911 Fee Diversion; New and Emerging Technologies 911 Improvement Act of 2008, 12399-12409 [2021-04250]
Download as PDF
<![CDATA[
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
[FR Doc. 2021–03410 Filed 3–2–21; 8:45 am]
BILLING CODE 6712–01–C
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 9
[PS Docket Nos. 20–291 and 09–14; FCC
21–25; FRS 17515]
911 Fee Diversion; New and Emerging
Technologies 911 Improvement Act of
2008
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the Federal
Communications Commission (the FCC
or Commission) proposes rules to
implement the Don’t Break Up the TBand 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. The intended
effect of this notice of proposed
rulemaking (NPRM) is to propose rules
that implement Section 902 and help to
identify those uses of 911 fees by states
and other jurisdictions that support the
provision of 911 services.
DATES: Comments are due on or before
March 23, 2021, and reply comments
are due on or before April 2, 2021.
ADDRESSES: You may submit comments,
identified by PS Docket Nos. 20–291
and 09–14, by any of the following
methods:
• Federal Communications
Commission’s website: https://
www.fcc.gov/ecfs/. Follow the
instructions for submitting comments.
• Mail: Parties who choose to file by
paper must file an original and one copy
of each filing. If more than one docket
or rulemaking number appears in the
caption of this proceeding, filers must
submit two additional copies for each
additional docket or rulemaking
number. Filings can be sent by
commercial overnight courier, or by
first-class or overnight U.S. Postal
Service mail. All filings must be
addressed to the Commission’s
Secretary, Office of the Secretary,
Federal Communications Commission.
Commercial overnight mail (other than
U.S. Postal Service Express Mail and
Priority Mail) must be sent to 9050
jbell on DSKJLSW7X2PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
Junction Drive, Annapolis Junction, MD
20701. U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 45 L Street NE,
Washington, DC 20554.
• Effective March 19, 2020, and until
further notice, the Commission no
longer accepts any hand or messenger
delivered filings. This is a temporary
measure taken to help protect the health
and safety of individuals, and to
mitigate the transmission of COVID–19.
See FCC Announces Closure of FCC
Headquarters Open Window and
Change in Hand-Delivery Policy, Public
Notice, DA 20–304 (March 19, 2020),
https://www.fcc.gov/document/fcccloses-headquarters-open-window-andchanges-hand-delivery-policy.
People with Disabilities: To request
materials in accessible formats for
people with disabilities (Braille, large
print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the Consumer & Governmental Affairs
Bureau at 202–418–0530 (voice) or 202–
418–0432 (TTY).
FOR FURTHER INFORMATION CONTACT:
Brenda Boykin, Attorney Advisor,
Policy and Licensing Division, Public
Safety and Homeland Security Bureau,
(202) 418–2062, Brenda.Boykin@fcc.gov,
or John A. Evanoff, Deputy Division
Chief, Policy and Licensing Division,
Public Safety and Homeland Security
Bureau, (202) 418–0848, John.Evanoff@
fcc.gov.
This is a
summary of the Commission’s notice of
proposed rulemaking (NPRM), FCC 21–
25, in PS Docket Nos. 20–291 and 09–
14, adopted and released on February
17, 2021. The full text of this document
is available at https://www.fcc.gov/
edocs/searchresults?t=quick&fccdaNo=21-25.
SUPPLEMENTARY INFORMATION:
Initial Paperwork Reduction Act of
1995 Analysis
This notice of proposed rulemaking
may contain new or modified
information collection(s) subject to the
Paperwork Reduction Act of 1995
(PRA). If the Commission adopts any
new or modified information collection
requirements, they will be submitted to
the Office of Management and Budget
(OMB) for review under section 3507(d)
of the PRA. OMB, the general public,
and other Federal agencies will be
invited to comment on the new or
modified information collection
requirements contained in this
proceeding. In addition, pursuant to the
Small Business Paperwork Relief Act of
2002, we seek specific comment on how
we might further reduce the information
PO 00000
Frm 00107
Fmt 4702
Sfmt 4702
12399
collection burden for small business
concerns with fewer than 25 employees.
Pursuant to §§ 1.415 and 1.419 of the
Commission’s rules, 47 CFR 1.415,
1.419, interested parties may file
comments and reply comments on or
before the dates indicated in the DATES
section above. Comments may be filed
using the Commission’s Electronic
Comment Filing System (ECFS). See
Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121
(1998), https://transition.fcc.gov/
Bureaus/OGC/Orders/1998/
fcc98056.pdf.
The Commission will treat this
proceeding as a ‘‘permit-but-disclose’’
proceeding in accordance with the
Commission’s ex parte rules. Persons
making ex parte presentations must file
a copy of any written presentation or a
memorandum summarizing any oral
presentation within 2 business days
after the presentation (unless a different
deadline applicable to the Sunshine
period applies). Persons making oral ex
parte presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda, or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with rule
§ 1.1206(b). In proceedings governed by
rule § 1.49(f) or for which the
Commission has made available a
method of electronic filing, written ex
parte presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Participants
in this proceeding should familiarize
themselves with the Commission’s ex
parte rules.
E:\FR\FM\03MRP1.SGM
03MRP1
12400
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
Synopsis
Background
jbell on DSKJLSW7X2PROD with PROPOSALS
Congress has had a longstanding
concern about the practice by some
states and local jurisdictions of
diverting 911 fees for non-911 purposes.
In the ENHANCE 911 Act of 2004,
Congress required states and local
jurisdictions receiving Federal 911
grants to certify that they were not
diverting 911 funds.1 In the New and
Emerging Technologies 911
Improvement Act of 2008 (NET 911
Act), Congress enacted additional
measures to limit 911 fee diversion,
codified in 47 U.S.C. 615a–1 (section
615a–1).2 Specifically, section 615a–
1(f)(1) provided that nothing in the 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 IPenabled 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.’’ 3
The NET 911 Act also required the
Commission to begin reporting annually
on the status in each state of the
collection and distribution of fees 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
1 Ensuring Needed Help Arrives Near Callers
Employing 911 Act of 2004, Public Law 108–494,
118 Stat. 3986 (ENHANCE 911 Act) (relevant grant
provisions codified at 47 U.S.C. 942). Congress
provided another round of 911 grant funding, with
similar non-diversion requirements, in the NG911
Act. Middle Class Tax Relief and Job Creation Act
of 2012, Public Law 112–96, 126 Stat. 237, Title VI,
Subtitle E, Next Generation 9–1–1 Advancement
Act of 2012 (NG911 Act) (relevant grant provisions
codified at 47 U.S.C. 942).
2 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.
3 47 U.S.C. 615a–1(f)(1) (prior version). Under the
NET 911 Act, the Commission’s annual 911 fee
report covers states, as well as U.S. territories and
the District of Columbia. See 47 U.S.C. 615a–1(f)(2)
(directing the Commission to report on the status
‘‘in each State’’ of the collection and distribution of
911 fees and charges); id. at 615b(2) (definition of
‘‘State’’).
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
specified.’’ 4 Pursuant to this provision,
the Commission has reported annually
to Congress on 911 fee diversion every
year since 2009.5 All 12 of the annual
reports issued to date have identified
some states that have diverted 911 fees
to other uses.
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
fees.6 Noting that publicly identifying
diverting states in the Commission’s
annual reports has helped discourage
the practice but has not eliminated fee
diversion, the Commission sought
comment on whether it could take other
steps to discourage fee diversion, such
as conditioning state and local
eligibility for FCC licenses, programs, or
other benefits on the absence of fee
diversion.7 The Commission received
eight comments and seven reply
comments in response to the Notice of
Inquiry.8
Section 902
On December 27, 2020, the President
signed the Don’t Break Up the T-Band
Act of 2020 as part of the Consolidated
Appropriations Act, 2021.9 Section 902
of the new legislation requires the
Commission to take action to help
address the diversion of 911 fees by
states and other jurisdictions for
purposes unrelated to 911. Specifically,
Section 902(c)(1)(C) adds a new
paragraph (3)(A) to section 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.10 The newly added section 615a–
1(f)(3)(B) states that these purposes and
functions shall be limited to ‘‘the
4 47
U.S.C. 615a–1(f)(2) (prior version).
annual reports can be viewed at https://
www.fcc.gov/general/911-fee-reports.
6 911 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) (Fee
Diversion NOI).
7 Fee Diversion NOI, 35 FCC Rcd at 11011, 11016,
paras. 5, 16.
8 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.
9 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).
10 47 U.S.C. 615a–1(f)(3)(A) (as amended); sec.
902(c)(1)(C).
5 These
PO 00000
Frm 00108
Fmt 4702
Sfmt 4702
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.11 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.’’ 12
Section 902 also amends section
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 provides
that nothing in the Act, the
Communications Act of 1934 (47 U.S.C.
151 et seq.), the New and Emerging
Technologies 911 Improvement Act of
2008, or any Commission regulation or
order shall prevent the imposition and
collection of a fee or charge applicable
to commercial mobile services or IPenabled voice services specifically
designated by a State, political
subdivision thereof, Indian tribe, or
village or regional corporation serving a
region established pursuant to the
Alaska Native Claims Settlement Act, as
amended (85 Stat. 688) for the support
or implementation of 911 or enhanced
911 services, provided that the fee or
charge is obligated or expended only in
support of 911 and enhanced 911
services, or enhancements of such
services, ‘‘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.’’ 13
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 having such an acceptable
purpose or function even if it is for a
purpose or function that has not been
designated as such in the Commission’s
11 47 U.S.C. 615a–1(f)(3)(B) (as amended); sec.
