiction has provided sufficient documentation to
make this demonstration, the statute provides that it shall grant the
petition. The information and documentation that a state or taxing
jurisdiction is required to provide the Commission to make the
requisite showing will impact the reporting and recordkeeping
requirements for small entities and others subject to the requirements.
Similarly, pursuant to the voluntary safe harbor provisions adopted
in the Report and Order, small and other sized state or taxing
jurisdictions that utilize the safe harbor provision to have the non-
911 portion of a multi-purpose fee or charge not constitute diversion,
must: (1) Specify the amount or percentage of such fees or charges that
is dedicated to 911 services; (2) show that the 911 portion of such
fees or charges are segregated and not commingled with any other funds;
and (3) obligate or expend the 911 portion of such fees or charges for
acceptable purposes and functions as defined in Sec. 9.23 under new
subpart I.
F. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
The RFA requires an agency to describe any significant specifically
small business alternatives that it has considered in reaching its
proposed approach, which may include the following four alternatives
(among others): (1) The establishment of differing compliance or
reporting requirements or timetables that take into account the
resources available to small entities; (2) the clarification,
consolidation, or simplification of compliance or reporting
requirements under the rule for such small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for such small entities.
In the Report and Order the approach we take to implement the
provisions of section 902 that require Commission action to help
address diversion of 911 fees for other purposes by state and taxing
jurisdictions, adopts changes to part 9 of the Commission's rules
seeking to achieve the stated objectives of Congress's mandates in a
cost-effective manner that is not unduly burdensome to providers of
emergency telecommunication services or to states and taxing
jurisdictions. Using this approach, we have taken the steps discussed
below to minimize any significant economic impact or burden for small
entities.
To promote consistency for small entities and others who will be
subject to both section 902 and our rules, the rules adopted in the
Report and Order and codified in part 9 of the Commission's rules,
closely tracks the statutory language from section 902. Specifically,
the definitions in section 902 for certain terms relating to 911 fees
and fee diversion in part 9 of our rules were adopted and codified as
proposed in the NPRM. For a few terms, limited modifications were made
to the definition, i.e., the definitions for the terms ``911 fee or
charge'' and ``Diversion'' include modifications to promote regulatory
parity and avoid gaps that could inadvertently interfere with the rapid
deployment of effective 911 services. We believe that having
consistency between section 902 and our rules will avoid additional
compliance costs for small entities.
Similarly, to fulfill the Commission's obligations associated with
issuing rules designating acceptable purposes and functions, we use
language from section 902, codifying the statutory standard for which
the obligation or expenditure of 911 fees or charges by any state or
taxing jurisdiction is considered acceptable. We considered but
rejected arguments to defer to states and local authorities in
determining what constitutes fee diversion. A policy of deferring to
states or localities on what constitutes fee diversion would negate one
of the principal aspects of section 902, which is that it revises the
language in 47 U.S.C. 615a-1 to make clear that fee diversion is not
whatever state or local law says it is. Section 902 charges the
Commission with responsibility for determining appropriate purposes and
functions for expenditure of 911 funds and we agree that our rules
should be reasonably broad given the evolving and diverse 911
ecosystem. The rules adopted in the Report and Order establish broad
categories of acceptable purposes and functions for 911 fees and
provide examples within each category to guide states and localities.
Therefore, we have provided State and local jurisdictions sufficient
discretion to make reasonable, good faith determinations whether
specific expenditures of 911 fees are acceptable under our rules.
In the final rules we specify examples of both acceptable and
unacceptable purposes and functions for the obligation or expenditure
of 911 fees or charges. For example, we revised Sec. 9.23(b)(1) from
the NPRM proposal to include examples to make clear that replacement of
911 systems is an acceptable expenditure and that 911 includes pre-
arrival instructions and ENS and also added a reference to
cybersecurity. Identifying and including specific examples in the
Commission's rules should enable small entities to avoid unacceptable
expenditures in violation of our rules, which could impact eligibility
for Federal grants and participation in Federal advisory committees.
Finally, we adopt two processes in the Report and Order that could
minimize the economic impact for small entities, (1) the safe harbor
for multi-purpose fees or charges and (2) the petition for
determination. As discussed in the prior section, the safe harbor
provision gives flexibility to states and taxing jurisdictions to
implement multi-purpose fees or charges and to have the 911 portion of
such multi-purpose fees be deemed acceptable and the non-911 portion
not deemed 911 fee diversion provided certain conditions are met. Also
discussed in the prior section, the Commission adopted a petition for
determination process to resolve questions of what are and are not
acceptable 911 expenditures, allowing states and other taxing
jurisdictions to request a determination on whether a proposed
expenditure would constitute fee diversion. Using these processes
small, and other sized state and taxing jurisdictions can avoid
violating section 902 and the Commission's rules for 911 fee diversion
and any ensuing economic and other consequences.
