[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Proposed Rules]
[Pages 12399-12409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04250]


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FEDERAL COMMUNICATIONS COMMISSION

47 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 2008

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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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, Title IX (Section 902). Section 
902 directs the Commission to issue final rules, not later than 180 
days after the date of enactment of Section 902, designating the uses 
of 911 fees by states and taxing jurisdictions that constitute 911 fee 
diversion for purposes of certain sections of the United States Code, 
as amended by Section 902. The intended effect of this notice of 
proposed rulemaking (NPRM) is to propose rules that implement Section 
902 and help to identify those uses of 911 fees by states and other 
jurisdictions that support the provision of 911 services.

DATES: Comments are due on or before March 23, 2021, and reply comments 
are due on or before April 2, 2021.

ADDRESSES: You may submit comments, identified by PS Docket Nos. 20-291 
and 09-14, by any of the following methods:
     Federal Communications Commission's website: https://www.fcc.gov/ecfs/. Follow the instructions for submitting comments.
     Mail: Parties who choose to file by paper must file an 
original and one copy of each filing. 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 or 
rulemaking number. Filings can be sent by commercial overnight courier, 
or by first-class or overnight U.S. Postal Service mail. All filings 
must be addressed to the Commission's Secretary, Office of the 
Secretary, Federal Communications Commission. Commercial overnight mail 
(other than U.S. Postal Service Express Mail and Priority Mail) must be 
sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal 
Service 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 any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice) or 202-
418-0432 (TTY).

FOR FURTHER INFORMATION CONTACT: Brenda Boykin, Attorney Advisor, 
Policy and Licensing Division, Public Safety and Homeland Security 
Bureau, (202) 418-2062, [email protected], or John A. Evanoff, 
Deputy Division Chief, Policy and Licensing Division, Public Safety and 
Homeland Security Bureau, (202) 418-0848, [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's notice 
of proposed rulemaking (NPRM), FCC 21-25, in PS Docket Nos. 20-291 and 
09-14, adopted and released on February 17, 2021. The full text of this 
document is available at https://www.fcc.gov/edocs/search-results?t=quick&fccdaNo=21-25.

Initial Paperwork Reduction Act of 1995 Analysis

    This notice of proposed rulemaking may contain new or modified 
information collection(s) subject to the Paperwork Reduction Act of 
1995 (PRA). If the Commission adopts any new or modified information 
collection requirements, they will be submitted to the Office of 
Management and Budget (OMB) for review under section 3507(d) of the 
PRA. OMB, the general public, and other Federal agencies will be 
invited to comment on the new or modified information collection 
requirements contained in this proceeding. In addition, pursuant to the 
Small Business Paperwork Relief Act of 2002, we seek specific comment 
on how we might further reduce the information collection burden for 
small business concerns with fewer than 25 employees.
    Pursuant to Sec. Sec.  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 the DATES section above. 
Comments may be filed using the Commission's Electronic Comment Filing 
System (ECFS). See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121 (1998), https://transition.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.
    The Commission will treat this proceeding as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making ex parte presentations must file a copy of any 
written presentation or a memorandum summarizing any oral presentation 
within 2 business days after the presentation (unless a different 
deadline applicable to the Sunshine period applies). Persons making 
oral ex parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda, or other filings in the 
proceeding, the presenter may provide citations 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 be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule Sec.  1.1206(b). In proceedings governed 
by rule Sec.  1.49(f) or for which the Commission has made available a 
method of electronic filing, written ex parte presentations and 
memoranda summarizing oral ex parte presentations, and all attachments 
thereto, 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 in this 
proceeding should familiarize themselves with the Commission's ex parte 
rules.

[[Page 12400]]

Synopsis

Background

    Congress has had a longstanding concern about the practice by some 
states and local jurisdictions 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 they 
were not diverting 911 funds.\1\ In the New and Emerging Technologies 
911 Improvement Act of 2008 (NET 911 Act), Congress enacted additional 
measures to limit 911 fee diversion, codified in 47 U.S.C. 615a-1 
(section 615a-1).\2\ Specifically, section 615a-1(f)(1) provided that 
nothing in 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 mobile services 
or IP-enabled voice services specifically designated by a State, 
political subdivision thereof, Indian tribe, or village or regional 
corporation . . . for the support or implementation of 9-1-1 or 
enhanced 9-1-1 services, provided that the fee or charge is obligated 
or expended only in support of 9-1-1 and enhanced 9-1-1 services, or 
enhancements of such services, as specified in the provision of State 
or local law adopting the fee or charge.'' \3\
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    \1\ Ensuring Needed Help Arrives Near Callers Employing 911 Act 
of 2004, Public Law 108-494, 118 Stat. 3986 (ENHANCE 911 Act) 
(relevant grant provisions codified at 47 U.S.C. 942). Congress 
provided another round of 911 grant funding, with similar non-
diversion requirements, in the NG911 Act. Middle Class Tax Relief 
and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 237, 
Title VI, Subtitle E, Next Generation 9-1-1 Advancement Act of 2012 
(NG911 Act) (relevant grant provisions codified at 47 U.S.C. 942).
    \2\ New and Emerging Technologies 911 Improvement Act of 2008, 
Public Law 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.
    \3\ 47 U.S.C. 615a-1(f)(1) (prior version). Under the NET 911 
Act, the Commission's annual 911 fee report covers states, as well 
as U.S. territories and the District of Columbia. See 47 U.S.C. 
615a-1(f)(2) (directing the Commission to report on the status ``in 
each State'' of the collection and distribution of 911 fees and 
charges); id. at 615b(2) (definition of ``State'').
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    The NET 911 Act also required the Commission to begin reporting 
annually on the status in each state of the collection and distribution 
of fees for the support or implementation of 911 or E911 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.'' \4\ Pursuant to this provision, the 
Commission has reported annually to Congress on 911 fee diversion every 
year since 2009.\5\ All 12 of the annual reports issued to date have 
identified some states that have diverted 911 fees to other uses.
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    \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.
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    In October 2020, the Commission released a Notice of Inquiry 
seeking comment on the effects of fee diversion and the most effective 
ways to dissuade states and jurisdictions from continuing or 
instituting the diversion of 911/E911 fees.\6\ Noting that publicly 
identifying diverting states in the Commission's annual reports has 
helped discourage the practice but has not eliminated fee diversion, 
the Commission sought comment on whether it could take other steps to 
discourage fee diversion, such as conditioning state and local 
eligibility for FCC licenses, programs, or other benefits on the 
absence of fee diversion.\7\ The Commission received eight comments and 
seven reply comments in response to the Notice of Inquiry.\8\
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    \6\ 911 Fee Diversion; New and Emerging Technologies 911 
Improvement Act of 2008, PS Docket Nos. 20-291 and 09-14, 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.
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Section 902