902(c)(1)(C).
12 47 U.S.C. 615a–1(f)(3)(B) (as amended); sec.
902(c)(1)(C).
13 47 U.S.C. 615a–1(f)(1) (as amended) (emphasis
added); sec. 902(c)(1)(A).
E:\FR\FM\03MRP1.SGM
03MRP1
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
rules.14 Specifically, newly added
section 615a–1(f)(5) provides that a state
or taxing jurisdiction may submit to the
Commission a petition 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.’’
8. Section 902(d) requires the
Commission to create an ‘‘interagency
strike force’’ to study ‘‘how the Federal
Government can most expeditiously end
diversion’’ by states and taxing
jurisdictions and to report to Congress
on its findings within 270 days of the
statute’s enactment.15 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 strike
force, ‘‘including any information
regarding the impact of any
underfunding of 9–1–1 services in the
State or taxing jurisdiction.’’ 16 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.’’ 17 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
14 47 U.S.C. 615a–1(f)(5) (as amended); sec.
902(c)(1)(C).
15 Sec. 902(d)(3).
16 Sec. 902(d)(1).
17 Sec. 902(d)(2). Based on the December 27, 2020
enactment date of Section 902, this requirement
will apply beginning with the next annual fee
report, due to Congress by December 31, 2021.
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
the Commission to prepare the [annual
report to Congress on 911 fees].’’ 18
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.
Section 902 does not impose any
requirement on 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.’’ 19
In this notice of proposed rulemaking,
we propose measures to implement
Section 902. We seek comment on these
measures, which are designed to
identify those uses of 911 fees by states
and other jurisdictions that support the
provision of 911 services.
Definitions and Applicability
As a preliminary matter, we note that
Section 902 defines certain terms
relating to 911 fees and fee diversion. To
promote consistency, we propose to
codify these definitions in our rules
with certain modifications, as described
below. We seek comment on these
proposed definitions.
911 fee or charge. 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.’’ 20
We propose to codify this definition in
our rules. However, we note that the
statutory definition in Section 902 does
18 47 U.S.C. 615a–1(f)(4) (as amended); sec.
902(c)(1)(C).
19 47 U.S.C. 615a–1(f)(1) (as amended); sec.
902(c)(1)(A).
20 47 U.S.C. 615a–1(f)(3)(D)(i) (as amended); sec.
902(c)(1)(C), (f)(1).
PO 00000
Frm 00109
Fmt 4702
Sfmt 4702
12401
not address services that may be subject
to 911 fees other than Commercial
Mobile Radio Services (CMRS) and IPenabled voice services. 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 Commission’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.21
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 propose to define ‘‘911 fee
or charge’’ in our 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.’’ 22 The
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 commercial
mobile services and IP-enabled voice
services.
21 For example, the Commission has extended 911
obligations to providers of text messaging services.
See Facilitating the Deployment of Text-to-911 and
Other Next Generation 911 Applications;
Framework for Next Generation 911 Deployment,
PS Docket Nos. 10–255 and 11–153, Report and
Order, 78 FR 32169 (May 29, 2013), 28 FCC Rcd
7556 (2013) (requiring covered text providers to
provide consumers attempting to send a text to 911
with an automatic bounce-back message when the
service is unavailable); Facilitating the Deployment
of Text-to-911 and Other Next Generation 911
Applications; Framework for Next Generation 911
Deployment, PS Docket Nos. 11–153 and 10–255,
Second Report and Order and Third Further Notice
of Proposed Rulemaking, 79 FR 55367 (Sept. 16,
2014) and 79 FR 55413 (Sept. 16, 2014), 29 FCC Rcd
9846 (2014) (requiring covered text providers to
implement text-to-911 service no later than June 30,
2015 or six months from the date of a public safety
answering point’s (PSAP’s) request, whichever is
later). Further, in RAY BAUM’S Act, which
directed the Commission to consider adopting rules
to ensure that dispatchable location is conveyed
with 911 calls, Congress specifically defined the
term ‘‘9–1–1 call’’ to include a voice call ‘‘or a
message that is sent by other means of
communication.’’ 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) sec. 506(c)(1) (codified at 47 U.S.C.
615 Notes).
22 NET 911 Act sec. 201(b), codified at 47 U.S.C.
615b(8).
E:\FR\FM\03MRP1.SGM
03MRP1
12402
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
We tentatively conclude that adoption
of this proposed expanded 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 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.23 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.’’ 24 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.’’ 25
Based on the foregoing, we tentatively
conclude that including ‘‘other
emergency communications services’’
within the scope of the definition of 911
fees we propose is also reasonably
ancillary to the Commission’s effective
performance of its statutorily mandated
responsibilities for ensuring that the 911
system, including 911, E911, and NG911
calls and texts from any type of service,
23 47 U.S.C. 251(e)(3). Section 251(e)(3) was
added as part of the Wireless Communications and
Public Safety Act of 1999, Public Law 106–81, 113
Stat. 1286 (1999) (911 Act), which established 911
as the national emergency number and required the
Commission to provide for appropriate transition
periods for areas in which 911 was not in use.
Congress broadly stated the purpose of the 911 Act
as ‘‘to encourage and facilitate the prompt
deployment throughout the United States of a
seamless, ubiquitous, and reliable end-to-end
infrastructure for communications, including
wireless communications, to meet the Nation’s
public safety and other communications needs.’’
911 Act sec. 2(b), codified at 47 U.S.C. 615 Notes.
24 RAY BAUM’S Act sec. 506(a).
25 47 U.S.C. 615a–1(e)(2).
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
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.
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.26 We seek
comment on this tentative conclusion
and on the extent to which our
proposed rules would strengthen the
effectiveness of a nationwide 911
service.
In addition, we seek comment on
extending 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.27 This would be
consistent with the approach taken in
the agency’s annual fee reports, which
found that the mere labelling of a fee is
not dispositive and that one must
examine the underlying purpose of the
26 The 2016 report of the Task Force on Optimal
PSAP Architecture (TFOPA) recounted how fee
diversion practices have ‘‘delayed plans in several
states to meet the deployment schedule for the
transition to an NG9–1–1 system.’’ See FCC, Task
Force on Optimal PSAP Architecture, Adopted
Final Report at 154 (2016) (TFOPA Report), https://
transition.fcc.gov/pshs/911/TFOPA/TFOPA_
FINALReport_012916.pdf; see generally FCC, Legal
and Regulatory Framework for Next Generation 911
Services, Report and Recommendations, at Sec.
4.1.4 (2013), https://www.911.gov/pdf/FCC_Report_
Legal_Regulatory_Framework_NG911_Services_
2013.pdf. Other commenters have noted instances
of fee diversion resulting in the delay of 911
improvements. See New Jersey Wireless
Association Reply Comments to Tenth Report, PS
Docket No. 09–14, at 2 (rec. Feb. 12, 2019) (noting
that instead of upgrading to NG911 technology,
New Jersey is maintaining a 911 selective router
system that is ‘‘past its useful life and is now
costing more to maintain from previous years, due
to its obsolescence’’); Letter from Matthew Grogan,
1st Vice President, Nevada APCO at 1 (Feb. 15,
2019) (noting that Nevada 911 funds have been
used to purchase police body cameras at a time
when ‘‘several counties and jurisdictions . . . are
still not equipped with enhanced 9–1–1 services’’),
https://www.leg.state.nv.us/App/NELIS/REL/
80th2019/ExhibitDocument/
OpenExhibitDocument?exhibitId=36516&
fileDownloadName=SB%2025_Testimony%20in
%20Opposition_Matthew%20Grogan
%20Nevada%20Fee%20Diversion.pdf.
27 We also propose a safe harbor in the rules
providing that the obligation or expenditure of such
fees or charges will not constitute diversion so long
as 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.
PO 00000
Frm 00110
Fmt 4702
Sfmt 4702
fee to determine whether it is (or
includes) a 911 fee within the meaning
of the NET 911 Act.28 We seek comment
on these conclusions.
We propose that for purposes of
implementing Section 902, our
definition of ‘‘911 fee or charge’’ should
similarly extend to fees or charges that
are expressly identified by the state or
taxing jurisdiction as supporting 911,
even if the fee is not labelled as a 911
fee. We tentatively conclude that this is
consistent with the purpose of Section
902 with respect to diversion of 911 fees
and charges. We seek comment on this
proposal. Does the proposed definition
of 911 fees or charges capture the
universe of 911 fees or charges that can
be diverted? Is the definition
overinclusive or underinclusive? Are
there other modifications to the
definition that would help to prevent
911 fee diversion?
Diversion. Section 902(f)(4) defines
‘‘diversion’’ as, with respect to a 911 fee
or charge, 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 this Act, as purposes and functions
for which the obligation or expenditure
of such a fee or charge is acceptable.
We propose to codify this definition,
with minor changes to streamline it.
Specifically, we propose 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 propose to clarify
that 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 by the Commission. We
believe this provision will clarify that
states and taxing jurisdictions are also
responsible for diversion of 911 fees by
political subdivisions, such as counties,
that may receive 911 fees. We seek
comment on these proposals.
