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Federal Register / Vol. 86, No. 156 / Tuesday, August 17, 2021 / Rules and Regulations
902, expenditures of 911 fees on equipment or infrastructure for law enforcement, firefighters, and other public safety/first responder entities that do not directly support 911
services. We revise the language of this section slightly to provide that examples of purposes and functions that are not acceptable for the obligation or expenditure of 911 fees or charges for purposes of section 902 include, but are not limited to, Equipment or infrastructure for law enforcement, firefighters, and other public safety/first responder entities that does not directly support providing 911 services. The reference to whether such equipment or infrastructure directly supports providing 911 services more closely tracks the language in section 902.
Further, with respect to the application of this rule to public safety radio expenditures, we leave the precise dividing line between acceptable and unacceptable radio expenditures open for further refinement, and we refer this issue to the 911 Strike Force for further consideration and the development of recommendations.
Commenters were divided on whether using 911 funds to pay for public safety radio systems constitutes fee diversion.
The Tarrant County TX 911 District strongly disagrees with commenters who assert that allowable uses of 911
fees should include items such as radio infrastructure, mobile radios, portable radios, pagers or other systems: THIS
is exactly the problem. Agencies want to fund the entire public safety response system by recategorizing equipment, vehicles, and unrelated systems as part of the 911 response. It is emphatically NOT all part of the 911 system. The purpose of the fee is strictly to support Basic 911 and Enhanced 911 E911
services only. CTIA and NTCAThe Rural Broadband Association NTCA
argue that allowing radio system expenses would depart from fee report precedent, where the agency has ruled that use of funds to support public safety radio systems and associated maintenance and upgrades are not 911related and constitute fee diversion. The North Carolina 911 Board NC 911
Board supports the NPRM proposal and notes that it only funds radio expenses within the PSAP based on the definition of call taking in the North Carolina statute.
However, some state and local 911
entities urge the Commission to find that expenditures of 911 funds on public safety radio systems are broadly acceptable and do not constitute fee diversion. These commenters contend that radio networks are not operationally and technically distinct
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from the 911 system and should be treated as integral components of the 911 ecosystem. For example, NYS
DHSES asserts that public safety communication systems are most effective when they address all users.
This requires connecting the general public to 911 Centers and their telecommunicators who, in turn, communicate with first responders in the field. The Michigan 911 Entities assert that unless the Commission is suggesting that police and fire go back to the wired Call Box on the street corner, there is no doubt that a PSAP is virtually useless without its interconnection to the radio system.
Similarly, that radio system is useless without subscriber units for the system with which to communicate.
Several commenters also assert that our proposal to consider expenditures for public safety radio expenses unacceptable for section 902 purposes in certain circumstances is inconsistent with our proposal that expenditures providing for the interoperability of 911 systems with one another and with public safety/first responder radio systems would be acceptable. The Pennsylvania Emergency Management Agency PEMA asserts that the proposed rules imply there is a boundary between acceptable and not acceptable radio system expenses, but it is not clear where the boundary lies.
CoPUC states that the line between acceptable and unacceptable radio equipment is not clear at all and that presumably, radio equipment inside the PSAP is allowed, but everything from the PSAP to the portable radio on a patrol officers utility belt is part of the infrastructure required to dispatch emergency responders.
The issue whether radio system expenditures are acceptable or unacceptable for purposes of section 902 turns on how the Commission interprets the statutory provision that 911 fee expenditures directly support the provision of 911 services. We believe it is important to strike a balance between the opposing views in the record while recognizing the evolving nature of the 911 landscape and the variety of specific issues that could arise. Therefore, we reject as overbroad the proposition that all public safety radio expenditures directly support the provision of 911 services and are therefore acceptable. This is inconsistent with the standard applied in prior 911 fee reports and risks becoming an exception that swallows the rule. However, the test of whether specific radio expenditures directly support the provision of 911 services should be sufficiently flexible to allow
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for innovation and evolution in the 911
environment. For example, acceptable radio expenditures are not necessarily limited to technology inside the PSAP
and could extend to development of integrated communications systems that support 911-related functions such as caller location or that enhance 911
reliability and resiliency. As NENA
points out, the Commissions determinations with respect to edge cases evolve and are clarified over time as the agency is confronted with new quasi911 public safety expenditures. We therefore decline to define a bright line test for applying the rule to specific radio expenditures.
We also find that commenters on both sides of this issue raise arguments that warrant additional consideration in determining where the line should be drawn between acceptable and unacceptable expenditures for public safety radio equipment. Accordingly, we do not specify public safety radio expenditures in our codified list of unacceptable uses, but we adopt our proposal defining expenditures on infrastructure or equipment as unacceptable if they do not directly support providing 911 services. In addition, we refer this issue to the 911
Strike Force for further guidance on how to apply this standardto be delivered to the Commission contemporaneously with its final report to Congressincluding the extent to which radio expenditures should be considered acceptable for purposes of section 902 because they provide for the interoperability of 911 systems with one another and with public safety/first responder radio systems. Finally, we note that the petition for determination process established by the statute provides a mechanism for further consideration of this issue in the context of specific cases after adoption of these rules.
4. Safe Harbor for Multi-Purpose Fee or Charge Background. In the NPRM, we proposed to adopt an elective safe harbor in our rules providing that if a state or taxing jurisdiction collects fees or charges designated for public safety, emergency services, or similar purposes and a portion of those fees goes to the support or implementation of 911 services, the obligation or expenditure of such fees or charges shall not constitute diversion provided that the state or taxing jurisdiction: 1 Specifies the amount or percentage of such fees or charges that is dedicated to 911 services; 2 ensures that the 911 portion of such fees or charges is segregated and not
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