FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 9
6712-01This document is scheduled to be published in theFederal Register on 03/03/2021 and available online atfederalregister.gov/d/2021-04250, and on govinfo.govFEDERAL COMMUNICATIONS COMMISSION47 CFR Part 9[PS Docket Nos. 20-291 and 09-14; FCC 21-25; FRS 17515]911 Fee Diversion; New and Emerging Technologies 911 Improvement Act of 2008AGENCY: Federal Communications Commission.ACTION: Proposed rule.SUMMARY: In this document, the Federal Communications Commission (the FCC orCommission) proposes rules to implement the Don’t Break Up the T-Band Act of 2020, which isSection 902 of the Consolidated Appropriations Act, 2021, Division FF, Title IX (Section 902).Section 902 directs the Commission to issue final rules, not later than 180 days after the date ofenactment of Section 902, designating the uses of 911 fees by states and taxing jurisdictions thatconstitute 911 fee diversion for purposes of certain sections of the United States Code, asamended by Section 902. The intended effect of this notice of proposed rulemaking (NPRM) isto propose rules that implement Section 902 and help to identify those uses of 911 fees by statesand other jurisdictions that support the provision of 911 services.DATES: Comments are due on or before [INSERT DATE 20 DAYS AFTER DATE OFPUBLICATION IN THE FEDERAL REGISTER], and reply comments are due on or before[INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERALREGISTER].ADDRESSES: You may submit comments, identified by PS Docket Nos. 20-291 and 09-14, byany of the following methods: Federal Communications Commission’s website: https://www.fcc.gov/ecfs/. Follow theinstructions for submitting comments. Mail: Parties who choose to file by paper must file an original and one copy of eachfiling. If more than one docket or rulemaking number appears in the caption of this
proceeding, filers must submit two additional copies for each additional docket orrulemaking number. Filings can be sent by commercial overnight courier, or by firstclass or overnight U.S. Postal Service mail. All filings must be addressed to theCommission’s Secretary, Office of the Secretary, Federal Communications Commission.Commercial overnight mail (other than U.S. Postal Service Express Mail and PriorityMail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. PostalService first-class, Express, and Priority mail must be addressed to 45 L Street NE,Washington DC 20554. Effective March 19, 2020, and until further notice, the Commission no longer accepts anyhand or messenger delivered filings. This is a temporary measure taken to help protectthe health and safety of individuals, and to mitigate the transmission of COVID-19. SeeFCC Announces Closure of FCC Headquarters Open Window and Change in HandDelivery Policy, Public Notice, DA 20-304 (March 19, cy.People with Disabilities: To request materials in accessible formats for people with disabilities(Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call theConsumer & Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY).FOR FURTHER INFORMATION CONTACT: Brenda Boykin, Attorney Advisor, Policyand Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-2062,Brenda.Boykin@fcc.gov, or John A. Evanoff, Deputy Division Chief, Policy and LicensingDivision, Public Safety and Homeland Security Bureau, (202) 418-0848, John.Evanoff@fcc.gov.SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s notice ofproposed rulemaking (NPRM), FCC 21-25, in PS Docket Nos. 20-291 and 09-14, adopted andreleased on February 17, 2021. The full text of this document is available athttps://www.fcc.gov/edocs/search-results?t quick&fccdaNo 21-25.