28 E.g., FCC, Twelfth Annual Report to Congress
on State Collection and Distribution of 911 and
Enhanced 911 Fees and Charges at 51–52, para. 31
(2020) (Twelfth Report), https://www.fcc.gov/files/
12thannual911feereport2020pdf (‘‘We do not agree
that a fee or charge must be exclusively designated
for 911 or E911 purposes in order to constitute a
fee or charge ‘for the support or implementation of
9–1–1 or enhanced 9–1–1 services’ under section
6(f)(1) of the NET 911 Act.’’); see also FCC, Eleventh
Annual Report to Congress on State Collection and
Distribution of 911 and Enhanced 911 Fees and
Charges at 43, para. 34 (2019) (Eleventh Report),
https://www.fcc.gov/files/11thannual911
feereport2019pdf.
E:\FR\FM\03MRP1.SGM
03MRP1
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
State or taxing jurisdiction. 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.).’’ 29 We propose to codify this
definition in our rules. We note that the
existing language in section 615a–1
directs the Commission to submit an
annual report to Congress on the use of
911 fees by ‘‘each State or political
subdivision thereof,’’ and Section 902
does not revise this language. We also
note that Section 902 does not alter the
definition of ‘‘State’’ in the existing
legislation. 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.’’ 30 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. To
clarify this and to assist users of the
regulations, we propose to add the
definition of ‘‘State’’ to subpart I.
Regarding the scope of proposed
subpart I, we propose that the rules
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. And as the
proposed definitions make clear, such
fees or charges would 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. We seek comment on
these proposals.
A. 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
29 47 U.S.C. 615a–1(f)(3)(D)(iii) (as amended); sec.
902(c)(1)(C), (f)(5).
30 47 U.S.C. 615b(2).
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
public safety answering points within
such State or taxing jurisdiction.’’ 31
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.’’ 32 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.33
We propose 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.
This proposed language tracks the
language in Section 902. In addition, we
propose to specify in the rules that
examples of such 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, 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
31 47 U.S.C. 615a–1(f)(3)(B) (as amended); sec.
902(c)(1)(C).
32 47 U.S.C. 615a–1(f)(3)(B) (as amended); sec.
902(c)(1)(C).
33 47 U.S.C. 615a–1(f)(5)(A) (as amended); Section
902(c)(1)(C). Such a petition must be granted if the
Commission finds that the State or taxing
jurisdiction has provided sufficient documentation
to demonstrate that the purpose or function in
question supports PSAP functions or operations, or
that the purpose or function has a direct impact on
the ability of a PSAP to receive or respond to 911
calls or to dispatch emergency responders. Id.
PO 00000
Frm 00111
Fmt 4702
Sfmt 4702
12403
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 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. They also are consistent
with the Commission’s past analysis of
911 fee diversion in its annual fee
reports, and, as required under Section
902, they reflect the Commission’s
consideration of the purposes and
functions that states have specified for
their 911 fees and charges. In particular,
the Commission has stated in its annual
fee reports that the requisite nexus to
911 includes expenditures that (1)
support PSAP functions or operations,
(2) have a reasonable nexus to PSAPs’
ability to receive 911 calls and/or
dispatch emergency responders, or (3)
relate to communications infrastructure
that connects PSAPs (or otherwise
ensures the reliable reception and
processing of emergency calls and their
dispatch to first responders).34 In
addition, the Commission has stated
that expenses associated with
integrating public safety dispatch and
911 systems (e.g., purchase of CAD
hardware and software to support
integrated 911 and dispatch operations)
may be 911 related, provided the state
or other jurisdiction can document a
connection to 911.35 We seek comment
on our proposed inclusion of these
examples of acceptable purposes and
functions and any additional examples
that should be specified in the rules.
We also seek comment on specifying
certain examples of purposes and
34 See FCC, Tenth Annual Report to Congress on
State Collection and Distribution of 911 and
Enhanced 911 Fees and Charges at 49, para. 40
(2018) (Tenth Report), https://www.fcc.gov/files/
10thannual911feereporttocongresspdf. Under this
analysis, funding for 911 dispatcher salaries and
training would have a sufficient nexus to 911, but
equipment and infrastructure for law enforcement,
firefighters, and other first responders generally
would not. See also Eleventh Report at 74, para. 59
(‘‘CTIA supports the Commission in requiring
documentation sufficient to demonstrate that the
expenditures (1) support PSAP functions or
operations, (2) have a reasonable nexus to PSAPs’
ability to receive 9–1–1 calls and/or dispatch
emergency responders, or (3) relate to
communications infrastructure that connects
PSAPs.’’).
35 See Twelfth Report at 48–49, para. 26; Eleventh
Report at 39, para. 26; Tenth Report at 42, para. 26.
E:\FR\FM\03MRP1.SGM
03MRP1
12404
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
functions that are not acceptable for the
obligation or expenditure of 911 fees or
charges for purposes of the statute.
These would include, but are not
limited to:
(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,
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.
Identifying these examples as
unacceptable expenditures for purposes
of the statute is consistent with the
manner in which such expenditures
were analyzed in our annual 911 fee
reports. For example, the 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.36 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.37 The Eleventh
Report explained that the purchase or
upgrade of public safety radio
equipment was not considered to be 911
related because ‘‘radio networks used by
first responders are technically and
operationally distinct from the 911 callhandling system.’’ 38 We seek comment
on whether we should reexamine any of
these prior findings in light of the
impact of the coronavirus pandemic on
public safety and emergency
communications services, if any.
Our proposed designation of
acceptable purposes and functions for
purposes of the statute is also consistent
with the legislative history of the NET
911 Act. 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 that several states
were known to be using 911 fees for
‘‘purposes other than 911 or emergency
36 E.g., Twelfth Report at 52–54, paras. 32, 35, 37;
Eleventh Report at 40, 42–43, paras. 28, 32, 35;
Tenth Report at 43–44, 46–47, paras. 30, 32, 35, 37.
37 See Twelfth Report at 48–49, para. 26; Eleventh
Report at 39, para. 26; Tenth Report at 42, para. 26.
38 See Eleventh Report at 42, para. 32; see also
Eleventh Report at 44, para. 37 (finding that there
was no 911 fee diversion where Virginia allocated
a portion of its wireless E911 funding to the
Virginia State Police for costs incurred for
answering wireless 911 telephone calls and to
support sheriff’s 911 dispatchers).
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
communications services.’’ 39 The
Report also noted that under subsection
6(f) of the proposed legislation, ‘‘[s]tates
and their political subdivisions should
use 911 or E–911 fees only for direct
improvements to the 911 system. Such
improvements could include improving
the technical and operational aspects of
PSAPs; establishing connections
between PSAPs and other public safety
operations, such as a poison control
center; or implementing the migration of
PSAPs to an IP-enabled emergency
network.’’ Further, ‘‘[t]his provision 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 the PSAPs.’’ 40
We seek comment on our proposed
designation of acceptable purposes and
functions under the statute. Are the
proposed purposes and functions that
would be deemed acceptable
overinclusive or underinclusive? If the
proposed purposes are overinclusive,
commenters should explain how and
why. What purposes and functions have
states and taxing jurisdictions specified
as the intended functions for 911 fees
and charges, and how should we take
these specifications into account as we
designate acceptable purposes and
functions under Section 902? CTIA
contends that allowable 911
expenditures should include the
nonrecurring costs of establishing a 911
system, the costs of emergency
telephone and dispatch equipment, and
costs for training for maintenance and
operation of the 911 system but should
exclude costs for leasing real estate,
cosmetic remodeling of facilities,
salaries or benefits, or emergency
vehicles.41 The Commission has found
in its 911 fee reports, however, that
some PSAP overhead costs, such as 911
telecommunicator salaries, are 911
related.42 To the extent that the
proposed purposes and functions are
underinclusive, commenters should
identify what additional purposes and
functions should be deemed acceptable,
and why.
39 House of Representatives Committee on Energy
and Commerce, Report on 911 Modernization and
Public Safety Act of 2007, H. Rept. 110–442 at 11
(2007) (H. Rept. 110–442), https://
www.congress.gov/110/crpt/hrpt442/CRPT110hrpt442.pdf (‘‘The most recent data available
indicate that four states use 911 fees, including
wireless and wireline fees, for purposes other than
911 or emergency communications services.’’).
40 H. Rept. 110–442 at 15.
41 CTIA Comments on Fee Diversion NOI at 5–6
(rec. Nov. 2, 2020).
42 See, e.g., Eleventh Report at 21, para. 18; Tenth
Report at 44–45, para. 33.
PO 00000
Frm 00112
Fmt 4702
Sfmt 4702
We also propose to define acceptable
purposes and functions under Section
902 for states and taxing jurisdictions
that impose multi-purpose fees or
charges intended to support 911
services as well as other public safety
purposes. In such instances, we believe
states and taxing jurisdictions should
have the flexibility to apportion the
collected funds between 911 related and
non-911 related programs, but that
safeguards are needed to ensure that
such apportionment is not subject to
manipulation that would constitute fee
diversion. We therefore propose to
adopt a safe harbor in our rules
providing that the obligation or
expenditure of such fees or charges will
not constitute diversion so long as 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. This provision
would provide transparency in the use
of 911 fees when a state or taxing
jurisdiction collects a fee for both 911
and non-911 purposes. It would also
enable the Commission to verify
through the annual fee report data
collection that the 911 portion of such
fees or charges is not being diverted.
We seek comment on our proposal for
determining whether there is diversion
of a fee or charge collected for both 911
and non-911 purposes. Are the
measures we propose sufficient to
provide transparency with respect to
diversion in the use of such fees? Are
there other measures that would help
ensure that 911 fees or charges are fully
traceable in states or taxing jurisdictions
with such funding mechanisms? In
addition, some state laws and
regulations provide that any excess 911
funds left over after all 911 expenditures
have been covered can be used for non911 related purposes.43 Similarly, some
state laws and regulations provide that
if the 911 service is discontinued, the
remaining 911 funds can be disbursed to
non-911 uses, such as a general fund.
