Under Maryland's 911 Law, can a wireless phone company bill the state's 911 Trust Fund for its own costs of providing enhanced 911 service, or does the fund only reimburse counties?

Plain-English summary

Anthony Myers, Acting Chairman of Maryland's Emergency Number Systems Board (ENSB), asked the Attorney General whether a wireless telephone company was entitled to recover from the state's 911 Trust Fund its costs of providing enhanced 911 service to its customers. Wireless carriers had argued that a "parity provision" in Maryland's 911 Law, which says wireless companies need not provide any equipment or service beyond what wireline telephone companies are required to provide, entitled them to Fund reimbursement for their enhanced 911 costs.

The opinion rejected that argument. It concluded the 911 Trust Fund exists to reimburse counties, and county contractors approved by the ENSB, for 911 system enhancements, not to directly subsidize a telephone company's own cost of complying with federal 911 obligations. A wireline company could only reach the Fund through its contractual relationship with a county; a wireless carrier, by contrast, is independently obligated to provide 911 service under FCC rules regardless of any county contract, and the FCC had specifically decided that a cost-recovery mechanism was not a precondition to that obligation because wireless carriers could recover costs through unregulated market rates. The opinion found nothing in the 911 Law's legislative history, from its original 1979 enactment through the 1995 extension of Fund fees to wireless subscribers, suggesting the General Assembly intended a different result. It concluded the ENSB retained discretion to approve payment for a wireless carrier's costs only where the carrier acted as a contractor under an actual county agreement for approved enhancements.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, funding mechanism, or FCC requirement mentioned here. The opinion's own editor's note states that the 911 Law was recodified into the Public Safety Article, §1-301 et seq., by Chapter 5, Laws of Maryland 2003, shortly after this opinion issued.

Common questions

Did Maryland's 911 Law give wireless companies a right to be paid back for enhanced 911 costs?
No, according to the opinion. It concluded the 911 Law's text created no entitlement to Fund reimbursement for either wireless or wireline companies; the Fund's stated purpose was to reimburse counties for 911 system enhancements and to pay county contractors, not to subsidize a telecom provider's costs independent of a contract with a county.

Why couldn't wireless carriers rely on the 911 Law's "parity provision" to get paid from the Fund?
The opinion explained that the parity provision in §18-106(b) only meant wireless carriers were not required to provide more equipment or service than wireline carriers were required to provide under approved tariffs; it did not create an affirmative right to Fund payment. The opinion also noted that, unlike wireline carriers whose only path to the Fund was through a county contract, wireless carriers had an independent federal law obligation to provide 911 service and could recover their costs through unregulated market rates, as the FCC itself had found when it dropped its cost-recovery-mechanism requirement in 1999.

Was there any way a wireless carrier could still get paid from the 911 Trust Fund?
Yes. The opinion concluded the ENSB retained discretion to approve such payments if the wireless carrier incurred the costs under an actual contract with a local government, the request was consistent with that county's approved enhanced 911 plan, and the expenses otherwise qualified for reimbursement under the State 911 Law, the same path already available to wireline telephone companies acting as county contractors.

Background and statutory framework

Maryland's 911 Law, originally enacted in 1979 as Chapter 730 of the Laws of Maryland and now (at the time of this opinion) codified at Article 41, §18-101 et seq., required every county to maintain an enhanced 911 system incorporating automatic number identification, automatic location information, and future ENSB-required technology. The 911 Trust Fund, funded by a statewide monthly fee on subscribers plus an optional local county charge, was structured through several legislative changes over two decades: an initial 1979 grant program limited to installation and first-year operating costs; a 1983 restructuring adding county fees and county-specific accounts; a 1990 mandate for full enhanced 911 systems statewide, with Fund use redirected to enhancement costs; a 1992 amendment allowing the ENSB to approve direct payments from the Fund to private contractors under specific conditions; and a 1995 extension of the statewide fee and county charges to wireless telephone subscribers.

Under federal law, the FCC has required wireless carriers to provide 911 access since 1996, phased into basic ("Phase zero"), Phase I (caller number and cell site location), and Phase II (precise caller location) requirements under 47 C.F.R. §20.18. The FCC eliminated a requirement that a carrier cost-recovery mechanism be in place as a condition of that obligation in 1999, reasoning that unregulated wireless rates already let carriers recover their costs, and FCC staff later concluded the cost-allocation demarcation point between a wireless carrier's responsibility and a PSAP's responsibility was the input to the wireline company's 911 selective router. The opinion applied this framework to conclude that a wireless carrier's costs of getting its 911 data into a form the wireline selective router could process were the carrier's own responsibility, not a Fund-subsidized cost, absent a specific county contract.