[[Page 45908]]
G. Report to Congress
26. The Commission will send a copy of the Report and Order,
including this FRFA, in a report to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Report and Order, including this FRFA, to the Chief Counsel for
Advocacy of the SBA. A copy of the Report and Order and FRFA (or
summaries thereof) will also be published in the Federal Register.
IV. Ordering Clauses
Accordingly, it is ordered, pursuant to Sections 1, 4(i), 4(j),
4(o), 201(b), 251(e), 301, 303(b), and 303(r) of the Communications Act
of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 154(o), 201(b),
251(e), 301, 303(b), and 303(r), the Don't Break Up the T-Band Act of
2020, Section 902 of Title IX, Division FF of the Consolidated
Appropriations Act, 2021, Public Law 116-260, Section 101 of the New
and Emerging Technologies 911 Improvement Act of 2008, Public Law 110-
283, 47 U.S.C. 615a-1, and the Wireless Communications and Public
Safety Act of 1999, Public Law 106-81, 47 U.S.C. 615 note, 615, 615a,
and 615b, that this Report and Order is hereby adopted.
It is further ordered that the amendments of part 9 of the
Commission's rules, as set forth in Appendix A of the Commission's
Report and Order, are adopted, effective sixty (60) days after
publication in the Federal Register. Compliance will not be required
for paragraph (b) in Sec. 9.25 until after approval by the Office of
Management and Budget. The Commission delegates authority to the Public
Safety and Homeland Security Bureau to publish a document in the
Federal Register announcing that compliance date and revising paragraph
(c) in Sec. 9.25.
It is further ordered that the Office of the Managing Director,
Performance Evaluation and Records Management, shall send a copy of
this Report and Order in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act, 5 U.S.C. 801(a)(1)(A).
It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 9
Communications common carriers, Communications equipment, Radio,
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 9 as follows:
PART 9--911 Requirements
0
1. The authority citation for part 9 is revised to read as follows:
Authority: 47 U.S.C. 151-154, 152(a), 155(c), 157, 160, 201,
202, 208, 210, 214, 218, 219, 222, 225, 251(e), 255, 301, 302, 303,
307, 308, 309, 310, 316, 319, 332, 403, 405, 605, 610, 615, 615
note, 615a, 615b, 615c, 615a-1, 616, 620, 621, 623, 623 note, 721,
and 1471, and Section 902 of Title IX, Division FF, Pub. L. 116-260,
134 Stat. 1182, unless otherwise noted.
0
2. Add subpart I, consisting of Sec. Sec. 9.21 through 9.26, to read
as follows:
Subpart I--911 Fees
Sec.
9.21 Applicability.
9.22 Definitions.
9.23 Designation of acceptable obligations or expenditures for
purposes of the Consolidated Appropriations Act, 2021, Division FF,
Title IX, section 902(c)(1)(C).
9.24 Petition regarding additional purposes and functions.
9.25 Participation in annual fee report data collection.
9.26 Advisory committee participation.
Sec. 9.21 Applicability.
The rules in this subpart apply to States or taxing jurisdictions
that collect 911 fees or charges (as defined in this subpart) from
commercial mobile services, IP-enabled voice services, and other
emergency communications services.
Sec. 9.22 Definitions.
For purposes of this subpart, the terms in this section have the
following meanings set forth in this section. Furthermore, where the
Commission uses the term ``acceptable'' in this subpart, it is for
purposes of the Consolidated Appropriations Act, 2021, Public Law 116-
260, Division FF, Title IX, section 902(c)(1)(C).
911 fee or charge. A fee or charge applicable to commercial mobile
services, IP-enabled voice services, or other emergency communications
services specifically designated by a State or taxing jurisdiction for
the support or implementation of 911 services. A 911 fee or charge
shall also include a fee or charge designated for the support of public
safety, emergency services, or similar purposes if the purposes or
allowable uses of such fee or charge include the support or
implementation of 911 services.
Diversion. The obligation or expenditure of a 911 fee or charge for
a purpose or function other than the purposes and functions designated
by the Commission as acceptable pursuant to Sec. 9.23. Diversion also
includes distribution of 911 fees to a political subdivision that
obligates or expends such fees for a purpose or function other than
those designated as acceptable by the Commission pursuant to Sec.
9.23.
Other emergency communications services. The provision of emergency
information to a public safety answering point via wire or radio
communications, and may include 911 and E911 service.
State. Any of the several States, the District of Columbia, or any
territory or possession of the United States.
State or taxing jurisdiction. A State, political subdivision
thereof, Indian Tribe, or village or regional corporation serving a
region established pursuant to the Alaska Native Claims Settlement Act
(43 U.S.C. 1601 et seq.).