Does the existence or implementation of
43 The TFOPA Report noted, ‘‘The legislative
practice of sweeping uncommitted balances of 9–1–
1-related accounts, especially those intended to
fund NG9–1–1 system infrastructure generally
occurs quietly without much public scrutiny.’’
TFOPA Report at 153–54. The TFOPA Report
proposed measures to deter such sweeps and
advised that ‘‘there should ultimately be
consequences for repeated diversions.’’ Id. at 162.
E:\FR\FM\03MRP1.SGM
03MRP1
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
such provisions for non-911 related
disbursements constitute diversion?
B. Petition for Determination
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 9–1–
1 fee or charge . . . by such State or
taxing jurisdiction for a purpose or
function other than a purpose or
function designated under paragraph
(3)(A) [support for 911 services/PSAP
expenditures] should be treated as such
a purpose or function.’’ 44 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.’’ 45 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.46
We propose to codify these provisions
in new subpart I of the rules. We believe
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. At the same time, the proposed
rule would set clear standards for what
states must demonstrate to support a
favorable ruling, including the
requirement to provide sufficient
documentation. To promote efficiency
in reviewing such petitions, we also
propose that states or taxing
jurisdictions seeking such a
determination must do so by filing a
petition for declaratory ruling under
§ 1.2 of the Commission’s rules.47 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. Consistent with
the declaratory ruling process outlined
in § 1.2(b), we anticipate docketing the
petition within an existing or new
proceeding. In addition, we anticipate
the Public Safety and Homeland
Security Bureau will seek comment on
petitions via public notice and with a
comment and reply comment cycle. We
propose to delegate authority to the
Bureau to rule on these petitions. We
seek comment on these proposals and
on any possible alternative processes for
entertaining such petitions.
C. Other Section 902 Provisions
Pursuant to Section 902(d)(4), any
state or taxing jurisdiction identified by
the Commission 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.’’ 48 We propose to codify
this restriction as it applies to any
advisory committee established by the
Commission in subpart I and seek
comment on this proposal. We also seek
comment on the extent to which state
and local governments currently
diverting 911 fees (based on the
Commission’s most recent report) now
participate in such Commission
advisory committees and the impact on
them from being prohibited from doing
so. Would it be helpful to provide a
mechanism for states and taxing
jurisdictions to raise questions regarding
their eligibility to serve on an advisory
committee?
Section 902(c)(1)(C) also 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].’’ 49 We
propose to codify this provision in
subpart I and seek comment on this
proposal. What effect does this statutory
provision and its proposed codification
in the Commission’s rules have on states
or taxing jurisdictions that receive such
grants? Does this provision, combined
with other statutory anti-diversion
restrictions that already apply to 911
grant recipients, increase the likelihood
that diverting states and taxing
jurisdictions will change their diversion
48 Sec.
902(d)(4) (internal citations omitted).
U.S.C. 615a–1(f)(4) (as amended); Section
902(c)(1)(C). The National Highway Traffic Safety
Administration and National Telecommunications
and Information Administration 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.
49 47
44 47 U.S.C. 615a–1(f)(5)(A) (as amended); sec.
902(c)(1)(C).
45 47 U.S.C. 615a–1(f)(5)(B) (as amended); sec.
902(c)(1)(C).
46 47 U.S.C. 615a–1(f)(5)(A) (as amended); sec.
902(c)(1)(C).
47 See 47 CFR 1.2.
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
PO 00000
Frm 00113
Fmt 4702
Sfmt 4702
12405
practices? Are there any aspects of our
proposed implementation of Section
902 that might create obstacles to state
fiscal needs?
Finally, 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
the Commission is similarly required to
provide the interagency strike force with
any information regarding underfunding
of 911 services,50 in addition to the
proposals discussed above, we seek
comment on how the Commission can
emphasize this aspect of its information
collection reports.
Procedural Matters
Initial Regulatory Flexibility Analysis
As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), the Commission has prepared
this Initial Regulatory Flexibility
Analysis (IRFA) of the possible
significant economic impact on a
substantial number of small entities by
the policies and rules proposed in the
notice of proposed rulemaking (NPRM).
Written public comments are requested
on this IRFA. Comments must be
identified as responses to the IRFA and
must be filed by the deadlines for
comments provided on the first page of
the NPRM. The Commission will send
a copy of the NPRM, including this
IRFA, to the Chief Counsel for Advocacy
of the Small Business Administration
(SBA). In addition, the NPRM and IRFA
(or summaries thereof) will be
published in the Federal Register.
A. Need for, and Objectives of, the
Proposed Rules
The NPRM proposes and seeks
comment on ways to implement Section
902 of the Consolidated Appropriations
Act of 2021. On December 27, 2020, the
President signed the Don’t Break Up the
T-Band Act of 2020, which is Division
FF, Title IX, Section 902 of the
Consolidated Appropriations Act, 2021
(Pub. L. 116–260). Section 902 directs
the Commission to issue final rules 180
days after enactment on December 27,
2020 designating acceptable purposes
and functions for the obligation or
expenditure of 911 fees by states and
taxing jurisdictions. Section 902 also
provides that the use of 911 fees for any
50 Sec.
E:\FR\FM\03MRP1.SGM
902(d)(1).
03MRP1
jbell on DSKJLSW7X2PROD with PROPOSALS
12406
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
purpose or function other than those
designated by the Commission
constitutes 911 fee diversion.
To implement Section 902 of the Act,
the NPRM seeks comment on the
Commission’s proposals to amend part
9 of the rules to establish a new subpart
I regarding ‘‘911 Fees.’’ Section 902
defines several terms, and the NPRM
proposes to codify these definitions in
the new subpart I of the rules. In
addition, Section 902 directs the
Commission to issue final rules
designating purposes and functions for
which the obligation or expenditure of
911 fees is acceptable. It also provides
that the purposes and functions
identified by the Commission as
acceptable ‘‘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
NPRM seeks comments on proposals to
develop an illustrative, non-exhaustive
list of permissible and non-permissible
uses for purposes of Section 902.
Section 902 provides that a state or
taxing jurisdiction may 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.
Per Section 902, the petition must
demonstrate that the expenditure: (1)
Supports public safety answering point
(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. In addition,
the Commission seeks comment on
amending the rules to require 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 annual
report to Congress required by the NET
911 Act. The NPRM seeks comment on
proposals to codify these provisions in
subpart I of part 9 of the rules.
B. Legal Basis
This action was taken 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),
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
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.
C. Description and Estimate of the
Number of Small Entities to Which the
Proposed 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 proposed
rules, if adopted. The RFA generally
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
PO 00000
Frm 00114
Fmt 4702
Sfmt 4702
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 1000 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
E:\FR\FM\03MRP1.SGM
03MRP1
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
jbell on DSKJLSW7X2PROD with PROPOSALS
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.
D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
As indicated in Section A above, the
NPRM seeks comment on proposed
rules to implement Section 902. The
NPRM generally does not propose
specific reporting or recordkeeping
requirements. The NPRM does,
however, propose and seek comment on
codifying the requirement that states or
taxing jurisdictions seeking a
Commission determination on 911 fee
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
diversion satisfy certain criteria
established in Section 902. In such
cases, a state or taxing jurisdiction
would have to 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 will have 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. The
Commission proposes to apply the
existing declaratory ruling procedures
and obligations under § 1.2 of the
Commission’s rules, which small
entities may already be familiar with, to
petitions for determination.
In addition, the NPRM seeks comment
on amending the rules to require 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 (47 U.S.C. 615a–
1(f)(2)). This proposed requirement is
consistent with the requirements of
Section 902. Under OMB Control No.
3060–1122, the Office of Management
and Budget previously approved and
renewed the information collection
requirements associated with filing
annual 911 fee reports as mandated by
the NET 911 Act.
E. 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 small entities; (3) the
use of performance, rather than design,
PO 00000
Frm 00115
Fmt 4702
Sfmt 4702
12407
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.
In the NPRM, the Commission seeks
to implement the provisions of Section
902 that require Commission action by
proposing changes to part 9 of our rules
that would achieve the stated objectives
of Congress’s mandated rules in a costeffective manner that is not unduly
burdensome to providers of emergency
telecommunication services or to states
and taxing jurisdictions. Using this
approach, we inherently take steps to
minimize any significant economic
impact or burden for small entities.
Specifically, we propose to adopt and
codify the definitions in Section 902 for
certain terms relating to 911 fees and fee
diversion in part 9 of our rules. For a
few terms, we make limited
modifications to the definition to avoid
gaps and promote the apparent intent of
the new statute. In addition to
promoting consistency, we believe our
proposals will help small entities and
others who will be subject to Section
902 and our rules avoid additional
expenses for compliance which may
have resulted if the Commission in the
alternative proposed and adopted
different definitions for certain terms in
Section 902 relating to 911 fees and fee
diversion.
Similarly, to fulfill the Commission
obligations associated with issuing rules
designating acceptable purposes and
functions, for consistency we propose to
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 also propose to specify in the rules
examples of both acceptable and
unacceptable purposes and functions for
the obligation or expenditure of 911 fees
or charges. If adopted, identifying and
including these 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, the Commission expects to
more fully consider the economic
impact on small entities, as identified in
comments filed in response to the
NPRM and this IRFA, in reaching its
final conclusions and taking action in
this proceeding.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
None.