Citations and references

Statutes:
- Article 41, §18-101(f)(1), (5), (6), (14), and (15), defining "county," "911 system," "enhanced 911," "wireless telephone service," and "911-accessible service"
- Article 41, §18-102(a)-(b), mandating enhanced 911 systems and permitting multi-county systems
- Article 41, §18-103(b) and (h)(1), (h)(11), establishing and empowering the Emergency Number Systems Board
- Article 41, §18-104, requiring county enhanced 911 plans
- Article 41, §18-105(a), (b), (b)(2)-(3), and (c), establishing the Fund's statewide and local fees and their purpose
- Article 41, §18-106(a)-(b), the tariff limitation for wireline carriers and the parity provision for wireless carriers
- Article 41, §18-107 and §18-107(b), (f)(1)(ii), (f)(2), governing Fund reimbursement of county enhancement and operational costs
- Article 41, §18-108(a)-(b), governing Fund audits and permissible operational cost categories
- Article 41, former §204H-1 through §204H-7, the Fund's original 1979-era codification
- Chapter 730, Laws of Maryland 1979, the original enactment of the 911 Law and Fund
- Chapters 67 and 68, Laws of Maryland 1983, adding county fees and restructuring the Fund
- Chapter 510, Laws of Maryland 1990, mandating enhanced 911 systems statewide
- Chapter 500, Laws of Maryland 1992, authorizing direct Fund payments to non-county contractors
- Chapter 158, Laws of Maryland 1995, extending Fund fees to wireless telephones
- Chapter 440, §14, Laws of Maryland 2002, amending the telephone company fee-retention provision
- Chapter 521, Laws of Maryland 2001, the enacted but unimplemented task force legislation on enhanced 911 service
- Chapter 5, Laws of Maryland 2003, recodifying the 911 Law into the Public Safety Article
- Communications Act of 1934, 47 U.S.C. §151 et seq., and 47 U.S.C. §251(e)(3) and §615, the federal statutory basis for FCC 911 authority and encouragement of state 911 programs
- 47 C.F.R. §20.18 and §20.18(j), the FCC's wireless 911 and PSAP cost-recovery regulations
- Wireless Communications and Public Safety Act of 1999, Pub. L. No. 106-81, 113 Stat. 1286, directing FCC action on 911 as the universal emergency number

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2002/87oag83.pdf

Original opinion text

Gen. 83] 83

                     PUBLIC SAFETY

B UDGETARY A DMINISTRATION - A VAILABILITY OF 911 T RUST
F UND TO C OVER C OSTS OF E NHANCED 911 S YSTEMS
I NCURRED BY W IRELESS T ELEPHONE C OMPANIES

                         June 4, 2002

Mr. Anthony Myers, Acting Chairman
Emergency Number Systems Board
Department of Public Safety
& Correctional Services

   You requested our opinion concerning the types of

expenditures that the Emergency Number Systems Board ("ENSB")
may authorize from the 911 Trust Fund ("the Fund"). In particular,
you asked whether a wireless telephone company is entitled to
recover from the Fund its costs of providing enhanced 911 service
for its customers.

  In our opinion, a wireless telephone company does not have a

right to recover from the Fund its expenses of providing enhanced
911 service. However, the ENSB has discretion to approve
payments from the Fund for those costs, if the company incurs the
costs pursuant to a contract with a local government, if the request
is consistent with local plans for enhanced 911 services, and if the
expenses otherwise qualify for reimbursement under the State 911
Law.[1]

                               I

                         911 Services

 Although emergency services and the telephone number "911"

have long been synonymous, the technology involved in the
operation of 911 systems has changed significantly since 911 first
became the universal emergency telephone number. For many years,
when a person dialed 911, the call was directed through a central
office of the local telephone company to a "public safety answering
point" or "PSAP." A dispatcher at the PSAP answered the call,
determined the location and needs of the caller, and notified the
appropriate agency of the required emergency services. However,
the areas covered by a telephone company's central offices and the
boundaries of political jurisdictions operating PSAPs rarely
coincided. Moreover, the dispatcher would not know the caller's
location without a verbal inquiry.

