New York Defends 911 Fee Diversion, as Pressure Builds

Don’t cite state law to justify New York diversion of 911 fees for things not directly related to 911, an aide to FCC Commissioner Mike O’Rielly said Monday. O’Rielly and Rep. Chris Collins (R) condemned New York diversion Friday while visiting the Niagara County Emergency Management Office public safety answering point in Buffalo. A New York department said it uses fee revenue for first responder communications and state tax law prevents the state from using the money differently. But Niagara County Sheriff James Voutour said the policy keeps 911 funding from counties responsible for handling many emergency calls.

The FCC has flagged New York as a 911 fee diverter every year since the agency’s 2009 report to Congress. New York didn’t report to the FCC in 2016, but the commission said the state diverted 42 percent ($77.3 million) in 2015 (see 1802230012 and 1701170051). “Sufficient public record information exists to support a finding that New York diverted funds for non-public safety uses” in 2016, the agency said in a February report. Pressure is mounting to stop state 911 fee diversion in New Jersey and Rhode Island (see 1804050042 and 1803200052).

“New York’s cellular surcharge is used to upgrade public safety communication systems and support emergency services operations statewide, including through the provision of $295 million worth of interoperable communications grants, so far,” a New York Department of Budget spokesman emailed. “In the event of an emergency, every second counts and this measure provides critical funding to help first responders, at all levels of government, communicate faster and respond sooner.” New York State Tax Law Section 186-F requires that the general fund receive 41.7 percent of the $1.20 monthly charge on wireless bills, the representative said. “The authorizing statute as passed into law by the Legislature dictates how the money is to be used and we are bound by this law.”

“New York should not hide behind its law,” O’Rielly aide Brooke Ericson emailed us. “It should change it.” O’Rielly disagrees that using 911 fees for public safety purposes generally is acceptable, she said. “Despite how meritorious the cause, diverting 9-1-1 funds for other purposes is deceiving at best, and harmful to public safety at worst.” During Friday’s visit to Buffalo, Voutour “informed us that in the last five years, their citizens with a wireless device paid $10.2 million in fees and only $2.2 million of those fees returned to Niagara County’s PSAP center,” Ericson said. “That diversion prevents upgrades like text to 9-1-1 and next generation 9-1–1 features that will enhance public safety tools.”

Commissioner Jessica Rosenworcel supported revealing such fee moves. “When consumers see a 9-1-1 fee on their phone bill, they should have confidence that this fee actually goes toward 9-1-1," she said in a statement. "When this doesn’t happen, consistent with our statutory duties, we need to figure out what is going on and shine a light on any diversionary activities."

“It is a 911 surcharge and should be spent accordingly,” emailed Voutour, attaching a letter the county sheriff sent Friday to O’Rielly and Collins. Under pressure about spending practices nearly 10 years ago, New York changed the tax law’s title to public safety communications surcharge from 911 surcharge, Voutour wrote. The law directs New York to send $25 million yearly to New York State Police, but in Niagara and several other counties, state police shut down their dispatch centers and rely on county centers without paying counties’ expenses, he said. Voutour urged Congress and the FCC to require New York to provide 911 fees directly to counties that operate PSAPs.

O’Rielly and Collins threatened federal action to stop New York fee diversion. “New York’s diversionary tactics must stop,” the commissioner and congressman wrote in an opinion piece. “If the state doesn’t act, we will have to explore ideas at the federal level to bring an end to this practice once and for all.” Redirection prevents New York from receiving federal funding from the 2012 Middle Class Tax Relief and Job Creation Act, they said. State tax records show New York collected more than $185 million from the state’s 9-1-1 fee in 2016, but only dedicated $10 million in support of the state’s PSAPs, and the state may need $2.2 billion to upgrade its 911 system, they said. “With a shortfall like this, one must wonder why the state would risk falling further behind by prioritizing funding for the General Fund rather than 9-1-1 services.”

The National Association of Counties supports FCC or Capitol Hill action to prevent 911 fee diversion, a spokesman said. “Many localities are interested in upgrading their 911 systems, but lack the revenue to do so.”