E:\FR\FM\03MRP1.SGM
03MRP1
12408
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
Ordering Clauses
Subpart I—911 Fees
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 notice of proposed rulemaking
is hereby adopted.
It is further ordered that, pursuant to
applicable procedures set forth in
§§ 1.415 and 1.419 of the Commission’s
Rules, 47 CFR 1.415, 1.419, interested
parties may file comments on the notice
of proposed rulemaking on or before 20
days after publication in the Federal
Register, and reply comments on or
before 30 days after publication in the
Federal Register.
It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this notice of proposed rulemaking,
including the Initial Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
Sec.
9.21
9.22
9.23
List of Subjects in 47 CFR Part 9
Communications common carriers,
Communications equipment, Radio,
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
Proposed Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
part 9 as follows:
PART 9—911 REQUIREMENTS
1. The authority citation for part 9 is
revised to read as follows:
jbell on DSKJLSW7X2PROD with PROPOSALS
■
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.
2. Add subpart I, consisting of §§ 9.21
through 9.26, to read as follows:
■
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
Applicability.
Definitions.
Designation of acceptable obligations
or expenditures.
9.24 Petition regarding additional purposes
and functions.
9.25 Participation in annual fee report data
collection.
9.26 Advisory committee participation.
§ 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.
§ 9.22
Definitions.
For purposes of this subpart, the
terms in this section have the following
meaning:
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 § 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 § 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.)
§ 9.23 Designation of acceptable
obligations or expenditures.
(a) Acceptable purposes and functions
for the obligation or expenditure of 911
fees or charges are limited to:
PO 00000
Frm 00116
Fmt 4702
Sfmt 4702
(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, 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.
(c) Examples of purposes and
functions that are not acceptable for the
obligation or expenditure of 911 fees or
charges 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,
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.
(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:
E:\FR\FM\03MRP1.SGM
03MRP1
Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Proposed Rules
(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.
§ 9.24 Petition regarding additional
purposes and functions.
jbell on DSKJLSW7X2PROD with PROPOSALS
(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 § 9.23 should be treated as
an acceptable purpose or function. Such
VerDate Sep<11>2014
16:34 Mar 02, 2021
Jkt 253001
a petition must meet the requirements
applicable to a petition for declaratory
ruling under § 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.
§ 9.25 Participation in annual fee report
data collection.
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
PO 00000
Frm 00117
Fmt 4702
Sfmt 9990
12409
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 (47 U.S.C. 615a–
1(f)(2)).
§ 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 (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. 2021–04250 Filed 3–1–21; 4:15 pm]
BILLING CODE 6712–01–P
E:\FR\FM\03MRP1.SGM
03MRP1
]]>Agencies
[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Proposed Rules]
[Pages 12399-12409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04250]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 9
[PS Docket Nos. 20-291 and 09-14; FCC 21-25; FRS 17515]
911 Fee Diversion; New and Emerging Technologies 911 Improvement
Act of 2008
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission (the
FCC or Commission) proposes 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. The intended effect of this notice of
proposed rulemaking (NPRM) is to propose rules that implement Section
902 and help to identify those uses of 911 fees by states and other
jurisdictions that support the provision of 911 services.
DATES: Comments are due on or before March 23, 2021, and reply comments
are due on or before April 2, 2021.
ADDRESSES: You may submit comments, identified by PS Docket Nos. 20-291
and 09-14, by any of the following methods:
Federal Communications Commission's website: https://www.fcc.gov/ecfs/. Follow the instructions for submitting comments.
Mail: Parties who choose to file by paper must file an
original and one copy of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by commercial overnight courier,
or by first-class or overnight U.S. Postal Service mail. All filings
must be addressed to the Commission's Secretary, Office of the
Secretary, Federal Communications Commission. Commercial overnight mail
(other than U.S. Postal Service Express Mail and Priority Mail) must be
sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal
Service first-class, Express, and Priority mail must be addressed to 45
L Street NE, Washington, DC 20554.
Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
People with Disabilities: To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an email to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice) or 202-
418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: Brenda Boykin, Attorney Advisor,
Policy and Licensing Division, Public Safety and Homeland Security
Bureau, (202) 418-2062, [email protected], or John A. Evanoff,
Deputy Division Chief, Policy and Licensing Division, Public Safety and
Homeland Security Bureau, (202) 418-0848, [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's notice
of proposed rulemaking (NPRM), FCC 21-25, in PS Docket Nos. 20-291 and
09-14, adopted and released on February 17, 2021. The full text of this
document is available at https://www.fcc.gov/edocs/search-results?t=quick&fccdaNo=21-25.
Initial Paperwork Reduction Act of 1995 Analysis
This notice of proposed rulemaking may contain new or modified
information collection(s) subject to the Paperwork Reduction Act of
1995 (PRA). If the Commission adopts any new or modified information
collection requirements, they will be submitted to the Office of
Management and Budget (OMB) for review under section 3507(d) of the
PRA. OMB, the general public, and other Federal agencies will be
invited to comment on the new or modified information collection
requirements contained in this proceeding. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, we seek specific comment
on how we might further reduce the information collection burden for
small business concerns with fewer than 25 employees.
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated in the DATES section above.
Comments may be filed using the Commission's Electronic Comment Filing
System (ECFS). See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998), https://transition.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.
The Commission will treat this proceeding as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within 2 business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda, or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule Sec. 1.1206(b). In proceedings governed
by rule Sec. 1.49(f) or for which the Commission has made available a
method of electronic filing, written ex parte presentations and
memoranda summarizing oral ex parte presentations, and all attachments
thereto, must be filed through the electronic comment filing system
available for that proceeding, and must be filed in their native format
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this
proceeding should familiarize themselves with the Commission's ex parte
rules.
[[Page 12400]]
Synopsis
Background
Congress has had a longstanding concern about the practice by some
states and local jurisdictions of diverting 911 fees for non-911
purposes. In the ENHANCE 911 Act of 2004, Congress required states and
local jurisdictions receiving Federal 911 grants to certify that they
were not diverting 911 funds.\1\ In the New and Emerging Technologies
911 Improvement Act of 2008 (NET 911 Act), Congress enacted additional
measures to limit 911 fee diversion, codified in 47 U.S.C. 615a-1
(section 615a-1).\2\ Specifically, section 615a-1(f)(1) provided that
nothing in the 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.'' \3\
---------------------------------------------------------------------------
\1\ Ensuring Needed Help Arrives Near Callers Employing 911 Act
of 2004, Public Law 108-494, 118 Stat. 3986 (ENHANCE 911 Act)
(relevant grant provisions codified at 47 U.S.C. 942). Congress
provided another round of 911 grant funding, with similar non-
diversion requirements, in the NG911 Act. Middle Class Tax Relief
and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 237,
Title VI, Subtitle E, Next Generation 9-1-1 Advancement Act of 2012
(NG911 Act) (relevant grant provisions codified at 47 U.S.C. 942).
\2\ 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.
\3\ 47 U.S.C. 615a-1(f)(1) (prior version). Under the NET 911
Act, the Commission's annual 911 fee report covers states, as well
as U.S. territories and the District of Columbia. See 47 U.S.C.
615a-1(f)(2) (directing the Commission to report on the status ``in
each State'' of the collection and distribution of 911 fees and
charges); id. at 615b(2) (definition of ``State'').
---------------------------------------------------------------------------
The NET 911 Act also required the Commission to begin reporting
annually on the status in each state of the collection and distribution
of fees 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.'' \4\ Pursuant to this provision, the
Commission has reported annually to Congress on 911 fee diversion every
year since 2009.\5\ All 12 of the annual reports issued to date have
identified some states that have diverted 911 fees to other uses.
---------------------------------------------------------------------------
\4\ 47 U.S.C. 615a-1(f)(2) (prior version).
\5\ These annual reports can be viewed at https://www.fcc.gov/general/911-fee-reports.
---------------------------------------------------------------------------
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 fees.\6\ Noting that publicly
identifying diverting states in the Commission's annual reports has
helped discourage the practice but has not eliminated fee diversion,
the Commission sought comment on whether it could take other steps to
discourage fee diversion, such as conditioning state and local
eligibility for FCC licenses, programs, or other benefits on the
absence of fee diversion.\7\ The Commission received eight comments and
seven reply comments in response to the Notice of Inquiry.\8\
---------------------------------------------------------------------------
\6\ 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) (Fee Diversion
NOI).
\7\ Fee Diversion NOI, 35 FCC Rcd at 11011, 11016, paras. 5, 16.
\8\ 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.
---------------------------------------------------------------------------
Section 902
On December 27, 2020, the President signed the Don't Break Up the
T-Band Act of 2020 as part of the Consolidated Appropriations Act,
2021.\9\ Section 902 of the new legislation requires the Commission to
take action to help address the diversion of 911 fees by states and
other jurisdictions for purposes unrelated to 911. Specifically,
Section 902(c)(1)(C) adds a new paragraph (3)(A) to section 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.\10\ The newly added section 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.\11\ 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.'' \12\
---------------------------------------------------------------------------
\9\ 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).
\10\ 47 U.S.C. 615a-1(f)(3)(A) (as amended); sec. 902(c)(1)(C).
\11\ 47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).
\12\ 47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).