  Advances in technology led to the development of "enhanced

911" systems. An "enhanced 911" system automatically connects a
caller to the appropriate PSAP and displays for the dispatcher on a
computer monitor the caller's number, the name and address of the
subscriber of that number, and possibly additional information.[2] If
the caller is disconnected or if a caller is unable to speak, assistance
can still be dispatched to the appropriate location. An "enhanced
911" system accomplishes this through such features as automatic
number identification ("ANI"), automatic location information
("ALI"), and selective routers. ANI automatically informs the
dispatcher at the PSAP of the caller's number. An ALI database
automatically relates that telephone number to the subscriber's name
and address. When the address of the telephone can be
automatically determined, a selective router, which connects
multiple central offices, can relay the call to the appropriate PSAP
based on the caller's location.

  Some advances in telephone technology have challenged the

ability of 911 systems to provide enhanced 911 service. When 911
service began, virtually all telephone service was provided by local
"wireline" telephone companies. The explosive increase in the
number of wireless telephones has compromised the ability of 911
systems to provide automatic location information. The provision
of enhanced 911 services for wireless callers is complex and
involves technology in addition to that needed for wireline services.

  When a 911 call is made from a wireless telephone, it passes

through the wireless carrier's mobile switching center before it
enters the existing wireline network and is directed to the 911
selective router of the local wireline telephone company. To provide
enhanced 911 service, a wireless carrier must convert a 911 call into
a format that the wireline carrier can process and transmit to the
appropriate PSAP. Without additional technology, the system is
unable to transmit automatically and precisely the wireless caller's
location.

                                II

                     Maryland's 911 Law

A. Mandate for Enhanced 911

  In 1979, the General Assembly established 911 as "the primary

emergency telephone number" in the State and enacted legislation
"to provide for the orderly installation of 911 systems." Chapter
730, Laws of Maryland 1979, now codified at Annotated Code of
Maryland, Article 41, §18-101 et seq. ("911 Law").[3] The 911 Law
now requires each county[4] in Maryland to have in place an enhanced
911 system. §18-102(a). The ENSB[5] is responsible for
"coordinat[ing] the enhancement of county 911 systems." Counties
were required to submit plans to the ENSB for enhanced 911
systems in accordance with ENSB guidelines. §§18-103(h)(1) and
18-104. An "enhanced 911" system must include ANI, ALI, and any
"future technological advancements that the [ENSB] may require."
§18-101(f)(6).

B. The 911 Trust Fund

  As part of the 911 Law, the Legislature established the Fund

to assist counties with the costs of 911 systems and enhancements.
The Fund consists in part of a monthly 10 cent fee imposed on
subscribers to "switched local exchange access service, wireless
telephone service, or other 911-accessible service." §18-105(b).
State law also permits each county to impose an additional charge of
up to 50 cents per month for subscribers within the county. §18-105(c).
Both the Statewide fee and local charges are collected by telephone
companies as part of a subscriber's telephone bills and forwarded to
the Fund.[6] §18-105(b)-(c).

  Subject to the State budget, the proceeds of the Statewide fee

are available to the ENSB to reimburse the counties for the costs of
911 system enhancements. §§18-105(a), (f), and 18-107. A county
may use distributions of the additional local fee to offset operational
costs of its 911 system, including "telephone company charges,
equipment costs or equipment lease charges, repairs, utilities,
personnel costs, and appropriate carryover costs from previous
years." §§18-107(f)(2) and 18-108(b). Direct payments may be
made from the Fund to a private contractor for system enhancements
provided to a county, as long as the enhancements are required by
the ENSB and the ENSB has given advance approval of the cost.
§§18-103(h)(11) and 18-107(f)(1)(ii). Each county's expenditures
from the Fund are subject to audit by the ENSB. §18-108(a).

C. Wireline Telephone Companies under the Maryland 911 Law

  When 911 systems were first implemented, an individual could

reach a PSAP by dialing 911 because that number is translated into
a seven- or ten-digit number of a PSAP at a central office of the
wireline telephone company. Unsurprisingly, the 911 Law has
always defined a "911 system" to include equipment outside the
PSAP that belongs to the wireline telephone company: "equipment
for connecting and outswitching 911 calls within a telephone central
office, [and] trunking facilities from the central office to a public
safety answering point...." See §18-101(f)(5).