    On December 27, 2020, the President signed the Don't Break Up the 
T-Band Act of 2020 as part of the Consolidated Appropriations Act, 
2021.\9\ Section 902 of the new legislation requires the Commission to 
take action to help address the diversion of 911 fees by states and 
other jurisdictions for purposes unrelated to 911. Specifically, 
Section 902(c)(1)(C) adds a new paragraph (3)(A) to section 615a-1(f) 
that directs the Commission to adopt rules ``designating purposes and 
functions for which the obligation or expenditure of 9-1-1 fees or 
charges, by any State or taxing jurisdiction authorized to impose such 
a fee or charge, is acceptable'' for purposes of Section 902 and the 
Commission's rules.\10\ The newly added section 615a-1(f)(3)(B) states 
that these purposes and functions shall be limited to ``the support and 
implementation of 9-1-1 services'' 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 
taxing jurisdiction.\11\ The new section also states that, in 
designating such purposes and functions, the Commission shall consider 
the purposes and functions that states and taxing jurisdictions specify 
as the intended purposes and functions for their 911 fees or charges, 
and ``determine whether such purposes and functions directly support 
providing 9-1-1 services.'' \12\
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    \9\ Consolidated Appropriations Act, 2021, Public Law 116-260, 
Division FF, Title IX, Section 902, Don't Break Up the T-Band Act of 
2020 (Section 902).
    \10\ 47 U.S.C. 615a-1(f)(3)(A) (as amended); sec. 902(c)(1)(C).
    \11\ 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).
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    Section 902 also amends section 615a-1(f)(1) to provide that the 
rules adopted by the Commission for these purposes will apply to states 
and taxing jurisdictions that impose 911 fees or 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 enhancements of 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 (47 U.S.C. 151 et seq.), the New and Emerging Technologies 
911 Improvement Act of 2008, or any Commission regulation or order 
shall prevent the imposition and collection of a fee or charge 
applicable to commercial mobile services or IP-enabled voice services 
specifically designated by a State, political subdivision thereof, 
Indian tribe, or village or regional corporation serving a region 
established pursuant to the Alaska Native Claims Settlement Act, as 
amended (85 Stat. 688) for the support or implementation of 911 or 
enhanced 911 services, provided that the fee or charge is obligated or 
expended only in support of 911 and enhanced 911 services, or 
enhancements of such services, ``consistent with the purposes and 
functions designated in the final rules issued under paragraph (3) as 
purposes and functions for which the obligation or expenditure of such 
a fee or charge is acceptable.'' \13\
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    \13\ 47 U.S.C. 615a-1(f)(1) (as amended) (emphasis added); sec. 
902(c)(1)(A).
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    In addition, Section 902(c) establishes a process for states and 
taxing jurisdictions to seek a determination that a proposed use of 911 
fees should be treated as having such an acceptable purpose or function 
even if it is for a purpose or function that has not been designated as 
such in the Commission's

[[Page 12401]]

rules.\14\ Specifically, newly added section 615a-1(f)(5) provides that 
a state or taxing jurisdiction may submit to the Commission a petition 
for a determination that an obligation or expenditure of a 911 fee or 
charge ``for a purpose or function other than a purpose or function 
designated under [section 615a-1(f)(3)(A)] should be treated as such a 
purpose or function,'' i.e., as acceptable for purposes of this 
provision and the Commission's rules. The new section 615a-1(f)(5) 
provides that the Commission shall grant the petition if the state or 
taxing jurisdiction provides sufficient documentation that the purpose 
or function ``(i) supports public safety answering point functions or 
operations,'' or ``(ii) has a direct impact on the ability of a public 
safety answering point to--(I) receive or respond to 9-1-1 calls; or 
(II) dispatch emergency responders.''
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    \14\ 47 U.S.C. 615a-1(f)(5) (as amended); sec. 902(c)(1)(C).
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    8. Section 902(d) requires the Commission to create an 
``interagency strike force'' to study ``how the Federal Government can 
most expeditiously end diversion'' by states and taxing jurisdictions 
and to report to Congress on its findings within 270 days of the 
statute's enactment.\15\ Section 902(d)(1) provides that if the 
Commission obtains evidence that ``suggests the diversion by a State or 
taxing jurisdiction of 9-1-1 fees or charges,'' the Commission shall 
submit such information to the strike force, ``including any 
information regarding the impact of 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 
and underfunding in future annual fee reports, beginning with the first 
report ``that is required to be submitted 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 section 158 of the National Telecommunications 
and Information Administration Organization Act (47 U.S.C. 942) after 
the date of the enactment of the new legislation, ``such State or 
taxing jurisdiction shall, as a condition of receiving such grant, 
provide the information requested by the Commission to prepare the 
[annual report to Congress on 911 fees].'' \18\
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    \15\ Sec. 902(d)(3).
    \16\ Sec. 902(d)(1).
    \17\ Sec. 902(d)(2). Based on the December 27, 2020 enactment 
date of Section 902, this requirement will apply beginning with the 
next annual fee report, due to Congress by December 31, 2021.
    \18\ 47 U.S.C. 615a-1(f)(4) (as amended); sec. 902(c)(1)(C).
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    Finally, Section 902(d)(4) prohibits any state or taxing 
jurisdiction identified as a fee diverter in the Commission's annual 
report from participating or sending a representative to serve on any 
committee, panel, or council established to advise the First Responder 
Network Authority (FirstNet) under 47 U.S.C. 1425(a) or any advisory 
committee established by the Commission.
    Section 902 does not impose any requirement on states or taxing 
jurisdictions to impose any fee in connection with the provision of 911 
service. As revised, the proviso to section 615a-1 states that nothing 
in the Act or the Commission's rules ``shall prevent the imposition and 
collection of a fee or charge applicable to commercial mobile services 
or IP-enabled voice services'' specifically designated by the taxing 
jurisdiction ``for the support or implementation of 9-1-1 or enhanced 
9-1-1 services, provided that the fee or charge is obligated or 
expended only in support of 9-1-1 and enhanced 9-1-1 services, or 
enhancements of such services, consistent with the purposes and 
functions designated in [the Commission's forthcoming rules] as 
purposes and functions for which the obligation or expenditure of such 
a fee or charge is acceptable.'' \19\
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    \19\ 47 U.S.C. 615a-1(f)(1) (as amended); sec. 902(c)(1)(A).
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    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 by states and other 
jurisdictions that support the provision of 911 services.

Definitions and Applicability

    As a preliminary matter, we note that Section 902 defines certain 
terms relating to 911 fees and fee diversion. To promote consistency, 
we propose to codify these definitions in our rules with certain 
modifications, as described below. We seek comment on these proposed 
definitions.
    911 fee or charge. Section 902 defines ``9-1-1 fee or charge'' as 
``a fee or charge applicable to commercial mobile services or IP-
enabled voice services specifically designated by a State or taxing 
jurisdiction for the support or implementation of 9-1-1 services.'' 
\20\ We propose to codify this definition in our rules. However, we 
note that the statutory definition in Section 902 does not address 
services that may be subject to 911 fees other than Commercial Mobile 
Radio 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 have provided information on 
such fees for inclusion in the Commission's annual fee reports. In 
addition, as 911 expands beyond voice to include text and other non-
voice applications, states could choose to extend 911 fees to such 
services in the future.\21\
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    \20\ 47 U.S.C. 615a-1(f)(3)(D)(i) (as amended); sec. 
902(c)(1)(C), (f)(1).
    \21\ For example, the Commission has extended 911 obligations to 
providers of text messaging services. See Facilitating the 
Deployment of Text-to-911 and Other Next Generation 911 
Applications; Framework for Next Generation 911 Deployment, PS 
Docket Nos. 10-255 and 11-153, Report and Order, 78 FR 32169 (May 
29, 2013), 28 FCC Rcd 7556 (2013) (requiring covered text providers 
to provide consumers attempting to send a text to 911 with an 
automatic bounce-back message when the service is unavailable); 
Facilitating the Deployment of Text-to-911 and Other Next Generation 
911 Applications; Framework for Next Generation 911 Deployment, PS 
Docket Nos. 11-153 and 10-255, Second Report and Order and Third 
Further Notice of Proposed Rulemaking, 79 FR 55367 (Sept. 16, 2014) 
and 79 FR 55413 (Sept. 16, 2014), 29 FCC Rcd 9846 (2014) (requiring 
covered text providers to implement text-to-911 service no later 
than June 30, 2015 or six months from the date of a public safety 
answering point's (PSAP's) request, whichever is later). Further, in 
RAY BAUM'S Act, which directed the Commission to consider adopting 
rules to ensure that dispatchable location is conveyed with 911 
calls, Congress specifically defined the term ``9-1-1 call'' to 
include a voice call ``or a message that is sent by other means of 
communication.'' See Consolidated Appropriations Act, 2018, Public 
Law 115-141, 132 Stat. 348, Division P, Repack Airwaves Yielding 
Better Access for Users of Modern Services Act of 2018 (RAY BAUM'S 
Act) sec. 506(c)(1) (codified at 47 U.S.C. 615 Notes).
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    To promote regulatory parity and avoid gaps that could 
inadvertently frustrate the rapid deployment of effective 911 services, 
including advanced Next Generation 911 (NG911) services, we propose to 
define ``911 fee or charge'' in our rules to include fees or charges 
applicable to ``other emergency communications services'' as defined in 
section 201(b) of the NET 911 Act. Under the NET 911 Act, the term 
``other emergency communications service'' means ``the provision of 
emergency information to a public safety answering point via wire or 
radio communications, and may include 9-1-1 and enhanced 9-1-1 
service.'' \22\ The proposed modification will make clear that the 
rules in subpart I extend to all communications services regulated by 
the Commission that provide emergency communications, including 
wireline services, and not just to commercial mobile services and IP-
enabled voice services.
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    \22\ NET 911 Act sec. 201(b), codified at 47 U.S.C. 615b(8).

