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Federal Register / Vol. 86, No. 156 / Tuesday, August 17, 2021 / Rules and Regulations find that these additions to the rule will help to clarify the scope of acceptable expenditures for PSAP operating costs in the implementation of section 902.
With respect to additional suggestions from commenters for identifying specified uses of 911 funds as acceptable for purposes of Section 902, we do not believe it is necessary to add every specific example to the text of the rules or to attempt further clarification of terms such as operating expenses or interoperability. As we note above, we intend to keep these rules general so that states and taxing jurisdictions have reasonable flexibility to use their good faith judgment in applying the rules to particular circumstances. In addition and as the rules explicitly state, the categories and examples are nonexclusive and are not intended to specify every possible use of 911 fees that would be acceptable. We also note that the petition for determination process provides a mechanism for states and taxing jurisdictions that seek additional guidance in applying the rules to a particular proposal for use of 911 fees.
3. Designation of Unacceptable Purposes and Functions for 911 Expenditures Background. We sought comment in the NPRM on specifying examples of purposes and functions that are not acceptable for the obligation or expenditure of 911 fees or charges for purposes of the statute. We proposed in 9.23c of the rules that such examples would include, but not be limited to, the following:
Transfer of 911 fees into a state or other jurisdictions general fund or other fund for non-911 purposes;
Equipment or infrastructure for constructing or expanding non-public safety communications networks e.g., commercial cellular networks; and 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.

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We noted that identifying these examples as unacceptable expenditures messages, and data to the appropriate public safety answering point and other appropriate emergency entities; E supports data or video communications needs for coordinated incident response and management; and F provides broadband service to public safety answering points or other first responder entities. NC 911 Board Mar. 31, 2021
Reply at 2; 47 U.S.C. 942e5. States and taxing jurisdictions should use this definition if they find it is helpful, but we decline to add it to our rules.
We believe NG911 technology is still evolving and that we lack an adequate record to define it at this time.

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for purposes of the statute is consistent with the manner in which such expenditures have been analyzed in the agencys annual 911 fee reports and sought comment on whether these examples should be codified.18
Decision. We adopt these provisions as proposed in the NPRM, with two minor modifications to 9.23c3, as detailed below. In light of the divided record on using 911 fees for public safety radio systems, we provide additional guidance on when such use of 911 fees will be deemed to have purposes or functions that directly support providing 911 services and so qualifies as acceptable for purposes of avoiding section 902 consequences.
We also seek recommendations from the 911 Strike Force on developing additional specific examples in these regards.
We adopt our proposal to classify as unacceptable for Section 902 purposes the transfer of 911 fees into a general fund or other fund for non-911
purposes. The agencys annual fee reports consistently have found that transferring 911 fees to a states general fund constitutes fee diversion. In addition, no commenter opposes this provision.
We also adopt our proposal that expenditures of 911 fees for constructing or expanding non-public safety communications networks, such as commercial cellular networks, are not acceptable for Section 902 purposes.
This finding is consistent with our approach in the agencys annual 911 fee reports, where the agency has concluded, for example, that construction of commercial cellular towers to expand cellular coverage is not 911 related within the meaning of the NET 911 Act. In the Twelfth Annual Report to Congress on State Collection and Distribution of 911 and Enhanced 911 Fees and Charges, the agency 18 See NPRM at 10, paras. 2425. For example, the annual fee reports have repeatedly found that transferring 911 fees to the states general fund or using 911 fees for the expansion of commercial cellular networks constitutes fee diversion. See NPRM at 11, para. 25. 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.
See NPRM at 11, para. 25. In addition, the agency has found that radio networks used by first responders are technically and operationally distinct from the 911 call-handling system. See NPRM at 11, para. 25. Given our request for comment in the NPRM on such examples in the annual fee reports, we reject contentions such as those raised by Michigan 911 Entities, who argue that the statements in the agencys fee reports on public safety radios were never part of a notice and comment rulemaking and therefore cannot be used as a rationale for adopting rules in this proceeding.
Michigan 911 Entities Mar. 23, 2021 Comments at 1112 & n.6.

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explained that, although expanding cellular coverage enhances the publics ability to call 911, the NET 911 Act focuses on funding the elements of the 911 call-handling system that are operated and paid for by state and local 911 authorities.
Some commenters recommend a more nuanced approach that would allow 911 spending on non-public safety communications networks in certain circumstances. For example, BRETSA
agrees that wireless providers should not require 911 Authorities to subsidize expansion of their coverage with 911 Fees, 19 but expresses concern that 9.23c2 could prevent Colorado from providing diverse paths to currently unprotected Central Offices serving PSAPs due to incidental benefits to wireless providers. Oklahoma 911 contends that expenditures to provide for PSAP
backup during outages should be looked at on a case by case basis at the state and local level, to ensure 911 calls are delivered quickly and appropriately.
We agree that expenditures to provide redundancy, backup, or resiliency in components of the 911 network e.g., components that provide path diversity to PSAPs or support rerouting of 911
traffic in the event of an outage would not be deemed unacceptable under this rule. We also note that the petition for determination process provides a mechanism for states and taxing jurisdictions to seek additional guidance in applying 9.23c2 to a particular proposal for use of 911 fees to meet local needs.
We also adopt with minor modifications our proposal to classify as unacceptable, for purposes of section 19 BRETSA Mar. 23, 2021 Comments at 27.
BRETSA also urges the Commission to focus on the wireless providers, rather than the 911 Authority, when the Commission finds diversion of 911 fees to subsidize commercial wireless towers. BRETSA
notes, for example, that the Bureau has labeled West Virginia a fee diverter for subsidizing construction of wireless towers to extend 911
calling capabilities to areas wireless providers have found or represented are not financially viable or only marginally financially viable to serve, that wireless providers require 911 Authorities to subsidize with 911 Fees their own commercial wireless services within their licensed service areas, and that 911 service is an exception to the rule that providers bear the cost of delivering their customers sic calls. Boulder Regional Emergency Telephone Service Authority Reply, PS Docket Nos.
20291 and 0914, at 1617 rec. Apr. 2, 2021
BRETSA Apr. 2, 2021 Reply; see also BRETSA
Mar. 23, 2021 Comments at 2728 focus should be on the Commissions coverage rules and the actions of the wireless providers rather than on the 911 Authorities who must pay these subsidies for the providers to expand coverage. We refer to the 911 Strike Force for further consideration the issue of whether, and how much, the Commission should focus on wireless providers, rather than 911
authorities, when finding fee diversion for subsidization of commercial wireless towers.

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