FCC Report Shows 911 Fee Shifting ‘Little Changed’: O’Rielly

An FCC report showing a bump in 911 fee diversion in 2020 frustrated former Commissioner Mike O'Rielly and the National Emergency Number Association (NENA). The agency reported that some states diverted more than $207 million in 2020. Don’t adopt a safe harbor or grace period to comply with the fee diversion order, said CTIA in comments posted Friday in docket 20-291 (see 2112210037). CTIA opposed petitions for reconsideration from Colorado’s Boulder Regional Emergency Telephone Service Authority and City of Aurora 911 Authority, saying the requests would “undermine Congress’s intent.”

"Sadly, my first review of the FCCs latest 911 diversion report suggests that little has changed over previous years as past state abusers like New York, New Jersey, and Nevada continue to be so,” emailed O’Rielly: “We'll see if the new authority and expectations Congress recently provided helps the situation but I'm not sure the recalcitrant states will correct behavior without even more stringent penalties.”

The report said Nevada, New Jersey, New Mexico, New York and West Virginia shifted about 6.5% of all 911 fees collected in 2020. That’s about the same as what was in 2019 (see 2012080055). Rhode Island no longer diverts funds after it changed its fee handling laws, the Dec. 31 report said. The Northern Mariana Islands didn't respond again to the FCC. Neither did the U.S. Virgin Islands.

New was New Mexico, which self-reported that it shuffled $2 million to its general fund. New Jersey again was the biggest diverter, with $104.5 million -- 82.1% -- going to public safety. New York used $100.7 million -- 41.7% -- of its fees to the state’s general fund and later “deposited into the statewide public safety communications account.” At least one jurisdiction in Nevada diverted an unspecified amount to a “non-911 public safety use.” In West Virginia, $500,000 -- 0.7% -- was used to “subsidize construction of towers.” Governors’ offices for the five diverting states didn’t comment.

“Fee diversion is bad for 911 and it’s bad for the public,” said NENA Government Affairs Director Dan Henry in an interview. “It’s really frustrating that … the practice continues.” The only way to change may be “if state legislatures start putting policy ahead of politics … and stop playing games with these funds,” Henry said. Bright spots include a $90 million jump in state next generation-911 funding and more emergency services IP networks and text-to-911, he said.

Reporting states spent about $365 million on NG-911 in 2020. Seven states, American Samoa and Guam reported no such expenditures. The FCC said 19 states operated statewide ESInets, 16 had regional ESInets and 10 had local-level ESInets. Respondents reported 3,044 public safety answering points as text-capable, and two additional states and Guam expected to have provided that capability in 2021. The District of Columbia and 21 states spent funds on PSAP cybersecurity in 2020, but 27 states and three territories said they didn’t; 3,034 PSAPs with text-to-911 were listed in the FCC's registry as of Nov. 30.

New York and New Jersey still do the most 911 fee diversion, combining for $205.3 million of $207.8 million. It's “a two-state problem,” said Henry, noting each state’s diversion total broke into nine figures for the first time. NENA hopes New York’s new Gov. Kathy Hochul (D) will prioritize ending 911 fee diversion, but whether legislative bandwidth exists is an “open question,” especially with other big issues like COVID-19.

It could be West Virginia’s last year in the report because it stopped diverting in 2020’s second half, said Henry: Rhode Island, flagged in several previous years, left the list after splitting its fee into public safety and 911 surcharges, ensuring revenue from each goes to the correctly labeled place. “You see states jump in and out periodically,” said Henry on New Mexico joining the list. It’s sometimes because of a difficult budget in a given year, or a legislature “trips up” due to information or communication gaps, he said. Nevada “started diverting funds for body cameras without really asking anyone at the FCC whether that would constitute fee diversion,” Henry said: A more solidified definition should help legislatures.

The National Association of State 911 Administrators appreciates “the FCC's ongoing efforts to identify and eliminate 911 fee diversion,” emailed NASNA Executive Director Harriet Rennie-Brown. “We hope that its recent rulemaking and work of the 911 Fee Diversion Strike Force will serve to strengthen those efforts. The integrity of 911 fee collection and fund use is key to citizens' trust in the 911 fees they pay and of utmost importance to ensure that 911 systems across the country receive the funding they need.”

The strike force agreed to a series of recommendations in its September report to Congress. One recommendation was to levy "some form of criminal penalty" against diverting jurisdictions through fines or forfeitures (see 2109170023). The report didn’t address that. The agency has been reviewing the strike force's recommendations and declined to comment further Friday.

Meanwhile, BRETSA is “misguided” in its claim the FCC’s decision to not adopt a grace period is “frustrating, rather than supporting Congress[’s] intent,” CTIA said, rejecting its request that the agency reverse its policy that states should be held responsible for fee diversion by localities. The current policy “sets the right course to ensure that all entities have the proper incentives to achieve Congress’ vision to end 911 fee diversion,” the group said.