   A wireline telephone company is not obligated to provide this

equipment without charge. In particular, the 911 Law provides that
"[n]othing in this subtitle requires a [wireline telephone company]
to provide any equipment or service other than pursuant to tariffs
...." §18-106(a). In addition to paying for on-site equipment at a
PSAP, the counties may use distributions from the Fund to pay for
equipment for "connecting and outswitching 911 calls within a
telephone central office, trunking facilities from the central office to
a public safety answering point, and equipment to connect 911 calls
to the appropriate public safety agency." §18-101(f)(5).[7] And, when
providing system enhancements, a telephone company may qualify
for direct payment from the Fund, with the approval of the ENSB,
as a contractor with a county. See §18-103(h)(11).

D. Wireless Carriers under the 911 Law

 The General Assembly acknowledged the increased number of

911 calls originating from wireless telephones when it extended the
Statewide fee and additional local charges to wireless telephones in
1995 and when it expanded the ENSB in 1996 to include a
representative of the wireless industry. §§18-105(b)(1) and (c)(1);
18-103(b)(2). However, the 911 Law does not specifically address
the extent to which equipment of a wireless carrier[8] is part of the
"911 system" subsidized by the Fund. Nor does the law mandate
that a wireless carrier provide any equipment or service. In
particular, a "parity provision" applicable to wireless companies
provides as follows:

          Nothing in this subtitle requires a [wireless
          telephone company] to provide any equipment
          or service other than the equivalent of that
          required of telephone companies under [§18-
          106(a)].

§18-106(b). As noted above, §18-106(a) provides that wireline
telephone companies are not obligated to provide equipment or
services for the 911 system except in accordance with approved
tariffs.

 You indicated that representatives of the wireless industry have

argued that the parity provision of the State 911 Law entitles
wireless carriers to recover from the Fund their costs for enhanced
911 services.[9] The effect of the parity provision of the 911 Law
must be assessed in light of a wireless carrier's obligation to provide
enhanced 911 service under federal law.

                                III

  Obligation of Wireless Carriers under Federal Law

A. FCC Orders

  Since 1996, the Federal Communications Commission

("FCC") has required wireless carriers to provide their customers
with access to 911 emergency services through a series of orders
issued under the Communications Act of 1934, 47 U.S.C. §151 et
seq.
In a Report and Order effective October 1, 1996,[10] the FCC
required that wireless carriers provide basic 911 services within one
year, so that a caller could reach a PSAP by dialing 911, a service
level sometimes referred to as "Phase zero." The FCC further
required wireless carriers to provide enhanced 911 services in two
phases. In Phase I, a wireless carrier was to transmit a 911 caller's
phone number, as well the location of the base station or cell site
receiving the call, to the PSAP. In Phase II, the wireless carrier was
to identify the location of the caller within prescribed specifications.
Phase I services were to be provided by April 1998; the deadline for
Phase II was October 2001. A wireless carrier was required to offer
these services only if (1) the designated PSAP capable of using the
required data requested the services and (2) a mechanism for
recovering the cost of the services was in place. See 61 Fed. Reg.
40348 (August 2, 1996) adopting 47 CFR §20.18.

  In subsequent years, the FCC has modified the implementation

requirements and has addressed alternative technologies.[11]
Significant for our purposes is the FCC's decision in 1999 to
eliminate the requirement that a cost recovery system for carriers be
in place as a condition of Phase I and Phase II implementation.
Second Memorandum Opinion and Order, summarized at 64 Fed.
Reg. 72951 (December 29, 1999).[12] The FCC explained:

        Although a number of States have decided that
        separate E911 cost recovery mechanisms are
        the best way to recover carriers' costs ... such
        mechanisms are not necessary to permit
        [wireless] carriers, whose rates are not
        regulated, to recover their costs. As a result,
        the Commission sees no need to make the
        obligations of carriers to implement E911
        service contingent on the resolution of carrier
        cost recovery issues.

Id. at 72952. However, in deciding to eliminate the cost recovery
condition for wireless providers, the FCC made clear that its intent
was not to "discourage [States or localities] from deciding that cost
recovery or sharing mechanisms that cover carrier costs are an
effective way of expediting wireless E911 ..." Id.[13]

B. FCC Staff Interpretation

  More recently, the FCC staff addressed cost allocation

responsibilities in connection with Phase I of wireless enhanced 911
services. Letter from Thomas J. Sugrue, Chief, Wireless
Telecommunications Bureau, to Marlys R. Davis, King County
E-911 Program Manager (May 7, 2001).[14] Although the staff
emphasized that the FCC favors negotiation between the parties as
the most efficacious and efficient means of resolving cost allocation
disputes, it concluded that the proper demarcation point for the
allocation of costs between wireless carriers and PSAPs is the point
of input at the 911 selective router maintained by the wireline
telephone company.[15] Under that interpretation, wireless carriers are
responsible for the expenses associated with providing data in a form
compatible with the existing 911 network.[16]