Sec. 9.23 Designation of acceptable obligations or expenditures for
purposes of the Consolidated Appropriations Act, 2021, Division FF,
Title IX, section 902(c)(1)(C).
(a) Acceptable purposes and functions for the obligation or
expenditure of 911 fees or charges for purposes of section 902 are
limited to:
(1) Support and implementation of 911 services provided by or in
the State or taxing jurisdiction imposing the fee or charge; and
(2) Operational expenses of public safety answering points within
such State or taxing jurisdiction.
(b) Examples of acceptable purposes and functions include, but are
not limited to, the following, provided that the State or taxing
jurisdiction can adequately document that it has obligated or spent the
fees or charges in question for these purposes and functions:
(1) PSAP operating costs, including lease, purchase, maintenance,
replacement, and upgrade of customer premises equipment (CPE) (hardware
and software), computer aided dispatch (CAD) equipment (hardware and
software), and the PSAP building/facility and including NG911,
cybersecurity, pre-arrival instructions, and emergency notification
systems (ENS). PSAP operating costs include technological innovation
that supports 911;
[[Page 45909]]
(2) PSAP personnel costs, including telecommunicators' salaries and
training;
(3) PSAP administration, including costs for administration of 911
services and travel expenses associated with the provision of 911
services;
(4) Integrating public safety/first responder dispatch and 911
systems, including lease, purchase, maintenance, and upgrade of CAD
hardware and software to support integrated 911 and public safety
dispatch operations; and
(5) Providing for the interoperability of 911 systems with one
another and with public safety/first responder radio systems.
(c) Examples of purposes and functions that are not acceptable for
the obligation or expenditure of 911 fees or charges for purposes of
section 902 include, but are not limited to, the following:
(1) Transfer of 911 fees into a State or other jurisdiction's
general fund or other fund for non-911 purposes;
(2) Equipment or infrastructure for constructing or expanding non-
public safety communications networks (e.g., commercial cellular
networks); and
(3) Equipment or infrastructure for law enforcement, firefighters,
and other public safety/first responder entities that does not directly
support providing 911 services.
(d) If a State or taxing jurisdiction collects fees or charges
designated for ``public safety,'' ``emergency services,'' or similar
purposes that include the support or implementation of 911 services,
the obligation or expenditure of such fees or charges shall not
constitute diversion provided that the State or taxing jurisdiction:
(1) Specifies the amount or percentage of such fees or charges that
is dedicated to 911 services;
(2) Ensures that the 911 portion of such fees or charges is
segregated and not commingled with any other funds; and
(3) Obligates or expends the 911 portion of such fees or charges
for acceptable purposes and functions as defined under this section.
Sec. 9.24 Petition regarding additional purposes and functions.
(a) A State or taxing jurisdiction may petition the Commission for
a determination that an obligation or expenditure of 911 fees or
charges for a purpose or function other than the purposes or functions
designated as acceptable in Sec. 9.23 should be treated as an
acceptable purpose or function. Such a petition must meet the
requirements applicable to a petition for declaratory ruling under
Sec. 1.2 of this chapter.
(b) The Commission shall grant the petition if the State or taxing
jurisdiction provides sufficient documentation to demonstrate that the
purpose or function:
(1) Supports public safety answering point functions or operations;
or
(2) Has a direct impact on the ability of a public safety answering
point to:
(i) Receive or respond to 911 calls; or
(ii) Dispatch emergency responders.
Sec. 9.25 Participation in annual fee report data collection.
(a) If a State or taxing jurisdiction receives a grant under
section 158 of the National Telecommunications and Information
Administration Organization Act (47 U.S.C. 942) after December 27,
2020, such State or taxing jurisdiction shall provide the information
requested by the Commission to prepare the report required under
section 6(f)(2) of the Wireless Communications and Public Safety Act of
1999, as amended (47 U.S.C. 615a-1(f)(2)).
(b) Each State or taxing jurisdiction subject to paragraph (a) of
this section must file the information requested by the Commission and
in the form specified by the Public Safety and Homeland Security
Bureau.
(c) Paragraph (b) of this section contains information collection
and recordkeeping requirements. Compliance will not be required until
after approval by the Office of Management and Budget. The Commission
will publish a document in the Federal Register announcing that
compliance date and revising this paragraph (c) accordingly.
Sec. 9.26 Advisory committee participation.
Notwithstanding any other provision of law, any State or taxing
jurisdiction identified by the Commission in the report required under
section 6(f)(2) of the Wireless Communications and Public Safety Act of
1999, as amended (47 U.S.C. 615a-1(f)(2)), as engaging in diversion of
911 fees or charges shall be ineligible to participate or send a
representative to serve on any advisory committee established by the
Commission.
[FR Doc. 2021-16068 Filed 8-16-21; 8:45 am]
BILLING CODE 6712-01-P