---------------------------------------------------------------------------
Section 902 also amends section 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 provides that nothing in the Act, the Communications
Act of 1934 (47 U.S.C. 151 et seq.), the New and Emerging Technologies
911 Improvement Act of 2008, 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 serving a region
established pursuant to the Alaska Native Claims Settlement Act, as
amended (85 Stat. 688) for the support or implementation of 911 or
enhanced 911 services, provided that the fee or charge is obligated or
expended only in support of 911 and enhanced 911 services, or
enhancements of such services, ``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.'' \13\
---------------------------------------------------------------------------
\13\ 47 U.S.C. 615a-1(f)(1) (as amended) (emphasis added); sec.
902(c)(1)(A).
---------------------------------------------------------------------------
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 having such an acceptable purpose or function
even if it is for a purpose or function that has not been designated as
such in the Commission's
[[Page 12401]]
rules.\14\ Specifically, newly added section 615a-1(f)(5) provides that
a state or taxing jurisdiction may submit to the Commission a petition
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.''
---------------------------------------------------------------------------
\14\ 47 U.S.C. 615a-1(f)(5) (as amended); sec. 902(c)(1)(C).
---------------------------------------------------------------------------
8. Section 902(d) requires the Commission to create an
``interagency strike force'' to study ``how the Federal Government can
most expeditiously end diversion'' by states and taxing jurisdictions
and to report to Congress on its findings within 270 days of the
statute's enactment.\15\ 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 strike force, ``including any
information regarding the impact of any underfunding of 9-1-1 services
in the State or taxing jurisdiction.'' \16\ 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.'' \17\ 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].'' \18\
---------------------------------------------------------------------------
\15\ Sec. 902(d)(3).
\16\ Sec. 902(d)(1).
\17\ Sec. 902(d)(2). Based on the December 27, 2020 enactment
date of Section 902, this requirement will apply beginning with the
next annual fee report, due to Congress by December 31, 2021.
\18\ 47 U.S.C. 615a-1(f)(4) (as amended); sec. 902(c)(1)(C).
---------------------------------------------------------------------------
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.
Section 902 does not impose any requirement on 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.'' \19\
---------------------------------------------------------------------------
\19\ 47 U.S.C. 615a-1(f)(1) (as amended); sec. 902(c)(1)(A).
---------------------------------------------------------------------------
In this notice of proposed rulemaking, we propose measures to
implement Section 902. We seek comment on these measures, which are
designed to identify those uses of 911 fees by states and other
jurisdictions that support the provision of 911 services.
Definitions and Applicability
As a preliminary matter, we note that Section 902 defines certain
terms relating to 911 fees and fee diversion. To promote consistency,
we propose to codify these definitions in our rules with certain
modifications, as described below. We seek comment on these proposed
definitions.
911 fee or charge. 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.''
\20\ We propose to codify this definition in our rules. However, we
note 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. 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 Commission'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.\21\
---------------------------------------------------------------------------
\20\ 47 U.S.C. 615a-1(f)(3)(D)(i) (as amended); sec.
902(c)(1)(C), (f)(1).
\21\ For example, the Commission has extended 911 obligations to
providers of text messaging services. See Facilitating the
Deployment of Text-to-911 and Other Next Generation 911
Applications; Framework for Next Generation 911 Deployment, PS
Docket Nos. 10-255 and 11-153, Report and Order, 78 FR 32169 (May
29, 2013), 28 FCC Rcd 7556 (2013) (requiring covered text providers
to provide consumers attempting to send a text to 911 with an
automatic bounce-back message when the service is unavailable);
Facilitating the Deployment of Text-to-911 and Other Next Generation
911 Applications; Framework for Next Generation 911 Deployment, PS
Docket Nos. 11-153 and 10-255, Second Report and Order and Third
Further Notice of Proposed Rulemaking, 79 FR 55367 (Sept. 16, 2014)
and 79 FR 55413 (Sept. 16, 2014), 29 FCC Rcd 9846 (2014) (requiring
covered text providers to implement text-to-911 service no later
than June 30, 2015 or six months from the date of a public safety
answering point's (PSAP's) request, whichever is later). Further, in
RAY BAUM'S Act, which directed the Commission to consider adopting
rules to ensure that dispatchable location is conveyed with 911
calls, Congress specifically defined the term ``9-1-1 call'' to
include a voice call ``or a message that is sent by other means of
communication.'' 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) sec. 506(c)(1) (codified at 47 U.S.C. 615 Notes).
---------------------------------------------------------------------------
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 propose to
define ``911 fee or charge'' in our 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.'' \22\ The 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 commercial mobile services and IP-
enabled voice services.
---------------------------------------------------------------------------
\22\ NET 911 Act sec. 201(b), codified at 47 U.S.C. 615b(8).
---------------------------------------------------------------------------
[[Page 12402]]
We tentatively conclude that adoption of this proposed expanded
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 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.\23\ 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.'' \24\ 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.'' \25\
---------------------------------------------------------------------------
\23\ 47 U.S.C. 251(e)(3). Section 251(e)(3) was added as part of
the Wireless Communications and Public Safety Act of 1999, Public
Law 106-81, 113 Stat. 1286 (1999) (911 Act), which established 911
as the national emergency number and required the Commission to
provide for appropriate transition periods for areas in which 911
was not in use. Congress broadly stated the purpose of the 911 Act
as ``to encourage and facilitate the prompt deployment throughout
the United States of a seamless, ubiquitous, and reliable end-to-end
infrastructure for communications, including wireless
communications, to meet the Nation's public safety and other
communications needs.'' 911 Act sec. 2(b), codified at 47 U.S.C. 615
Notes.
\24\ RAY BAUM'S Act sec. 506(a).
\25\ 47 U.S.C. 615a-1(e)(2).
---------------------------------------------------------------------------
Based on the foregoing, we tentatively conclude that including
``other emergency communications services'' within the scope of the
definition of 911 fees we propose is also reasonably ancillary to the
Commission's effective performance of 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. 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.\26\ We seek comment on this tentative
conclusion and on the extent to which our proposed rules would
strengthen the effectiveness of a nationwide 911 service.
---------------------------------------------------------------------------
\26\ The 2016 report of the Task Force on Optimal PSAP
Architecture (TFOPA) recounted how fee diversion practices have
``delayed plans in several states to meet the deployment schedule
for the transition to an NG9-1-1 system.'' See FCC, Task Force on
Optimal PSAP Architecture, Adopted Final Report at 154 (2016) (TFOPA
Report), https://transition.fcc.gov/pshs/911/TFOPA/TFOPA_FINALReport_012916.pdf; see generally FCC, Legal and
Regulatory Framework for Next Generation 911 Services, Report and
Recommendations, at Sec. 4.1.4 (2013), https://www.911.gov/pdf/FCC_Report_Legal_Regulatory_Framework_NG911_Services_2013.pdf. Other
commenters have noted instances of fee diversion resulting in the
delay of 911 improvements. See New Jersey Wireless Association Reply
Comments to Tenth Report, PS Docket No. 09-14, at 2 (rec. Feb. 12,
2019) (noting that instead of upgrading to NG911 technology, New
Jersey is maintaining a 911 selective router system that is ``past
its useful life and is now costing more to maintain from previous
years, due to its obsolescence''); Letter from Matthew Grogan, 1st
Vice President, Nevada APCO at 1 (Feb. 15, 2019) (noting that Nevada
911 funds have been used to purchase police body cameras at a time
when ``several counties and jurisdictions . . . are still not
equipped with enhanced 9-1-1 services''), https://www.leg.state.nv.us/App/NELIS/REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhibitId=36516&fileDownloadName=SB%2025_Testimony%20in%20Opposition_Matthew%20Grogan%20Nevada%20Fee%20Diversion.pdf.
---------------------------------------------------------------------------
In addition, we seek comment on extending 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.\27\ This would be consistent
with the approach taken in the agency's annual fee reports, which found
that the mere labelling of a fee is not dispositive and that one must
examine the underlying purpose of the fee to determine whether it is
(or includes) a 911 fee within the meaning of the NET 911 Act.\28\ We
seek comment on these conclusions.
---------------------------------------------------------------------------
\27\ We also propose a safe harbor in the rules providing that
the obligation or expenditure of such fees or charges will not
constitute diversion so long as 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.
\28\ E.g., FCC, Twelfth Annual Report to Congress on State
Collection and Distribution of 911 and Enhanced 911 Fees and Charges
at 51-52, para. 31 (2020) (Twelfth Report), https://www.fcc.gov/files/12thannual911feereport2020pdf (``We do not agree that a fee or
charge must be exclusively designated for 911 or E911 purposes in
order to constitute a fee or charge `for the support or
implementation of 9-1-1 or enhanced 9-1-1 services' under section
6(f)(1) of the NET 911 Act.''); see also FCC, Eleventh Annual Report
to Congress on State Collection and Distribution of 911 and Enhanced
911 Fees and Charges at 43, para. 34 (2019) (Eleventh Report),
https://www.fcc.gov/files/11thannual911feereport2019pdf.
---------------------------------------------------------------------------
We propose that for purposes of implementing Section 902, our
definition of ``911 fee or charge'' should similarly extend to fees or
charges that are expressly identified by the state or taxing
jurisdiction as supporting 911, even if the fee is not labelled as a
911 fee. We tentatively conclude that this is consistent with the
purpose of Section 902 with respect to diversion of 911 fees and
charges. We seek comment on this proposal. Does the proposed definition
of 911 fees or charges capture the universe of 911 fees or charges that
can be diverted? Is the definition overinclusive or underinclusive? Are
there other modifications to the definition that would help to prevent
911 fee diversion?