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[[Page 12402]]

    We tentatively conclude that adoption of this proposed expanded 
definition of ``911 fee or charge'' is reasonably ancillary to the 
Commission's effective performance of its statutorily mandated 
responsibilities under Section 902 and other Federal 911-related 
statutes that, taken together, establish an overarching Federal 
interest in ensuring the effectiveness of the 911 system. The 
Commission's general jurisdictional grant includes the responsibility 
to set up and maintain a comprehensive and effective 911 system, 
encompassing a variety of communication services in addition to CMRS 
and IP-enabled voice services. Section 251(e)(3) of the Communications 
Act of 1934, which directs the Commission to designate 911 as the 
universal emergency telephone number, states that the designation of 
911 ``shall apply to both wireline and wireless telephone service,'' 
which evidences Congress's intent to grant the Commission broad 
authority over different types of communications services in the 911 
context.\23\ Similarly, RAY BAUM'S Act directed the Commission to 
consider adopting rules to ensure that dispatchable location is 
conveyed with 911 calls ``regardless of the technological platform 
used.'' \24\ In addition, section 615a-1(e)(2) provides that the 
Commission ``shall enforce this section as if this section was a part 
of the Communications Act of 1934 [47 U.S.C. 151 et seq.]'' and that 
``[f]or purposes of this section, any violations of this section, or 
any regulations promulgated under this section, shall be considered to 
be a violation of the Communications Act of 1934 or a regulation 
promulgated under that Act, respectively.'' \25\
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    \23\ 47 U.S.C. 251(e)(3). Section 251(e)(3) was added as part of 
the Wireless Communications and Public Safety Act of 1999, Public 
Law 106-81, 113 Stat. 1286 (1999) (911 Act), which established 911 
as the national emergency number and required the Commission to 
provide for appropriate transition periods for areas in which 911 
was not in use. Congress broadly stated the purpose of the 911 Act 
as ``to encourage and facilitate the prompt deployment throughout 
the United States of a seamless, ubiquitous, and reliable end-to-end 
infrastructure for communications, including wireless 
communications, to meet the Nation's public safety and other 
communications needs.'' 911 Act sec. 2(b), codified at 47 U.S.C. 615 
Notes.
    \24\ RAY BAUM'S Act sec. 506(a).
    \25\ 47 U.S.C. 615a-1(e)(2).
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    Based on the foregoing, we tentatively conclude that including 
``other emergency communications services'' within the scope of the 
definition of 911 fees we propose is also reasonably ancillary to the 
Commission's effective performance of its statutorily mandated 
responsibilities for ensuring that the 911 system, including 911, E911, 
and NG911 calls and texts from any type of service, is available, that 
these 911 services function effectively, and that 911 fee diversion by 
states and other jurisdictions does not detract from these critical, 
statutorily recognized purposes. Diverting fees collected for 911 
service of any type, whether it be wireline, wireless, IP based, or 
text, undermines the purpose of these Federal statutes by depriving the 
911 system of the funds it needs to function effectively and to 
modernize 911 operations.\26\ We seek comment on this tentative 
conclusion and on the extent to which our proposed rules would 
strengthen the effectiveness of a nationwide 911 service.
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    \26\ The 2016 report of the Task Force on Optimal PSAP 
Architecture (TFOPA) recounted how fee diversion practices have 
``delayed plans in several states to meet the deployment schedule 
for the transition to an NG9-1-1 system.'' See FCC, Task Force on 
Optimal PSAP Architecture, Adopted Final Report at 154 (2016) (TFOPA 
Report), https://transition.fcc.gov/pshs/911/TFOPA/TFOPA_FINALReport_012916.pdf; see generally FCC, Legal and 
Regulatory Framework for Next Generation 911 Services, Report and 
Recommendations, at Sec. 4.1.4 (2013), https://www.911.gov/pdf/FCC_Report_Legal_Regulatory_Framework_NG911_Services_2013.pdf. Other 
commenters have noted instances of fee diversion resulting in the 
delay of 911 improvements. See New Jersey Wireless Association Reply 
Comments to Tenth Report, PS Docket No. 09-14, at 2 (rec. Feb. 12, 
2019) (noting that instead of upgrading to NG911 technology, New 
Jersey is maintaining a 911 selective router system that is ``past 
its useful life and is now costing more to maintain from previous 
years, due to its obsolescence''); Letter from Matthew Grogan, 1st 
Vice President, Nevada APCO at 1 (Feb. 15, 2019) (noting that Nevada 
911 funds have been used to purchase police body cameras at a time 
when ``several counties and jurisdictions . . . are still not 
equipped with enhanced 9-1-1 services''), https://www.leg.state.nv.us/App/NELIS/REL/80th2019/ExhibitDocument/OpenExhibitDocument?exhibitId=36516&fileDownloadName=SB%2025_Testimony%20in%20Opposition_Matthew%20Grogan%20Nevada%20Fee%20Diversion.pdf.
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    In addition, we seek comment on extending the definition of ``911 
fee or charge'' to include fees or charges designated for the support 
of ``public safety,'' ``emergency services,'' or similar purposes if 
the purposes or allowable uses of such fees or charges include the 
support or implementation of 911 services.\27\ This would be consistent 
with the approach taken in the agency's annual fee reports, which found 
that the mere labelling of a fee is not dispositive and that one must 
examine the underlying purpose of the fee to determine whether it is 
(or includes) a 911 fee within the meaning of the NET 911 Act.\28\ We 
seek comment on these conclusions.
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    \27\ We also propose a safe harbor in the rules providing that 
the obligation or expenditure of such fees or charges will not 
constitute diversion so long as 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 commingled with any other 
funds; and (3) obligates or expends the 911 portion of such fees or 
charges for acceptable purposes and functions as defined under this 
section.
    \28\ E.g., FCC, Twelfth Annual Report to Congress on State 
Collection and Distribution of 911 and Enhanced 911 Fees and Charges 
at 51-52, para. 31 (2020) (Twelfth Report), https://www.fcc.gov/files/12thannual911feereport2020pdf (``We do not agree that a fee or 
charge must be exclusively designated for 911 or E911 purposes in 
order to constitute a fee or charge `for the support or 
implementation of 9-1-1 or enhanced 9-1-1 services' under section 
6(f)(1) of the NET 911 Act.''); see also FCC, Eleventh Annual Report 
to Congress on State Collection and Distribution of 911 and Enhanced 
911 Fees and Charges at 43, para. 34 (2019) (Eleventh Report), 
https://www.fcc.gov/files/11thannual911feereport2019pdf.
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    We propose that for purposes of implementing Section 902, our 
definition of ``911 fee or charge'' should similarly extend to fees or 
charges that are expressly identified by the state or taxing 
jurisdiction as supporting 911, even if the fee is not labelled as a 
911 fee. We tentatively conclude that this is consistent with the 
purpose of Section 902 with respect to diversion of 911 fees and 
charges. We seek comment on this proposal. Does the proposed definition 
of 911 fees or charges capture the universe of 911 fees or charges that 
can be diverted? Is the definition overinclusive or underinclusive? Are 
there other modifications to the definition that would help to prevent 
911 fee diversion?
    Diversion. Section 902(f)(4) defines ``diversion'' as, with respect 
to a 911 fee or charge, the obligation or expenditure of such fee or 
charge for a purpose or function other than the purposes and functions 
designated in the final rules issued under paragraph (3) of section 
6(f) of the Wireless Communications and Public Safety Act of 1999, as 
added by this Act, as purposes and functions for which the obligation 
or expenditure of such a fee or charge is acceptable.
    We propose to codify this definition, with minor changes to 
streamline it. Specifically, we propose to define diversion as ``[t]he 
obligation or expenditure of a 911 fee or charge for a purpose or 
function other than the purposes and functions designated by the 
Commission as acceptable pursuant to [the applicable rule section in 
subpart I].'' In addition, we propose to clarify that diversion also 
includes distribution of 911 fees to a political subdivision that 
obligates or expends such fees for a purpose or function other than 
those designated by the Commission. We believe this provision will 
clarify that states and taxing jurisdictions are also responsible for 
diversion of 911 fees by political subdivisions, such as counties, that 
may receive 911 fees. We seek comment on these proposals.