                               IV

              Wireless Carriers and the Fund

A. Role of the Fund in the 911 Law

  On its face, the 911 Law creates no entitlement for a wireless

carrier - or even a wireline carrier - to recover from the Fund its
costs of enhanced 911 service. The statute states that the purpose of
the Fund is to "reimburs[e] the counties for enhancements to a 911
system" and "[pay county] contractors [for qualifying
enhancements]." §18-105(a). While it may be inevitable that a
county will contract with a local wireline telephone company to
carry out its obligations under the 911 Law, the statute itself does not
confer on the telephone service provider a right to reimbursement
independent of that contract. Similarly, the statute establishing the
Fund does not create any entitlement for reimbursement of a wireless
carrier's costs associated with 911 services, independent of a
contractual relationship with a county.

B. Legislative History of the Fund

  A review of the history of legislation establishing the Fund

confirms that the General Assembly did not intend that wireless
carriers recover from the Fund their costs of providing enhanced 911
services, absent a contractual relationship with a county for those
services.

 1.       Initial Legislation - 1979

  When the General Assembly first mandated in 1979 that each

county establish a 911 system, it also established the Fund to help
defray the costs that counties would incur to establish 911 systems
and to enhance those already in place. Chapter 730, Laws of
Maryland 1979, then codified at Annotated Code of Maryland,
Article 41, §204H-1 et seq.[17] The Fund was available to award
grants to the counties for the installation of equipment and, during
the initial twelve months of operation, for service and certain
operating costs. See §204H-7 (1979 Supp.). To qualify for State
funding, a county was required to submit to the ENSB a 911 system
plan in accordance with guidelines developed by the ENSB.
§204H-4. State funding was not to be used for personnel required
to operate the system or for building construction or renovations.
§204H-7(a)(2) and (3). Funding was based on county population
levels and the maximum amount available to any county was
$800,000. §204H-7(a)(4)-(6) and (c). A county that already had a
911 system in place could apply for reimbursement of certain costs.
§204H-7(b). Funding was provided through a Statewide surcharge
imposed on subscribers' telephone accounts. §204H-5(b).

 2.    Addition of County Fee and Restructuring of the
       Fund - 1983

  In 1983, the General Assembly extended the Statewide

surcharge and authorized each county to impose an additional
charge. Chapters 67 and 68, Laws of Maryland 1983. The intent
was "to offset continuing operational and maintenance costs for
local subdivisions in providing the mandated 911 service."
Maryland Association of Counties' position paper on Senate Bill 542
(1983). The Fund was restructured so that both the Statewide fee
and local charges were allocated to individual county accounts.
Article 41, §204H-5(b) (1983 Supp.). While the legislation allowed
a telephone company to retain a percentage of the Statewide fee to
"cover the expenses of billing, collecting, and remitting" the
Statewide fee and local charges, id., the focus of the 911 Trust Fund
remained on assisting the counties implement system enhancements
and helping offset operational costs in connection with local 911
systems. As explained in a 1989 study produced for the General
Assembly:

       Funding for local 911 systems has always
       been subject to certain statutory restrictions.
       Funds from the [surcharge in place between
       1979 and 1983] can only be used to reimburse
       the jurisdictions for the purchase and
       installation of equipment, and operating costs
       incurred during the first 12 months of
       operation. ... [Under the 1983] revision, local
       governments were free to use monies gained
       from the State 10 cent fee to finance any facet
       of their 911 systems ... Use of the local fee,
       however, was restricted according to the
       jurisdiction's population. ... The purpose of
       these funding restrictions was to encourage
       the jurisdictions to develop the technical
       sophistication of their 911 systems ...

Department of Fiscal Services, The 911 Emergency Number System:
A Maryland Perspective p. 6 (November 1989).