Diversion. Section 902(f)(4) defines ``diversion'' as, with respect
to a 911 fee or charge, 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 this Act, as purposes and functions for which the obligation
or expenditure of such a fee or charge is acceptable.
We propose to codify this definition, with minor changes to
streamline it. Specifically, we propose 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 propose to clarify that 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 by the Commission. We believe this provision will
clarify that states and taxing jurisdictions are also responsible for
diversion of 911 fees by political subdivisions, such as counties, that
may receive 911 fees. We seek comment on these proposals.
[[Page 12403]]
State or taxing jurisdiction. 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.).'' \29\ We propose to codify this definition in our rules. We
note that the existing language in section 615a-1 directs the
Commission to submit an annual report to Congress on the use of 911
fees by ``each State or political subdivision thereof,'' and Section
902 does not revise this language. We also note that Section 902 does
not alter the definition of ``State'' in the existing legislation.
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.'' \30\ 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. To
clarify this and to assist users of the regulations, we propose to add
the definition of ``State'' to subpart I.
---------------------------------------------------------------------------
\29\ 47 U.S.C. 615a-1(f)(3)(D)(iii) (as amended); sec.
902(c)(1)(C), (f)(5).
\30\ 47 U.S.C. 615b(2).
---------------------------------------------------------------------------
Regarding the scope of proposed subpart I, we propose that the
rules 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.
And as the proposed definitions make clear, such fees or charges would
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. We seek comment on these proposals.
A. 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.'' \31\ 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.'' \32\ 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.\33\
---------------------------------------------------------------------------
\31\ 47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).
\32\ 47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).
\33\ 47 U.S.C. 615a-1(f)(5)(A) (as amended); Section
902(c)(1)(C). Such a petition must be granted if the Commission
finds that the State or taxing jurisdiction has provided sufficient
documentation to demonstrate that the purpose or function in
question supports PSAP functions or operations, or that the purpose
or function has a direct impact on the ability of a PSAP to receive
or respond to 911 calls or to dispatch emergency responders. Id.
---------------------------------------------------------------------------
We propose 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. This proposed language tracks the language in
Section 902. In addition, we propose to specify in the rules that
examples of such 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,
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 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. They also are consistent with the
Commission's past analysis of 911 fee diversion in its annual fee
reports, and, as required under Section 902, they reflect the
Commission's consideration of the purposes and functions that states
have specified for their 911 fees and charges. In particular, the
Commission has stated in its annual fee reports that the requisite
nexus to 911 includes expenditures that (1) support PSAP functions or
operations, (2) have a reasonable nexus to PSAPs' ability to receive
911 calls and/or dispatch emergency responders, or (3) relate to
communications infrastructure that connects PSAPs (or otherwise ensures
the reliable reception and processing of emergency calls and their
dispatch to first responders).\34\ In addition, the Commission has
stated that expenses associated with integrating public safety dispatch
and 911 systems (e.g., purchase of CAD hardware and software to support
integrated 911 and dispatch operations) may be 911 related, provided
the state or other jurisdiction can document a connection to 911.\35\
We seek comment on our proposed inclusion of these examples of
acceptable purposes and functions and any additional examples that
should be specified in the rules.
---------------------------------------------------------------------------
\34\ See FCC, Tenth Annual Report to Congress on State
Collection and Distribution of 911 and Enhanced 911 Fees and Charges
at 49, para. 40 (2018) (Tenth Report), https://www.fcc.gov/files/10thannual911feereporttocongresspdf. Under this analysis, funding
for 911 dispatcher salaries and training would have a sufficient
nexus to 911, but equipment and infrastructure for law enforcement,
firefighters, and other first responders generally would not. See
also Eleventh Report at 74, para. 59 (``CTIA supports the Commission
in requiring documentation sufficient to demonstrate that the
expenditures (1) support PSAP functions or operations, (2) have a
reasonable nexus to PSAPs' ability to receive 9-1-1 calls and/or
dispatch emergency responders, or (3) relate to communications
infrastructure that connects PSAPs.'').
\35\ See Twelfth Report at 48-49, para. 26; Eleventh Report at
39, para. 26; Tenth Report at 42, para. 26.
---------------------------------------------------------------------------
We also seek comment on specifying certain examples of purposes and
[[Page 12404]]
functions that are not acceptable for the obligation or expenditure of
911 fees or charges for purposes of the statute. These would include,
but are not limited to:
(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, 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.
Identifying these examples as unacceptable expenditures for
purposes of the statute is consistent with the manner in which such
expenditures were analyzed in our annual 911 fee reports. For example,
the 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.\36\ 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.\37\ The Eleventh Report explained that the purchase or
upgrade of public safety radio equipment was not considered to be 911
related because ``radio networks used by first responders are
technically and operationally distinct from the 911 call-handling
system.'' \38\ We seek comment on whether we should reexamine any of
these prior findings in light of the impact of the coronavirus pandemic
on public safety and emergency communications services, if any.
---------------------------------------------------------------------------
\36\ E.g., Twelfth Report at 52-54, paras. 32, 35, 37; Eleventh
Report at 40, 42-43, paras. 28, 32, 35; Tenth Report at 43-44, 46-
47, paras. 30, 32, 35, 37.
\37\ See Twelfth Report at 48-49, para. 26; Eleventh Report at
39, para. 26; Tenth Report at 42, para. 26.
\38\ See Eleventh Report at 42, para. 32; see also Eleventh
Report at 44, para. 37 (finding that there was no 911 fee diversion
where Virginia allocated a portion of its wireless E911 funding to
the Virginia State Police for costs incurred for answering wireless
911 telephone calls and to support sheriff's 911 dispatchers).
---------------------------------------------------------------------------
Our proposed designation of acceptable purposes and functions for
purposes of the statute is also consistent with the legislative history
of the NET 911 Act. 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 that several states were known to be using 911 fees for
``purposes other than 911 or emergency communications services.'' \39\
The Report also noted that under subsection 6(f) of the proposed
legislation, ``[s]tates and their political subdivisions should use 911
or E-911 fees only for direct improvements to the 911 system. Such
improvements could include improving the technical and operational
aspects of PSAPs; establishing connections between PSAPs and other
public safety operations, such as a poison control center; or
implementing the migration of PSAPs to an IP-enabled emergency
network.'' Further, ``[t]his provision 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 the PSAPs.'' \40\
---------------------------------------------------------------------------
\39\ House of Representatives Committee on Energy and Commerce,
Report on 911 Modernization and Public Safety Act of 2007, H. Rept.
110-442 at 11 (2007) (H. Rept. 110-442), https://www.congress.gov/110/crpt/hrpt442/CRPT-110hrpt442.pdf (``The most recent data
available indicate that four states use 911 fees, including wireless
and wireline fees, for purposes other than 911 or emergency
communications services.'').
\40\ H. Rept. 110-442 at 15.
---------------------------------------------------------------------------
We seek comment on our proposed designation of acceptable purposes
and functions under the statute. Are the proposed purposes and
functions that would be deemed acceptable overinclusive or
underinclusive? If the proposed purposes are overinclusive, commenters
should explain how and why. What purposes and functions have states and
taxing jurisdictions specified as the intended functions for 911 fees
and charges, and how should we take these specifications into account
as we designate acceptable purposes and functions under Section 902?
CTIA contends that allowable 911 expenditures should include the
nonrecurring costs of establishing a 911 system, the costs of emergency
telephone and dispatch equipment, and costs for training for
maintenance and operation of the 911 system but should exclude costs
for leasing real estate, cosmetic remodeling of facilities, salaries or
benefits, or emergency vehicles.\41\ The Commission has found in its
911 fee reports, however, that some PSAP overhead costs, such as 911
telecommunicator salaries, are 911 related.\42\ To the extent that the
proposed purposes and functions are underinclusive, commenters should
identify what additional purposes and functions should be deemed
acceptable, and why.
---------------------------------------------------------------------------
\41\ CTIA Comments on Fee Diversion NOI at 5-6 (rec. Nov. 2,
2020).
\42\ See, e.g., Eleventh Report at 21, para. 18; Tenth Report at
44-45, para. 33.
---------------------------------------------------------------------------
We also propose to define acceptable purposes and functions under
Section 902 for states and taxing jurisdictions that impose multi-
purpose fees or charges intended to support 911 services as well as
other public safety purposes. In such instances, we believe states and
taxing jurisdictions should have the flexibility to apportion the
collected funds between 911 related and non-911 related programs, but
that safeguards are needed to ensure that such apportionment is not
subject to manipulation that would constitute fee diversion. We
therefore propose to adopt a safe harbor in our rules providing that
the obligation or expenditure of such fees or charges will not
constitute diversion so long as 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.
This provision would provide transparency in the use of 911 fees when a
state or taxing jurisdiction collects a fee for both 911 and non-911
purposes. It would also enable the Commission to verify through the
annual fee report data collection that the 911 portion of such fees or
charges is not being diverted.
We seek comment on our proposal for determining whether there is
diversion of a fee or charge collected for both 911 and non-911
purposes. Are the measures we propose sufficient to provide
transparency with respect to diversion in the use of such fees? Are
there other measures that would help ensure that 911 fees or charges
are fully traceable in states or taxing jurisdictions with such funding
mechanisms? In addition, some state laws and regulations provide that
any excess 911 funds left over after all 911 expenditures have been
covered can be used for non-911 related purposes.\43\ Similarly, some
state laws and regulations provide that if the 911 service is
discontinued, the remaining 911 funds can be disbursed to non-911 uses,
such as a general fund. Does the existence or implementation of
[[Page 12405]]
such provisions for non-911 related disbursements constitute diversion?