[[Page 12403]]

    State or taxing jurisdiction. Section 902 defines a state or taxing 
jurisdiction as ``a State, political subdivision thereof, Indian Tribe, 
or village or regional corporation serving a region established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.).'' \29\ We propose to codify this definition in our rules. We 
note that the existing language in section 615a-1 directs the 
Commission to submit an annual report to Congress on the use of 911 
fees by ``each State or political subdivision thereof,'' and Section 
902 does not revise this language. We also note that Section 902 does 
not alter the definition of ``State'' in the existing legislation. 
Under section 615b, the term ``State'' means ``any of the several 
States, the District of Columbia, or any territory or possession of the 
United States.'' \30\ Accordingly, provisions in subpart I that apply 
to any ``State or taxing jurisdiction'' would apply to the District of 
Columbia and any United States territory or possession as well. To 
clarify this and to assist users of the regulations, we propose to add 
the definition of ``State'' to subpart I.
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    \29\ 47 U.S.C. 615a-1(f)(3)(D)(iii) (as amended); sec. 
902(c)(1)(C), (f)(5).
    \30\ 47 U.S.C. 615b(2).
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    Regarding the scope of proposed subpart I, we propose that the 
rules apply to states or taxing jurisdictions that collect 911 fees or 
charges (as defined in that subpart) from commercial mobile services, 
IP-enabled voice services, and other emergency communications services. 
And as the proposed definitions make clear, such fees or charges would 
include fees or charges designated for the support of public safety, 
emergency services, or similar purposes if the purposes or allowable 
uses of such fees or charges include the support or implementation of 
911 services. We seek comment on these proposals.

A. Designation of Obligations or Expenditures Acceptable for Purposes 
of Section 902

    Section 902 requires the Commission to issue rules ``designating 
purposes and functions for which the obligation or expenditure of 9-1-1 
fees or charges, by any State or taxing jurisdiction authorized to 
impose such a fee or charge, is acceptable'' for purposes of the 
statute. In addition, Section 902 provides that the purposes and 
functions designated as acceptable for such purposes ``shall be limited 
to the support and implementation of 9-1-1 services 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 taxing jurisdiction.'' \31\ Section 902 also provides that the 
Commission shall consider the purposes and functions that states and 
taxing jurisdictions specify as their intended purposes and ``determine 
whether such purposes and functions directly support providing 9-1-1 
services.'' \32\ Moreover, Section 902 provides states and taxing 
authorities with the right to file a petition with the Commission for a 
determination that an obligation or expenditure of a 911 fee or charge 
that is imposed for a purpose or function other than those designated 
as acceptable for purposes of the statute in the Commission rules 
should nevertheless be treated as having an acceptable purpose or 
function for such purposes.\33\
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    \31\ 47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).
    \32\ 47 U.S.C. 615a-1(f)(3)(B) (as amended); sec. 902(c)(1)(C).
    \33\ 47 U.S.C. 615a-1(f)(5)(A) (as amended); Section 
902(c)(1)(C). Such a petition must be granted if the Commission 
finds that the State or taxing jurisdiction has provided sufficient 
documentation to demonstrate that the purpose or function in 
question supports PSAP functions or operations, or that the purpose 
or function has a direct impact on the ability of a PSAP to receive 
or respond to 911 calls or to dispatch emergency responders. Id.
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    We propose to codify the statutory standard for acceptable purposes 
and functions for the obligation or expenditure of 911 fees or charges 
by providing that acceptable purposes and functions for purposes of the 
statute are limited to (1) support and implementation of 911 services 
provided by or in the state or taxing jurisdiction imposing the fee or 
charge, and (2) operational expenses of PSAPs within such state or 
taxing jurisdiction. This proposed language tracks the language in 
Section 902. In addition, we propose to specify in the rules that 
examples of such acceptable purposes and functions include, but are not 
limited to, the following, provided that the state or taxing 
jurisdiction can adequately document that it has obligated or spent the 
fees or charges in question for these purposes and functions:
    (1) PSAP operating costs, including lease, purchase, maintenance, 
and upgrade of customer premises equipment (CPE) (hardware and 
software), computer aided dispatch (CAD) equipment (hardware and 
software), and the PSAP building/facility;
    (2) PSAP personnel costs, including telecommunicators' salaries and 
training;
    (3) PSAP administration, including costs for administration of 911 
services and travel expenses associated with the provision of 911 
services;
    (4) Integrating public safety/first responder dispatch and 911 
systems, including lease, purchase, maintenance, and upgrade of CAD 
hardware and software to support integrated 911 and public safety 
dispatch operations; and
    (5) Providing for the interoperability of 911 systems with one 
another and with public safety/first responder radio systems.
    We believe these purposes and functions are consistent with the 
general standard for designating acceptable uses of 911 fees and 
charges set out in Section 902. They also are consistent with the 
Commission's past analysis of 911 fee diversion in its annual fee 
reports, and, as required under Section 902, they reflect the 
Commission's consideration of the purposes and functions that states 
have specified for their 911 fees and charges. In particular, the 
Commission has stated in its annual fee reports that the requisite 
nexus to 911 includes expenditures that (1) support PSAP functions or 
operations, (2) have a reasonable nexus to PSAPs' ability to receive 
911 calls and/or dispatch emergency responders, or (3) relate to 
communications infrastructure that connects PSAPs (or otherwise ensures 
the reliable reception and processing of emergency calls and their 
dispatch to first responders).\34\ In addition, the Commission has 
stated that expenses associated with integrating public safety dispatch 
and 911 systems (e.g., purchase of CAD hardware and software to support 
integrated 911 and dispatch operations) may be 911 related, provided 
the state or other jurisdiction can document a connection to 911.\35\ 
We seek comment on our proposed inclusion of these examples of 
acceptable purposes and functions and any additional examples that 
should be specified in the rules.
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    \34\ See FCC, Tenth Annual Report to Congress on State 
Collection and Distribution of 911 and Enhanced 911 Fees and Charges 
at 49, para. 40 (2018) (Tenth Report), https://www.fcc.gov/files/10thannual911feereporttocongresspdf. Under this analysis, funding 
for 911 dispatcher salaries and training would have a sufficient 
nexus to 911, but equipment and infrastructure for law enforcement, 
firefighters, and other first responders generally would not. See 
also Eleventh Report at 74, para. 59 (``CTIA supports the Commission 
in requiring documentation sufficient to demonstrate that the 
expenditures (1) support PSAP functions or operations, (2) have a 
reasonable nexus to PSAPs' ability to receive 9-1-1 calls and/or 
dispatch emergency responders, or (3) relate to communications 
infrastructure that connects PSAPs.'').
    \35\ See Twelfth Report at 48-49, para. 26; Eleventh Report at 
39, para. 26; Tenth Report at 42, para. 26.
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    We also seek comment on specifying certain examples of purposes and