Initial Paperwork Reduction Act of 1995 AnalysisThis notice of proposed rulemaking may contain new or modified informationcollection(s) subject to the Paperwork Reduction Act of 1995 (PRA). If the Commission adoptsany new or modified information collection requirements, they will be submitted to the Office ofManagement and Budget (OMB) for review under section 3507(d) of the PRA. OMB, thegeneral public, and other Federal agencies will be invited to comment on the new or modifiedinformation collection requirements contained in this proceeding. In addition, pursuant to theSmall Business Paperwork Relief Act of 2002, we seek specific comment on how we mightfurther reduce the information collection burden for small business concerns with fewer than 25employees.Pursuant to §§ 1.415 and 1.419 of the Commission’s rules, 47 CFR 1.415, 1.419,interested parties may file comments and reply comments on or before the dates indicated in theDATES section above. Comments may be filed using the Commission’s Electronic CommentFiling System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR24121 (1998), /fcc98056.pdf.The Commission will treat this proceeding as a “permit-but-disclose” proceeding inaccordance with the Commission’s ex parte rules. Persons making ex parte presentations mustfile a copy of any written presentation or a memorandum summarizing any oral presentationwithin 2 business days after the presentation (unless a different deadline applicable to theSunshine period applies). Persons making oral ex parte presentations are reminded thatmemoranda summarizing the presentation must (1) list all persons attending or otherwiseparticipating in the meeting at which the ex parte presentation was made, and (2) summarize alldata presented and arguments made during the presentation. If the presentation consisted inwhole or in part of the presentation of data or arguments already reflected in the presenter’swritten comments, memoranda, or other filings in the proceeding, the presenter may providecitations to such data or arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data or arguments can befound) in lieu of summarizing them in the memorandum. Documents shown or given toCommission staff during ex parte meetings are deemed to be written ex parte presentations andmust be filed consistent with rule § 1.1206(b). In proceedings governed by rule § 1.49(f) or forwhich the Commission has made available a method of electronic filing, written ex partepresentations and memoranda summarizing oral ex parte presentations, and all attachmentsthereto, must be filed through the electronic comment filing system available for that proceeding,and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants inthis proceeding should familiarize themselves with the Commission’s ex parte rules.SYNOPSIS:BackgroundCongress has had a longstanding concern about the practice by some states and localjurisdictions of diverting 911 fees for non-911 purposes. In the ENHANCE 911 Act of 2004,Congress required states and local jurisdictions receiving Federal 911 grants to certify that theywere not diverting 911 funds.1 In the New and Emerging Technologies 911 Improvement Act of2008 (NET 911 Act), Congress enacted additional measures to limit 911 fee diversion, codifiedin 47 U.S.C. 615a-1 (section 615a-1).2 Specifically, section 615a-1(f)(1) provided that nothingin the NET 911 Act, the Communications Act of 1934, or any Commission regulation or order“shall prevent the imposition and collection of a fee or charge applicable to commercial mobileservices or IP-enabled voice services specifically designated by a State, political subdivisionthereof, Indian tribe, or village or regional corporation . . . for the support or implementation of9-1-1 or enhanced 9-1-1 services, provided that the fee or charge is obligated or expended onlyEnsuring Needed Help Arrives Near Callers Employing 911 Act of 2004, Pub. L. 108-494, 118 Stat. 3986(ENHANCE 911 Act) (relevant grant provisions codified at 47 U.S.C. 942). Congress provided another round of 911grant funding, with similar non-diversion requirements, in the NG911 Act. Middle Class Tax Relief and JobCreation Act of 2012, Pub. L. 112-96, 126 Stat. 237, Title VI, Subtitle E, Next Generation 9-1-1 Advancement Actof 2012 (NG911 Act) (relevant grant provisions codified at 47 U.S.C. 942).2 New and Emerging Technologies 911 Improvement Act of 2008, Pub. L. 110-283, 122 Stat. 2620 (NET 911 Act).The NET 911 Act enacted 47 U.S.C. 615a-1 and also amended 47 U.S.C. 222, 615a, 615b, and 942. See 47 U.S.C.615a-1 Editorial Notes.1
in support of 9-1-1 and enhanced 9-1-1 services, or enhancements of such services, as specifiedin the provision of State or local law adopting the fee or charge.”3The NET 911 Act also required the Commission to begin reporting annually on the statusin each state of the collection and distribution of fees for the support or implementation of 911 orE911 services, including findings on the amount of revenues obligated or expended by each state“for any purpose other than the purpose for which any such fees or charges are specified.”4Pursuant to this provision, the Commission has reported annually to Congress on 911 feediversion every year since 2009.5 All 12 of the annual reports issued to date have identifiedsome states that have diverted 911 fees to other uses.In October 2020, the Commission released a Notice of Inquiry seeking comment on theeffects of fee diversion and the most effective ways to dissuade states and jurisdictions fromcontinuing or instituting the diversion of 911/E911 fees.6 Noting that publicly identifyingdiverting