---------------------------------------------------------------------------
\43\ The TFOPA Report noted, ``The legislative practice of
sweeping uncommitted balances of 9-1-1-related accounts, especially
those intended to fund NG9-1-1 system infrastructure generally
occurs quietly without much public scrutiny.'' TFOPA Report at 153-
54. The TFOPA Report proposed measures to deter such sweeps and
advised that ``there should ultimately be consequences for repeated
diversions.'' Id. at 162.
---------------------------------------------------------------------------
B. Petition for Determination
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 9-1-1 fee or charge . . . by such State or taxing
jurisdiction for a purpose or function other than a purpose or function
designated under paragraph (3)(A) [support for 911 services/PSAP
expenditures] should be treated as such a purpose or function.'' \44\
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.'' \45\ 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.\46\
---------------------------------------------------------------------------
\44\ 47 U.S.C. 615a-1(f)(5)(A) (as amended); sec. 902(c)(1)(C).
\45\ 47 U.S.C. 615a-1(f)(5)(B) (as amended); sec. 902(c)(1)(C).
\46\ 47 U.S.C. 615a-1(f)(5)(A) (as amended); sec. 902(c)(1)(C).
---------------------------------------------------------------------------
We propose to codify these provisions in new subpart I of the
rules. We believe 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. At the same time, the proposed rule would set clear standards
for what states must demonstrate to support a favorable ruling,
including the requirement to provide sufficient documentation. To
promote efficiency in reviewing such petitions, we also propose that
states or taxing jurisdictions seeking such a determination must do so
by filing a petition for declaratory ruling under Sec. 1.2 of the
Commission's rules.\47\ 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. Consistent with
the declaratory ruling process outlined in Sec. 1.2(b), we anticipate
docketing the petition within an existing or new proceeding. In
addition, we anticipate the Public Safety and Homeland Security Bureau
will seek comment on petitions via public notice and with a comment and
reply comment cycle. We propose to delegate authority to the Bureau to
rule on these petitions. We seek comment on these proposals and on any
possible alternative processes for entertaining such petitions.
---------------------------------------------------------------------------
\47\ See 47 CFR 1.2.
---------------------------------------------------------------------------
C. Other Section 902 Provisions
Pursuant to Section 902(d)(4), any state or taxing jurisdiction
identified by the Commission 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.'' \48\ We propose to codify this
restriction as it applies to any advisory committee established by the
Commission in subpart I and seek comment on this proposal. We also seek
comment on the extent to which state and local governments currently
diverting 911 fees (based on the Commission's most recent report) now
participate in such Commission advisory committees and the impact on
them from being prohibited from doing so. Would it be helpful to
provide a mechanism for states and taxing jurisdictions to raise
questions regarding their eligibility to serve on an advisory
committee?
---------------------------------------------------------------------------
\48\ Sec. 902(d)(4) (internal citations omitted).
---------------------------------------------------------------------------
Section 902(c)(1)(C) also 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].'' \49\ We propose to codify
this provision in subpart I and seek comment on this proposal. What
effect does this statutory provision and its proposed codification in
the Commission's rules have on states or taxing jurisdictions that
receive such grants? Does this provision, combined with other statutory
anti-diversion restrictions that already apply to 911 grant recipients,
increase the likelihood that diverting states and taxing jurisdictions
will change their diversion practices? Are there any aspects of our
proposed implementation of Section 902 that might create obstacles to
state fiscal needs?
---------------------------------------------------------------------------
\49\ 47 U.S.C. 615a-1(f)(4) (as amended); Section 902(c)(1)(C).
The National Highway Traffic Safety Administration and National
Telecommunications and Information Administration 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.
---------------------------------------------------------------------------
Finally, 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 the Commission is similarly required to provide the
interagency strike force with any information regarding underfunding of
911 services,\50\ in addition to the proposals discussed above, we seek
comment on how the Commission can emphasize this aspect of its
information collection reports.
---------------------------------------------------------------------------
\50\ Sec. 902(d)(1).
---------------------------------------------------------------------------
Procedural Matters
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA), the Commission has prepared this Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on a
substantial number of small entities by the policies and rules proposed
in the notice of proposed rulemaking (NPRM). Written public comments
are requested on this IRFA. Comments must be identified as responses to
the IRFA and must be filed by the deadlines for comments provided on
the first page of the NPRM. The Commission will send a copy of the
NPRM, including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration (SBA). In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
The NPRM proposes and seeks comment on ways to implement Section
902 of the Consolidated Appropriations Act of 2021. On December 27,
2020, the President signed the Don't Break Up the T-Band Act of 2020,
which is Division FF, Title IX, Section 902 of the Consolidated
Appropriations Act, 2021 (Pub. L. 116-260). Section 902 directs the
Commission to issue final rules 180 days after enactment on December
27, 2020 designating acceptable purposes and functions for the
obligation or expenditure of 911 fees by states and taxing
jurisdictions. Section 902 also provides that the use of 911 fees for
any
[[Page 12406]]
purpose or function other than those designated by the Commission
constitutes 911 fee diversion.
To implement Section 902 of the Act, the NPRM seeks comment on the
Commission's proposals to amend part 9 of the rules to establish a new
subpart I regarding ``911 Fees.'' Section 902 defines several terms,
and the NPRM proposes to codify these definitions in the new subpart I
of the rules. In addition, Section 902 directs the Commission to issue
final rules designating purposes and functions for which the obligation
or expenditure of 911 fees is acceptable. It also provides that the
purposes and functions identified by the Commission as acceptable
``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 NPRM seeks comments on
proposals to develop an illustrative, non-exhaustive list of
permissible and non-permissible uses for purposes of Section 902.
Section 902 provides that a state or taxing jurisdiction may
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. Per Section 902, the petition must demonstrate that the
expenditure: (1) Supports public safety answering point (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. In addition, the
Commission seeks comment on amending the rules to require 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 annual report to Congress required by the NET 911 Act.
The NPRM seeks comment on proposals to codify these provisions in
subpart I of part 9 of the rules.
B. Legal Basis
This action was taken 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.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed 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 proposed rules, if adopted. The RFA generally 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 1000 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
[[Page 12407]]
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.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
As indicated in Section A above, the NPRM seeks comment on proposed
rules to implement Section 902. The NPRM generally does not propose
specific reporting or recordkeeping requirements. The NPRM does,
however, propose and seek comment on codifying the requirement that
states or taxing jurisdictions seeking a Commission determination on
911 fee diversion satisfy certain criteria established in Section 902.
In such cases, a state or taxing jurisdiction would have to 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 will have 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.
The Commission proposes to apply the existing declaratory ruling
procedures and obligations under Sec. 1.2 of the Commission's rules,
which small entities may already be familiar with, to petitions for
determination.
In addition, the NPRM seeks comment on amending the rules to
require 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 (47 U.S.C. 615a-1(f)(2)). This proposed requirement is consistent
with the requirements of Section 902. Under OMB Control No. 3060-1122,
the Office of Management and Budget previously approved and renewed the
information collection requirements associated with filing annual 911
fee reports as mandated by the NET 911 Act.
E. 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 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 small entities.
In the NPRM, the Commission seeks to implement the provisions of
Section 902 that require Commission action by proposing changes to part
9 of our rules that would achieve the stated objectives of Congress's
mandated rules 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 inherently take steps to
minimize any significant economic impact or burden for small entities.
Specifically, we propose to adopt and codify the definitions in Section
902 for certain terms relating to 911 fees and fee diversion in part 9
of our rules. For a few terms, we make limited modifications to the
definition to avoid gaps and promote the apparent intent of the new
statute. In addition to promoting consistency, we believe our proposals
will help small entities and others who will be subject to Section 902
and our rules avoid additional expenses for compliance which may have
resulted if the Commission in the alternative proposed and adopted
different definitions for certain terms in Section 902 relating to 911
fees and fee diversion.
Similarly, to fulfill the Commission obligations associated with
issuing rules designating acceptable purposes and functions, for
consistency we propose to 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 also propose to specify in the rules examples of both
acceptable and unacceptable purposes and functions for the obligation
or expenditure of 911 fees or charges. If adopted, identifying and
including these 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, the Commission expects to more fully consider the economic
impact on small entities, as identified in comments filed in response
to the NPRM and this IRFA, in reaching its final conclusions and taking
action in this proceeding.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
[[Page 12408]]
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 notice of proposed rulemaking is hereby adopted.
It is further ordered that, pursuant to applicable procedures set
forth in Sec. Sec. 1.415 and 1.419 of the Commission's Rules, 47 CFR
1.415, 1.419, interested parties may file comments on the notice of
proposed rulemaking on or before 20 days after publication in the
Federal Register, and reply comments on or before 30 days after
publication in the Federal Register.
It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this notice of proposed rulemaking, including the Initial
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.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 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.
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 meaning:
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.
(a) Acceptable purposes and functions for the obligation or
expenditure of 911 fees or charges 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,
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.
(c) Examples of purposes and functions that are not acceptable for
the obligation or expenditure of 911 fees or charges 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, 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.
(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:
[[Page 12409]]
(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.
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 (47 U.S.C. 615a-
1(f)(2)).
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 (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. 2021-04250 Filed 3-1-21; 4:15 pm]
BILLING CODE 6712-01-P