[[Page 12404]]

functions that are not acceptable for the obligation or expenditure of 
911 fees or charges for purposes of the statute. These would include, 
but are not limited to:
    (1) Transfer of 911 fees into a state or other jurisdiction's 
general fund or other fund for non-911 purposes;
    (2) Equipment or infrastructure for constructing or expanding non-
public safety communications networks (e.g., commercial cellular 
networks); and
    (3) 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.
    Identifying these examples as unacceptable expenditures for 
purposes of the statute is consistent with the manner in which such 
expenditures were analyzed in our annual 911 fee reports. For example, 
the fee reports have repeatedly found that transferring 911 fees to the 
state's general fund or using 911 fees for the expansion of commercial 
cellular networks constitutes fee diversion.\36\ 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.\37\ The Eleventh Report explained that the purchase or 
upgrade of public safety radio equipment was not considered to be 911 
related because ``radio networks used by first responders are 
technically and operationally distinct from the 911 call-handling 
system.'' \38\ We seek comment on whether we should reexamine any of 
these prior findings in light of the impact of the coronavirus pandemic 
on public safety and emergency communications services, if any.
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    \36\ E.g., Twelfth Report at 52-54, paras. 32, 35, 37; Eleventh 
Report at 40, 42-43, paras. 28, 32, 35; Tenth Report at 43-44, 46-
47, paras. 30, 32, 35, 37.
    \37\ See Twelfth Report at 48-49, para. 26; Eleventh Report at 
39, para. 26; Tenth Report at 42, para. 26.
    \38\ See Eleventh Report at 42, para. 32; see also Eleventh 
Report at 44, para. 37 (finding that there was no 911 fee diversion 
where Virginia allocated a portion of its wireless E911 funding to 
the Virginia State Police for costs incurred for answering wireless 
911 telephone calls and to support sheriff's 911 dispatchers).
---------------------------------------------------------------------------

    Our proposed designation of acceptable purposes and functions for 
purposes of the statute is also consistent with the legislative history 
of the NET 911 Act. In its report on H.R. 3403 (the bill that was 
enacted as the NET 911 Act), the House Committee on Energy and Commerce 
noted that several states were known to be using 911 fees for 
``purposes other than 911 or emergency communications services.'' \39\ 
The Report also noted that under subsection 6(f) of the proposed 
legislation, ``[s]tates and their political subdivisions should use 911 
or E-911 fees only for direct improvements to the 911 system. Such 
improvements could include improving the technical and operational 
aspects of PSAPs; establishing connections between PSAPs and other 
public safety operations, such as a poison control center; or 
implementing the migration of PSAPs to an IP-enabled emergency 
network.'' Further, ``[t]his provision is not intended to allow 911 or 
E-911 fees to be used for other public safety activities that, although 
potentially worthwhile, are not directly tied to the operation and 
provision of emergency services by the PSAPs.'' \40\
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    \39\ House of Representatives Committee on Energy and Commerce, 
Report on 911 Modernization and Public Safety Act of 2007, H. Rept. 
110-442 at 11 (2007) (H. Rept. 110-442), https://www.congress.gov/110/crpt/hrpt442/CRPT-110hrpt442.pdf (``The most recent data 
available indicate that four states use 911 fees, including wireless 
and wireline fees, for purposes other than 911 or emergency 
communications services.'').
    \40\ H. Rept. 110-442 at 15.
---------------------------------------------------------------------------

    We seek comment on our proposed designation of acceptable purposes 
and functions under the statute. Are the proposed purposes and 
functions that would be deemed acceptable overinclusive or 
underinclusive? If the proposed purposes are overinclusive, commenters 
should explain how and why. What purposes and functions have states and 
taxing jurisdictions specified as the intended functions for 911 fees 
and charges, and how should we take these specifications into account 
as we designate acceptable purposes and functions under Section 902? 
CTIA contends that allowable 911 expenditures should include the 
nonrecurring costs of establishing a 911 system, the costs of emergency 
telephone and dispatch equipment, and costs for training for 
maintenance and operation of the 911 system but should exclude costs 
for leasing real estate, cosmetic remodeling of facilities, salaries or 
benefits, or emergency vehicles.\41\ The Commission has found in its 
911 fee reports, however, that some PSAP overhead costs, such as 911 
telecommunicator salaries, are 911 related.\42\ To the extent that the 
proposed purposes and functions are underinclusive, commenters should 
identify what additional purposes and functions should be deemed 
acceptable, and why.
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    \41\ CTIA Comments on Fee Diversion NOI at 5-6 (rec. Nov. 2, 
2020).
    \42\ See, e.g., Eleventh Report at 21, para. 18; Tenth Report at 
44-45, para. 33.
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    We also propose to define acceptable purposes and functions under 
Section 902 for states and taxing jurisdictions that impose multi-
purpose fees or charges intended to support 911 services as well as 
other public safety purposes. In such instances, we believe states and 
taxing jurisdictions should have the flexibility to apportion the 
collected funds between 911 related and non-911 related programs, but 
that safeguards are needed to ensure that such apportionment is not 
subject to manipulation that would constitute fee diversion. We 
therefore propose to adopt a safe harbor in our rules providing that 
the obligation or expenditure of such fees or charges will not 
constitute diversion so long as 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 commingled with any other funds; 
and (3) obligates or expends the 911 portion of such fees or charges 
for acceptable purposes and functions as defined under this section. 
This provision would provide transparency in the use of 911 fees when a 
state or taxing jurisdiction collects a fee for both 911 and non-911 
purposes. It would also enable the Commission to verify through the 
annual fee report data collection that the 911 portion of such fees or 
charges is not being diverted.
    We seek comment on our proposal for determining whether there is 
diversion of a fee or charge collected for both 911 and non-911 
purposes. Are the measures we propose sufficient to provide 
transparency with respect to diversion in the use of such fees? Are 
there other measures that would help ensure that 911 fees or charges 
are fully traceable in states or taxing jurisdictions with such funding 
mechanisms? In addition, some state laws and regulations provide that 
any excess 911 funds left over after all 911 expenditures have been 
covered can be used for non-911 related purposes.\43\ Similarly, some 
state laws and regulations provide that if the 911 service is 
discontinued, the remaining 911 funds can be disbursed to non-911 uses, 
such as a general fund. Does the existence or implementation of

[[Page 12405]]

such provisions for non-911 related disbursements constitute diversion?
---------------------------------------------------------------------------

    \43\ The TFOPA Report noted, ``The legislative practice of 
sweeping uncommitted balances of 9-1-1-related accounts, especially 
those intended to fund NG9-1-1 system infrastructure generally 
occurs quietly without much public scrutiny.'' TFOPA Report at 153-
54. The TFOPA Report proposed measures to deter such sweeps and 
advised that ``there should ultimately be consequences for repeated 
diversions.'' Id. at 162.
---------------------------------------------------------------------------

B. Petition for Determination

    Section 902(c)(1)(C) provides that a state or taxing jurisdiction 
may petition the Commission for a determination that ``an obligation or 
expenditure of a 9-1-1 fee or charge . . . by such State or taxing 
jurisdiction for a purpose or function other than a purpose or function 
designated under paragraph (3)(A) [support for 911 services/PSAP 
expenditures] should be treated as such a purpose or function.'' \44\ 
The state or taxing jurisdiction must demonstrate that the expenditure: 
(1) ``supports public safety answering point functions or operations,'' 
or (2) has a direct impact on the ability of a public safety answering 
point to ``receive or respond to 9-1-1 calls'' or to ``dispatch 
emergency responders.'' \45\ If the Commission finds that the state or 
taxing jurisdiction has provided sufficient documentation to make this 
demonstration, Section 902 provides that the Commission shall grant the 
petition.\46\
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    \44\ 47 U.S.C. 615a-1(f)(5)(A) (as amended); sec. 902(c)(1)(C).
    \45\ 47 U.S.C. 615a-1(f)(5)(B) (as amended); sec. 902(c)(1)(C).
    \46\ 47 U.S.C. 615a-1(f)(5)(A) (as amended); sec. 902(c)(1)(C).
---------------------------------------------------------------------------