states in the Commission’s annual reports has helped discourage the practice but hasnot eliminated fee diversion, the Commission sought comment on whether it could take othersteps to discourage fee diversion, such as conditioning state and local eligibility for FCClicenses, programs, or other benefits on the absence of fee diversion.7 The Commission receivedeight comments and seven reply comments in response to the Notice of Inquiry.8Section 902On December 27, 2020, the President signed the Don’t Break Up the T-Band Act of 2020as part of the Consolidated Appropriations Act, 2021.9 Section 902 of the new legislation47 U.S.C. 615a-1(f)(1) (prior version). Under the NET 911 Act, the Commission’s annual 911 fee report coversstates, as well as U.S. territories and the District of Columbia. See 47 U.S.C. 615a-1(f)(2) (directing theCommission to report on the status “in each State” of the collection and distribution of 911 fees and charges); id. at615b(2) (definition of “State”).4 47 U.S.C. 615a-1(f)(2) (prior version).5 These annual reports can be viewed at https://www.fcc.gov/general/911-fee-reports.6 911 Fee Diversion; New and Emerging Technologies 911 Improvement Act of 2008, PS Docket Nos. 20-291 and09-14, Notice of Inquiry, 35 FCC Rcd 11010, 11010, para. 1 (2020) (Fee Diversion NOI).7 Fee Diversion NOI, 35 FCC Rcd at 11011, 11016, paras. 5, 16.8 These filings can be viewed in the FCC’s electronic comment filing system (ECFS) at https://www.fcc.gov/ecfs/,under PS Docket Nos. 20-291 and 09-14.9 Consolidated Appropriations Act, 2021, Pub. L. 116-260, Division FF, Title IX, Section 902, Don’t Break Up theT-Band Act of 2020 (Section 902).3
requires the Commission to take action to help address the diversion of 911 fees by states andother jurisdictions for purposes unrelated to 911. Specifically, Section 902(c)(1)(C) adds a newparagraph (3)(A) to section 615a-1(f) that directs the Commission to adopt rules “designatingpurposes and functions for which the obligation or expenditure of 9-1-1 fees or charges, by anyState or taxing jurisdiction authorized to impose such a fee or charge, is acceptable” for purposesof Section 902 and the Commission’s rules.10 The newly added section 615a-1(f)(3)(B) statesthat these purposes and functions shall be limited to “the support and implementation of 9-1-1services” provided by or in the state or taxing jurisdiction imposing the fee or charge, and“operational expenses of public safety answering points” within such state or taxingjurisdiction.11 The new section also states that, in designating such purposes and functions, theCommission shall consider the purposes and functions that states and taxing jurisdictions specifyas the intended purposes and functions for their 911 fees or charges, and “determine whethersuch purposes and functions directly support providing 9-1-1 services.”12Section 902 also amends section 615a-1(f)(1) to provide that the rules adopted by theCommission for these purposes will apply to states and taxing jurisdictions that impose 911 feesor charges. Whereas the prior version of section 615a-1(f)(1) referred to fees or charges“obligated or expended only in support of 9-1-1 and enhanced 9-1-1 services, or enhancementsof such services, as specified in the provision of State or local law adopting the fee or charge,”the amended version provides that nothing in the Act, the Communications Act of 1934 (47U.S.C. 151 et seq.), the New and Emerging Technologies 911 Improvement Act of 2008, or anyCommission regulation or order shall prevent the imposition and collection of a fee or chargeapplicable to commercial mobile services or IP-enabled voice services specifically designated bya State, political subdivision thereof, Indian tribe, or village or regional corporation serving aregion established pursuant to the Alaska Native Claims Settlement Act, as amended (85 Stat.47 U.S.C. 615a-1(f)(3)(A) (as amended); sec. 902(c)(1)(C).47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).12 47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).1011
688) for the support or implementation of 911 or enhanced 911 services, provided that the fee orcharge is obligated or expended only in support of 911 and enhanced 911 services, orenhancements of such services, “consistent with the purposes and functions designated in thefinal rules issued under paragraph (3) as purposes and functions for which the obligation orexpenditure of such a fee or charge is acceptable.”13In addition, Section 902(c) establishes a process for states and taxing jurisdictions to seeka determination that a proposed use of 911 fees should be treated as having such an acceptablepurpose or function even if it is for a purpose or function that has not been designated as such inthe Commission’s rules.14 Specifically, newly added section 615a-1(f)(5) provides that a state ortaxing jurisdiction may submit to the Commission a petition for a determination that anobligation or expenditure of a 911 fee or charge “for a purpose or function other than a purposeor function designated under [section 615a-1(f)(3)(A)] should be treated as such a purpose orfunction,” i.e., as acceptable for purposes of this provision and the Commission’s rules. The newsection 615a-1(f)(5) provides that the Commission shall grant the petition if the state or taxingjurisdiction provides sufficient documentation that the purpose or function “(i) supports publicsafety answering point functions or operations,” or “(ii) has a direct impact on the ability of apublic safety answering point to—(I) receive or respond to 9-1-1 calls; or (II) dispatchemergency responders.”8.Section 902(d) requires the Commission to create an “interagency strike force” tostudy “how the Federal Government can most expeditiously end diversion” by states and taxingjurisdictions and to report to Congress on its findings within 270 days of the statute’senactment.15 Section 902(d)(1) provides that if the Commission obtains evidence that “suggeststhe diversion by a State or taxing jurisdiction of 9 1 1 fees or charges,” the Commission shallsubmit such information to the strike force, “including any information regarding the impact of47 U.S.C. 615a-1(f)(1) (as amended) (emphasis added); sec. 902(c)(1)(A).47 U.S.C. 615a-1(f)(5) (as amended); sec. 902(c)(1)(C).15 Sec. 902(d)(3).1314
