FCC 911 Fee NOI Gets Backing as Some Question Impact

Opponents of states using 911 fees for unrelated purposes support an FCC notice of inquiry proposed for vote at Wednesday’s meeting. Some want earlier action and wonder what the future holds, since the item’s main FCC champion, Commissioner Mike O’Rielly, is likely leaving. The agency would ask how to dissuade states from diverting 911 fees and the impact of the practice (see 2009090048).

The NOI is expected to get a 5-0 vote, agency officials told us. There are questions about how much authority the agency has for fee diversion, but all those we asked agree it's a problem and asking questions is appropriate. The NOI is viewed as the FCC addressing one of O’Rielly’s big issues as he nears the end of his term. The FCC declined to comment Wednesday beyond Chairman Ajit Pai’s Sept. 8 blog.

The FCC’s last state 911 fees report flagged New Jersey, New York, Rhode Island, West Virginia and at least one Nevada county for diverting in 2018 (see 1912190077).

“New York’s cellular surcharge is used to upgrade public safety communication systems and support emergency services operations, statewide, including through the provision of interoperable communications grants," emailed a New York State Division of the Budget spokesperson. "These programs are providing critical funding to help first responders at all levels of government communicate faster and respond sooner.”

Nevada "continues to work with the FCC on these matters,” emailed Department of Public Safety Division of Emergency Management Chief Justin Luna now. O’Rielly accepted West Virginia earlier this year writing a law clarifying how money is used by establishing three separate funds, for 911, public safety wireless and cell towers (see 2003270042). Rhode Island got criticism after last year halving its 911 fee to 50 cents and restricting that amount for 911 purposes, while setting up a separate “first response surcharge” of 50 cents, with 90% going to the general fund and 10% to an IT investment fund (see 2001070025). Governors for that state, Nevada and New Jersey didn’t comment now.

Rhode Island House Minority Leader Blake Filippi (R) praised FCC "efforts to explore avenues in strengthening the NET 911 ACT, specifically in addressing diversion of 911 fees from their intended purpose to general government funding.” Rhode Island passed a bill to restrict part of the fees, but “half of the fees collected are still being diverted into other accounts,” he wrote. “We need clear federal authority to enforce the expenditure of public safety fees as they are stated to the consumers.”

“If we’re trying to get blood from a stone, and that becomes painfully obvious in this NOI,” it may at least be “a signal to Congress that the FCC has exhausted all of its options,” said National Emergency Number Association Director-Government Affairs Dan Henry. “Almost any step is a good step,” but “the FCC doesn't seem to have a lot of readily available levers it can pull” to fix fee diversion, other than raising public attention, Henry said. It could lead to creative new ideas, and quantifying damage to 911 could be an “important talking point,” but NENA has “no silver-bullet solutions in mind ... if the FCC is the only regulatory agency involved,” he said.

It’s not the FCC’s first NOI on the subject, though it has been several years since the last one, said NENA President Brian Fontes. Congress should give the FCC enforcement authority or itself stop states from diverting by threatening to withhold federal grants, he said. Withholding next-generation 911 grants alone won’t be “a big enough stick,” agreed Henry. Diversion is effectively a two-state problem, with New York and New Jersey responsible for 94% in 2018, with general budgets “the size of small countries,” he warned. “It’s a mistake to consider this a nationwide problem because that leads us to bending over backward to develop these very complicated regulatory solutions for what really amounts to the bad behavior of a few.” COVID-19 putting a crunch on state budgets may discourage stopping, he said.

State 911 administrators “do not support fee diversion” and welcome the chance to respond to the NOI, said National Association of State 911 Administrators Executive Director Harriet Rennie-Brown. “It gives us the opportunity to explain the true impact that fee diversion has on 911 programs” that depend on that revenue. “These are things that they have asked in the past.”

New York, New Jersey and Rhode Island 911 administrators didn't comment.

Advocate Interest

The NOI shows the FCC is “fed up” with diversion, too, said New Jersey Wireless Association President Dominic Villecco, praising asking about the practice’s effect on providing 911 services and moving to NG-911. NJWA will “see if we can get some of this grassroots support that we’ve been working on for years to answer that specific question, because I think they really need to see ... what really happens with this fee diversion.” NJWA “filed for the last eight years” in response to FCC state 911 reports and plans to comment on the NOI, Villecco said. “We would have liked seven years ago ... to see some action.”

New Jersey at first had about $13 million for 911 in its proposed budget this year, but that was later pulled, with the pandemic as “the excuse,” Villecco said. A proposed constitutional amendment by state Sen. Michael Testa to end diversion went nowhere. As a freshman Republican in a Democratic-controlled legislature, the sponsor had no “real control or authority to push anything through,” said Rob Ivanoff, NJWA’s previous president. New Jersey seems unwilling to give up a “slush fund,” Villecco said. Testa didn’t comment.

The NOI is “a step in the right direction to make sure states like New Jersey start doing the right thing,” said New Jersey Association of Counties Executive Director John Donnadio. NJAC plans to comment in hopes that the proceeding will bring attention to an issue his group has been fighting for years, said Donnadio: Diversion is holding back NG-911 in a state with an aging backbone network (see 1904230021).

Local 911 officials from New York state may comment, said NYS 911 Coordinators Association Western Director Steven Sharpe. Counties and municipalities “are reeling from significant losses in revenues due to the current pandemic,” but New York “continues to collect surcharges while failing to release funds that have been legislatively set aside for the provision of 911 and public safety communications services,” he emailed.

“This is big” for Rhode Island advocates who seek to explain the state didn’t fix the problem last year when it said it did, said Robin Giacomini, an X-ray technician who has advocated on the issue. The state’s so-called “first response surcharge” is misleading, she emailed Monday.

O’Rielly

“The NOI will help keep this important issue top of mind," emailed O'Rielly Chief of Staff Joel Miller. "As we saw on the House floor earlier this week, there’s definitely interest in addressing diverting states, so even though the Commission likely needs greater authority from Congress to fully address the remaining problems, we’re looking forward to seeing how the record develops and hope to keep up the momentum."

O’Rielly's leaving means looking for a new FCC champion on fee diversion, said NJAC’s Donnadio. “You lose that type of voice, it’s a big loss for us.”

While O’Rielly was the issue’s “biggest cheerleader,” Pai and Commissioner Jessica Rosenworcel have showed support, and the NOI can keep the issue alive, said NJWA’s Villecco. “Just hoping that one or two of the other commissioners will pick up that flag.”

The commissioner was “most vocal” on 911 fee diversion, and many in public safety and across the communications industry were surprised when President Donald Trump rescinded his renomination, said NASNA's Rennie-Brown. O’Rielly “did an excellent job underscoring” the importance of funding 911 and the truth-in-billing issue raised by diversion, said Fontes. Although, he said, the commissioner’s pressure might have “helped trigger some ... negative consequences” like Rhode Island renaming but continuing diversion.

Editor's note : This is part of an ongoing series of articles about 911, including on fee diversion and dispatching problems in the District of Columbia. To read some of those stories, see here, here, here and here for those reports from 2020.