    We propose to codify these provisions in new subpart I of the 
rules. We believe Congress intended this petition process to serve as a 
safety valve allowing states to seek further refinement of the 
definition of obligations and expenditures that are considered 911 
related. At the same time, the proposed rule would set clear standards 
for what states must demonstrate to support a favorable ruling, 
including the requirement to provide sufficient documentation. To 
promote efficiency in reviewing such petitions, we also propose that 
states or taxing jurisdictions seeking such a determination must do so 
by filing a petition for declaratory ruling under Sec.  1.2 of the 
Commission's rules.\47\ The declaratory ruling process would promote 
transparency regarding the ultimate decisions about 911 fee revenues 
that legislatures and executive officials make and how such decisions 
promote effective 911 services and deployment of NG911. Consistent with 
the declaratory ruling process outlined in Sec.  1.2(b), we anticipate 
docketing the petition within an existing or new proceeding. In 
addition, we anticipate the Public Safety and Homeland Security Bureau 
will seek comment on petitions via public notice and with a comment and 
reply comment cycle. We propose to delegate authority to the Bureau to 
rule on these petitions. We seek comment on these proposals and on any 
possible alternative processes for entertaining such petitions.
---------------------------------------------------------------------------

    \47\ See 47 CFR 1.2.
---------------------------------------------------------------------------

C. Other Section 902 Provisions

    Pursuant to Section 902(d)(4), any state or taxing jurisdiction 
identified by the Commission in the annual 911 fee report as engaging 
in diversion of 911 fees or charges ``shall be ineligible to 
participate or send a representative to serve on any committee, panel, 
or council established under section 6205(a) of the Middle Class Tax 
Relief and Job Creation Act of 2012 . . . or any advisory committee 
established by the Commission.'' \48\ We propose to codify this 
restriction as it applies to any advisory committee established by the 
Commission in subpart I and seek comment on this proposal. We also seek 
comment on the extent to which state and local governments currently 
diverting 911 fees (based on the Commission's most recent report) now 
participate in such Commission advisory committees and the impact on 
them from being prohibited from doing so. Would it be helpful to 
provide a mechanism for states and taxing jurisdictions to raise 
questions regarding their eligibility to serve on an advisory 
committee?
---------------------------------------------------------------------------

    \48\ Sec. 902(d)(4) (internal citations omitted).
---------------------------------------------------------------------------

    Section 902(c)(1)(C) also provides that if a state or taxing 
jurisdiction receives a grant under section 158 of the National 
Telecommunications and Information Administration Organization Act (47 
U.S.C. 942) after the date of enactment of Section 902, ``such State or 
taxing jurisdiction shall, as a condition of receiving such grant, 
provide the information requested by the Commission to prepare [the 
annual report to Congress on 911 fees].'' \49\ We propose to codify 
this provision in subpart I and seek comment on this proposal. What 
effect does this statutory provision and its proposed codification in 
the Commission's rules have on states or taxing jurisdictions that 
receive such grants? Does this provision, combined with other statutory 
anti-diversion restrictions that already apply to 911 grant recipients, 
increase the likelihood that diverting states and taxing jurisdictions 
will change their diversion practices? Are there any aspects of our 
proposed implementation of Section 902 that might create obstacles to 
state fiscal needs?
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    \49\ 47 U.S.C. 615a-1(f)(4) (as amended); Section 902(c)(1)(C). 
The National Highway Traffic Safety Administration and National 
Telecommunications and Information Administration will review the 
regulations for the 911 Grant Program at 47 CFR part 400 in order to 
determine how best to implement the new obligation under the law. 
The Commission will work with these Agencies to ensure a coordinated 
compliance regime.
---------------------------------------------------------------------------

    Finally, Section 902(d)(2) provides that, beginning with the first 
annual fee report ``that is required to be submitted after the date 
that is 1 year after the date of the enactment of this Act,'' the 
Commission shall include in each report ``all evidence that suggests 
the diversion by a State or taxing jurisdiction of 9-1-1 fees or 
charges, including any information regarding the impact of any 
underfunding of 9-1-1 services in the State or taxing jurisdiction.'' 
Given that the Commission is similarly required to provide the 
interagency strike force with any information regarding underfunding of 
911 services,\50\ in addition to the proposals discussed above, we seek 
comment on how the Commission can emphasize this aspect of its 
information collection reports.
---------------------------------------------------------------------------

    \50\ Sec. 902(d)(1).
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Procedural Matters

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), the Commission has prepared this Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on a 
substantial number of small entities by the policies and rules proposed 
in the notice of proposed rulemaking (NPRM). Written public comments 
are requested on this IRFA. Comments must be identified as responses to 
the IRFA and must be filed by the deadlines for comments provided on 
the first page of the NPRM. The Commission will send a copy of the 
NPRM, including this IRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration (SBA). In addition, the NPRM and IRFA (or 
summaries thereof) will be published in the Federal Register.

A. Need for, and Objectives of, the Proposed Rules

    The NPRM proposes and seeks comment on ways to implement Section 
902 of the Consolidated Appropriations Act of 2021. On December 27, 
2020, the President signed the Don't Break Up the T-Band Act of 2020, 
which is Division FF, Title IX, Section 902 of the Consolidated 
Appropriations Act, 2021 (Pub. L. 116-260). Section 902 directs the 
Commission to issue final rules 180 days after enactment on December 
27, 2020 designating acceptable purposes and functions for the 
obligation or expenditure of 911 fees by states and taxing 
jurisdictions. Section 902 also provides that the use of 911 fees for 
any

[[Page 12406]]

purpose or function other than those designated by the Commission 
constitutes 911 fee diversion.
    To implement Section 902 of the Act, the NPRM seeks comment on the 
Commission's proposals to amend part 9 of the rules to establish a new 
subpart I regarding ``911 Fees.'' Section 902 defines several terms, 
and the NPRM proposes to codify these definitions in the new subpart I 
of the rules. In addition, Section 902 directs the Commission to issue 
final rules designating purposes and functions for which the obligation 
or expenditure of 911 fees is acceptable. It also provides that the 
purposes and functions identified by the Commission as acceptable 
``shall be limited to the support and implementation of 9-1-1 services 
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 taxing jurisdiction.'' The NPRM seeks comments on 
proposals to develop an illustrative, non-exhaustive list of 
permissible and non-permissible uses for purposes of Section 902.
    Section 902 provides that a state or taxing jurisdiction may 
petition the FCC for a determination that an obligation or expenditure 
of a 911 fee for a purpose or function other than those deemed 
acceptable by the Commission should be treated as an acceptable 
expenditure. Per Section 902, the petition must demonstrate that the 
expenditure: (1) Supports public safety answering point (PSAP) 
functions or operations, or (2) has a direct impact on the ability of a 
PSAP to receive or respond to 911 calls or to dispatch emergency 
responders. If the Commission finds that a state or taxing jurisdiction 
has provided sufficient documentation to make this demonstration, the 
statute provides that it shall grant the petition. In addition, the 
Commission seeks comment on amending the rules to require that if a 
state or taxing jurisdiction receives a grant under section 158 of the 
National Telecommunications and Information Administration Organization 
Act (47 U.S.C. 942) after December 27, 2020, such state or taxing 
jurisdiction shall provide the information requested by the Commission 
to prepare the annual report to Congress required by the NET 911 Act. 
The NPRM seeks comment on proposals to codify these provisions in 
subpart I of part 9 of the rules.