any underfunding of 9-1-1 services in the State or taxing jurisdiction.”16 Section 902(d)(2)provides that the Commission shall also include evidence it obtains of diversion andunderfunding in future annual fee reports, beginning with the first report “that is required to besubmitted after the date that is 1 year after the date of the enactment of this Act.”17 In addition,Section 902(c)(1)(C) provides that if a state or taxing jurisdiction receives a grant under section158 of the National Telecommunications and Information Administration Organization Act (47U.S.C. 942) after the date of the enactment of the new legislation, “such State or taxingjurisdiction shall, as a condition of receiving such grant, provide the information requested by theCommission to prepare the [annual report to Congress on 911 fees].”18Finally, Section 902(d)(4) prohibits any state or taxing jurisdiction identified as a feediverter in the Commission’s annual report from participating or sending a representative toserve on any committee, panel, or council established to advise the First Responder NetworkAuthority (FirstNet) under 47 U.S.C. 1425(a) or any advisory committee established by theCommission.Section 902 does not impose any requirement on states or taxing jurisdictions to imposeany fee in connection with the provision of 911 service. As revised, the proviso to section615a-1 states that nothing in the Act or the Commission’s rules “shall prevent the imposition andcollection of a fee or charge applicable to commercial mobile services or IP-enabled voiceservices” specifically designated by the taxing jurisdiction “for the support or implementation of9-1-1 or enhanced 9-1-1 services, provided that the fee or charge is obligated or expended onlyin support of 9-1-1 and enhanced 9-1-1 services, or enhancements of such services, consistentwith the purposes and functions designated in [the Commission’s forthcoming rules] as purposesand functions for which the obligation or expenditure of such a fee or charge is acceptable.”19Sec. 902(d)(1).Sec. 902(d)(2). Based on the December 27, 2020 enactment date of Section 902, this requirement will applybeginning with the next annual fee report, due to Congress by December 31, 202118 47 U.S.C. 615a-1(f)(4) (as amended); sec. 902(c)(1)(C).19 47 U.S.C. 615a-1(f)(1) (as amended); sec. 902(c)(1)(A).1617
In this notice of proposed rulemaking, we propose measures to implement Section 902.We seek comment on these measures, which are designed to identify those uses of 911 fees bystates and other jurisdictions that support the provision of 911 services.Definitions and ApplicabilityAs a preliminary matter, we note that Section 902 defines certain terms relating to 911fees and fee diversion. To promote consistency, we propose to codify these definitions in ourrules with certain modifications, as described below. We seek comment on these proposeddefinitions.911 fee or charge. Section 902 defines “9-1-1 fee or charge” as “a fee or chargeapplicable to commercial mobile services or IP-enabled voice services specifically designated bya State or taxing jurisdiction for the support or implementation of 9-1-1 services.”20 We proposeto codify this definition in our rules. However, we note that the statutory definition in Section902 does not address services that may be subject to 911 fees other than Commercial MobileRadio Services (CMRS) and IP-enabled voice services. The reason for this omission is unclear.For example, virtually all states impose 911 fees on wireline telephone services and haveprovided information on such fees for inclusion in the Commission’s annual fee reports. Inaddition, as 911 expands beyond voice to include text and other non-voice applications, statescould choose to extend 911 fees to such services in the future.2147 U.S.C. 615a-1(f)(3)(D)(i) (as amended); sec. 902(c)(1)(C), (f)(1).For example, the Commission has extended 911 obligations to providers of text messaging services. SeeFac
AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, the Federal Communications Commission (the FCC or Commission) proposes rules to implement the Don’t Break Up the T-Band Act of 2020, which is Section 902 of the Consolidated Appropriations Act, 2021, Division FF,
14 CFR Part 11 . 14 CFR Part 300 . 14 CFR Part 302 . 49 CFR Part 5 . 49 CFR Part 7 . 49 CFR Part 106 . 49 CFR Part 211 . 49 CFR Part 389 . 49 CFR Part 553 . 49 CFR Part 601 . RIN 2105-AE84 . Administrative Rulemaking, Guidance, and Enforcement Procedures . AGENCY: Office of the
Federal Communications Commission FCC 21-58 3 section 7402 of the Act, which established a 7.171 billion Emergency Connectivity Fund in the Treasury of the United States.5 Section 7402 directed the Federal Communications Commission (Commission) to promulgate rules providing for the distribution of funding from the Emergency Connectivity Fund to
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