B. Legal Basis

    This action was taken pursuant to Sections 1, 4(i), 4(j), 4(o), 
201(b), 251(e), 301, 303(b), and 303(r) of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 154(o), 201(b), 
251(e), 301, 303(b), and 303(r), the Don't Break Up The T-Band Act of 
2020, Section 902 of Title IX, Division FF of the Consolidated 
Appropriations Act, 2021, Public Law 116-260, Section 101 of the New 
and Emerging Technologies 911 Improvement Act of 2008, Public Law 110-
283, 47 U.S.C. 615a-1, and the Wireless Communications and Public 
Safety Act of 1999, Public Law 106-81, 47 U.S.C. 615 note, 615, 615a, 
and 615b.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A ``small-business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. Our actions, over time, may affect small entities that 
are not easily categorized at present. We therefore describe here, at 
the outset, three broad groups of small entities that could be directly 
affected herein. First, while there are industry-specific size 
standards for small businesses that are used in the regulatory 
flexibility analysis, according to data from the Small Business 
Administration's (SBA's) Office of Advocacy, in general a small 
business is an independent business having fewer than 500 employees. 
These types of small businesses represent 99.9% of all businesses in 
the United States, which translates to 30.7 million businesses.
    Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2018, there were 
approximately 571,709 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate that there 
were 90,075 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number there were 36,931 general purpose governments 
(county, municipal and town or township) with populations of less than 
50,000 and 12,040 special purpose governments--independent school 
districts with enrollment populations of less than 50,000. Accordingly, 
based on the 2017 U.S. Census of Governments data, we estimate that at 
least 48,971 entities fall into the category of ``small governmental 
jurisdictions.''
    Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
appropriate size standard under SBA rules is that such a business is 
small if it has 1,500 or fewer employees. For this industry, U.S. 
Census Bureau data for 2012 show that there were 967 firms that 
operated for the entire year. Of this total, 955 firms employed fewer 
than 1,000 employees and 12 firms employed 1000 employees or more. 
Thus, under this category and the associated size standard, the 
Commission estimates that the majority of Wireless Telecommunications 
Carriers (except Satellite) are small entities.
    Wired Telecommunications Carriers. The U.S. Census Bureau defines 
this industry as ``establishments primarily engaged in operating and/or 
providing access to transmission facilities and infrastructure that 
they own and/or lease for the transmission of voice, data, text, sound, 
and video using wired communications networks. Transmission facilities 
may be based on a single technology or a combination of technologies. 
Establishments in this industry use the wired telecommunications 
network facilities that they operate to provide a variety of services, 
such as wired telephony

[[Page 12407]]

services, including voice over internet protocol (VoIP) services, wired 
(cable) audio and video programming distribution, and wired broadband 
internet services. By exception, establishments providing satellite 
television distribution services using facilities and infrastructure 
that they operate are included in this industry.'' The SBA has 
developed a small business size standard for Wired Telecommunications 
Carriers, which consists of all such companies having 1,500 or fewer 
employees. U.S. Census Bureau data for 2012 show that there were 3,117 
firms that operated that year. Of this total, 3,083 operated with fewer 
than 1,000 employees. Thus, under this size standard, the majority of 
firms in this industry can be considered small.
    All Other Telecommunications. The ``All Other Telecommunications'' 
category is comprised of establishments primarily engaged in providing 
specialized telecommunications services, such as satellite tracking, 
communications telemetry, and radar station operation. This industry 
also includes establishments primarily engaged in providing satellite 
terminal stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. 
Establishments providing internet services or VoIP services via client-
supplied telecommunications connections are also included in this 
industry. The SBA has developed a small business size standard for 
``All Other Telecommunications,'' which consists of all such firms with 
annual receipts of $35 million or less. For this category, U.S. Census 
Bureau data for 2012 show that there were 1,442 firms that operated for 
the entire year. Of those firms, a total of 1,400 had annual receipts 
less than $25 million, and 15 firms had annual receipts of $25 million 
to $49,999,999. Thus, the Commission estimates that the majority of 
``All Other Telecommunications'' firms potentially affected by our 
action can be considered small.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    As indicated in Section A above, the NPRM seeks comment on proposed 
rules to implement Section 902. The NPRM generally does not propose 
specific reporting or recordkeeping requirements. The NPRM does, 
however, propose and seek comment on codifying the requirement that 
states or taxing jurisdictions seeking a Commission determination on 
911 fee diversion satisfy certain criteria established in Section 902. 
In such cases, a state or taxing jurisdiction would have to show that a 
proposed expenditure: (1) Supports PSAP functions or operations, or (2) 
has a direct impact on the ability of a PSAP to receive or respond to 
911 calls or to dispatch emergency responders. If the Commission finds 
that a state or taxing jurisdiction has provided sufficient 
documentation to make this demonstration, the statute provides that it 
shall grant the petition. The information and documentation that a 
state or taxing jurisdiction will have to provide the Commission to 
make the requisite showing will impact the reporting and recordkeeping 
requirements for small entities and others subject to the requirements. 
The Commission proposes to apply the existing declaratory ruling 
procedures and obligations under Sec.  1.2 of the Commission's rules, 
which small entities may already be familiar with, to petitions for 
determination.
    In addition, the NPRM seeks comment on amending the rules to 
require that if a state or taxing jurisdiction receives a grant under 
section 158 of the National Telecommunications and Information 
Administration Organization Act (47 U.S.C. 942) after December 27, 
2020, such state or taxing jurisdiction shall provide the information 
requested by the Commission to prepare the report required under 
section 6(f)(2) of the Wireless Communications and Public Safety Act of 
1999 (47 U.S.C. 615a-1(f)(2)). This proposed requirement is consistent 
with the requirements of Section 902. Under OMB Control No. 3060-1122, 
the Office of Management and Budget previously approved and renewed the 
information collection requirements associated with filing annual 911 
fee reports as mandated by the NET 911 Act.

E. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    The RFA requires an agency to describe any significant specifically 
small business alternatives that it has considered in reaching its 
proposed approach, which may include the following four alternatives 
(among others): (1) The establishment of differing compliance or 
reporting requirements or timetables that take into account the 
resources available to small entities; (2) the clarification, 
consolidation, or simplification of compliance or reporting 
requirements under the rule for small entities; (3) the use of 
performance, rather than design, standards; and (4) an exemption from 
coverage of the rule, or any part thereof, for small entities.
    In the NPRM, the Commission seeks to implement the provisions of 
Section 902 that require Commission action by proposing changes to part 
9 of our rules that would achieve the stated objectives of Congress's 
mandated rules in a cost-effective manner that is not unduly burdensome 
to providers of emergency telecommunication services or to states and 
taxing jurisdictions. Using this approach, we inherently take steps to 
minimize any significant economic impact or burden for small entities. 
Specifically, we propose to adopt and codify the definitions in Section 
902 for certain terms relating to 911 fees and fee diversion in part 9 
of our rules. For a few terms, we make limited modifications to the 
definition to avoid gaps and promote the apparent intent of the new 
statute. In addition to promoting consistency, we believe our proposals 
will help small entities and others who will be subject to Section 902 
and our rules avoid additional expenses for compliance which may have 
resulted if the Commission in the alternative proposed and adopted 
different definitions for certain terms in Section 902 relating to 911 
fees and fee diversion.
    Similarly, to fulfill the Commission obligations associated with 
issuing rules designating acceptable purposes and functions, for 
consistency we propose to use language from Section 902 codifying the 
statutory standard for which the obligation or expenditure of 911 fees 
or charges by any state or taxing jurisdiction is considered 
acceptable. We also propose to specify in the rules examples of both 
acceptable and unacceptable purposes and functions for the obligation 
or expenditure of 911 fees or charges. If adopted, identifying and 
including these examples in the Commission's rules should enable small 
entities to avoid unacceptable expenditures in violation of our rules, 
which could impact eligibility for Federal grants and participation in 
Federal advisory committees.
    Finally, the Commission expects to more fully consider the economic 
impact on small entities, as identified in comments filed in response 
to the NPRM and this IRFA, in reaching its final conclusions and taking 
action in this proceeding.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    None.

[[Page 12408]]

Ordering Clauses

    Accordingly, it is ordered, pursuant to Sections 1, 4(i), 4(j), 
4(o), 201(b), 251(e), 301, 303(b), and 303(r) of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 154(o), 201(b), 
251(e), 301, 303(b), and 303(r), the Don't Break Up the T-Band Act of 
2020, Section 902 of Title IX, Division FF of the Consolidated 
Appropriations Act, 2021, Public Law 116-260, Section 101 of the New 
and Emerging Technologies 911 Improvement Act of 2008, Public Law 110-
283, 47 U.S.C. 615a-1, and the Wireless Communications and Public 
Safety Act of 1999, Public Law 106-81, 47 U.S.C. 615 note, 615, 615a, 
and 615b, that this notice of proposed rulemaking is hereby adopted.
    It is further ordered that, pursuant to applicable procedures set 
forth in Sec. Sec.  1.415 and 1.419 of the Commission's Rules, 47 CFR 
1.415, 1.419, interested parties may file comments on the notice of 
proposed rulemaking on or before 20 days after publication in the 
Federal Register, and reply comments on or before 30 days after 
publication in the Federal Register.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this notice of proposed rulemaking, including the Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

List of Subjects in 47 CFR Part 9

    Communications common carriers, Communications equipment, Radio, 
Federal Communications Commission.

Marlene Dortch,
Secretary, Office of the Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 9 as follows:

PART 9--911 REQUIREMENTS

0
1. The authority citation for part 9 is revised to read as follows:

    Authority:  47 U.S.C. 151-154, 152(a), 155(c), 157, 160, 201, 
202, 208, 210, 214, 218, 219, 222, 225, 251(e), 255, 301, 302, 303, 
307, 308, 309, 310, 316, 319, 332, 403, 405, 605, 610, 615, 615 
note, 615a, 615b, 615c, 615a-1, 616, 620, 621, 623, 623 note, 721, 
and 1471, and Section 902 of Title IX, Division FF, Pub. L. 116-260, 
134 Stat. 1182, unless otherwise noted.

0
2. Add subpart I, consisting of Sec. Sec.  9.21 through 9.26, to read 
as follows:

Subpart I--911 Fees

Sec.
9.21 Applicability.
9.22 Definitions.
9.23 Designation of acceptable obligations or expenditures.
9.24 Petition regarding additional purposes and functions.
9.25 Participation in annual fee report data collection.
9.26 Advisory committee participation.


Sec.  9.21   Applicability.

    The rules in this subpart apply to States or taxing jurisdictions 
that collect 911 fees or charges (as defined in this subpart) from 
commercial mobile services, IP-enabled voice services, and other 
emergency communications services.


Sec.  9.22   Definitions.

    For purposes of this subpart, the terms in this section have the 
following meaning:
    911 fee or charge. A fee or charge applicable to commercial mobile 
services, IP-enabled voice services, or other emergency communications 
services specifically designated by a State or taxing jurisdiction for 
the support or implementation of 911 services. A 911 fee or charge 
shall also include a fee or charge designated for the support of public 
safety, emergency services, or similar purposes if the purposes or 
allowable uses of such fee or charge include the support or 
implementation of 911 services.
    Diversion. The obligation or expenditure of a 911 fee or charge for 
a purpose or function other than the purposes and functions designated 
by the Commission as acceptable pursuant to Sec.  9.23. Diversion also 
includes distribution of 911 fees to a political subdivision that 
obligates or expends such fees for a purpose or function other than 
those designated as acceptable by the Commission pursuant to Sec.  
9.23.
    Other emergency communications services. The provision of emergency 
information to a public safety answering point via wire or radio 
communications, and may include 911 and E911 service.
    State. Any of the several States, the District of Columbia, or any 
territory or possession of the United States.
    State or taxing jurisdiction. A State, political subdivision 
thereof, Indian Tribe, or village or regional corporation serving a 
region established pursuant to the Alaska Native Claims Settlement Act 
(43 U.S.C. 1601 et seq.)


Sec.  9.23   Designation of acceptable obligations or expenditures.

    (a) Acceptable purposes and functions for the obligation or 
expenditure of 911 fees or charges are limited to:
    (1) Support and implementation of 911 services provided by or in 
the State or taxing jurisdiction imposing the fee or charge; and
    (2) Operational expenses of public safety answering points within 
such State or taxing jurisdiction.
    (b) Examples of acceptable purposes and functions include, but are 
not limited to, the following, provided that the State or taxing 
jurisdiction can adequately document that it has obligated or spent the 
fees or charges in question for these purposes and functions:
    (1) PSAP operating costs, including lease, purchase, maintenance, 
and upgrade of customer premises equipment (CPE) (hardware and 
software), computer aided dispatch (CAD) equipment (hardware and 
software), and the PSAP building/facility;
    (2) PSAP personnel costs, including telecommunicators' salaries and 
training;
    (3) PSAP administration, including costs for administration of 911 
services and travel expenses associated with the provision of 911 
services;
    (4) Integrating public safety/first responder dispatch and 911 
systems, including lease, purchase, maintenance, and upgrade of CAD 
hardware and software to support integrated 911 and public safety 
dispatch operations; and
    (5) Providing for the interoperability of 911 systems with one 
another and with public safety/first responder radio systems.
    (c) Examples of purposes and functions that are not acceptable for 
the obligation or expenditure of 911 fees or charges include, but are 
not limited to, the following:
    (1) Transfer of 911 fees into a State or other jurisdiction's 
general fund or other fund for non-911 purposes;
    (2) Equipment or infrastructure for constructing or expanding non-
public safety communications networks (e.g., commercial cellular 
networks); and
    (3) 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.
    (d) If a State or taxing jurisdiction collects fees or charges 
designated for ``public safety,'' ``emergency services,'' or similar 
purposes that include 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:

[[Page 12409]]

    (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 commingled with any other funds; and
    (3) Obligates or expends the 911 portion of such fees or charges 
for acceptable purposes and functions as defined under this section.


Sec.  9.24   Petition regarding additional purposes and functions.

    (a) A State or taxing jurisdiction may petition the Commission for 
a determination that an obligation or expenditure of 911 fees or 
charges for a purpose or function other than the purposes or functions 
designated as acceptable in Sec.  9.23 should be treated as an 
acceptable purpose or function. Such a petition must meet the 
requirements applicable to a petition for declaratory ruling under 
Sec.  1.2 of this chapter.
    (b) The Commission shall grant the petition if the State or taxing 
jurisdiction provides sufficient documentation to demonstrate that the 
purpose or function:
    (1) Supports public safety answering point functions or operations; 
or
    (2) Has a direct impact on the ability of a public safety answering 
point to:
    (i) Receive or respond to 911 calls; or
    (ii) Dispatch emergency responders.


Sec.  9.25   Participation in annual fee report data collection.

    If a State or taxing jurisdiction receives a grant under section 
158 of the National Telecommunications and Information Administration 
Organization Act (47 U.S.C. 942) after December 27, 2020, such State or 
taxing jurisdiction shall provide the information requested by the 
Commission to prepare the report required under section 6(f)(2) of the 
Wireless Communications and Public Safety Act of 1999 (47 U.S.C. 615a-
1(f)(2)).


Sec.  9.26   Advisory committee participation.

    Notwithstanding any other provision of law, any State or taxing 
jurisdiction identified by the Commission in the report required under 
section 6(f)(2) of the Wireless Communications and Public Safety Act of 
1999 (47 U.S.C. 615a-1(f)(2)) as engaging in diversion of 911 fees or 
charges shall be ineligible to participate or send a representative to 
serve on any advisory committee established by the Commission.

[FR Doc. 2021-04250 Filed 3-1-21; 4:15 pm]
BILLING CODE 6712-01-P