 3.     Enhanced 911 - 1990

  In 1990, the General Assembly mandated that local

jurisdictions have enhanced 911 systems in place by July 1, 1995.
Chapter 510, Laws of Maryland 1990; see Article 41, §18-102(a)
(1990 Repl. Vol.).[18] Because every county then had at least a basic
911 system in place, statutory provisions governing county plans
were amended to focus on enhancements, and the State-wide fee was
redirected to reimburse counties for enhancement costs. §§18-104
and 18-107(f)(1). The 1990 legislation increased the maximum
amount of the additional county charge and granted counties
additional flexibility to cover operational costs. §§18-105(c),
18-107(f)(2), and 18-108(d) and (e). In terms of the Statewide fee,
the fiscal note explained, "[t]hese funds may only be used to
reimburse counties for enhancements to 911 systems which are
approved by the [ENSB] ..." Revised Fiscal Note on Senate Bill 822
(1990). Thus, the Fund was to support the county provision of 911
services.

 4.     Direct Payments from the Fund to Private Vendors -
        1992

  In 1992, the General Assembly first authorized the ENSB to

approve direct payments from the Fund to parties other than county
governments. Chapter 500, Laws of Maryland 1992. This
legislation did not alter the permissible uses of the 911 Trust Fund.
Rather, the purpose of the 1992 amendment was to grant "the ENSB
the discretion of providing these funds directly to the contractor in
instances where the enhancement is required by the [ENSB] and the
county has not had the opportunity to budget for these funds."
Testimony of the ENSB Coordinator on Senate Bill 670 (February
26, 1992). Direct payments were allowed for enhancements required
by the ENSB and approved by the ENSB before a county and vendor
had entered into a contract. §18-103(h)(11). Presumably, a
telephone company providing equipment or services could be a
vendor.

 5.     Extension of Fees to Wireless Telephones - 1995

 Three years later, the General Assembly extended the

Statewide fee and the additional charges imposed by county
governments to wireless telephones and other 911-accessible
services. Chapter 158, Laws of Maryland 1995. PSAPs were already
receiving a significant number of calls from wireless telephones,
albeit without the locational information provided through wireline
services. In the view of the legislation's advocates, the 1995
amendments "[eliminated] a loophole permitting certain phone
systems to avoid 911 charges." Maryland Association of Counties
position statement in support of Senate Bill 332 before Senate
Finance Committee (February 15, 1995).

  Like wireline telephone companies, wireless carriers were

authorized to retain a specified percentage of the Statewide fee to
offset administrative costs of collecting the required fees. §18-
105(b)(3) and (4). However, the General Assembly did not expand
the permissible uses of the Fund. In particular, it did not entitle
wireless carriers to recover their costs in connection with 911
services. Rather, in adding the parity provision of §18-106(b), the
General Assembly simply made clear that wireless carriers were not
mandated to assume certain costs, consistent with protection
provided to wireline telephone companies.

 6.    Summary

  Although the General Assembly has made numerous changes

to the law governing 911 systems since the 911 Law was first
enacted, the underlying policy pertaining to use of the Fund has
remained constant - that is, to help counties provide 911 services.

C. Effect of Parity Provision of 911 Law

  Does the parity provision of the 911 Law entitle a wireless

carrier to recover from the Fund the costs of providing enhanced 911
services to its customers? In our view, it does not.

  A wireline telephone company is entitled to payments from the

Fund only by virtue of its status as a contractor with a local
government. When a wireline telephone company provides
equipment and services for a 911 system, it does so pursuant to a
contractual relationship with the county, a customer of the wireline
telephone company. Although counties may call upon the Fund to
pay a portion of those costs, the telephone company is not entitled to
direct payments from the Fund in its own right. To the extent
payments might be made directly from the Fund to a wireline
telephone company, the payments are on behalf of the county, rather
than as a direct subsidy from the Fund.

  By contrast, a county need not enter into a direct relationship

with a wireless carrier to provide enhanced 911 services. A wireless
carrier is obligated to provide 911 services by federal law. 47 C.F.R.
§20.18. As noted above, the FCC eliminated the original
requirement that a cost recovery mechanism be in place as a
prerequisite to a wireless carrier's obligation. The FCC's reasoning
was that, because wireless carriers rates are not regulated, a wireless
carrier could recover its costs in the market place. Moreover, under
the current FCC staff interpretation, a county PSAP's obligation runs
only to the selective router maintained by the wireline company.[19]
Finally, wireless carriers must employ technology not required for
the delivery of enhanced 911 services solely through the wireline
network.

  Thus, in our view, the parity provision of §18-106(b) does not

entitle wireless companies to recover the costs of the technology
necessary to transmit required information through the selective
router to the appropriate PSAP.

  It is conceivable that a county plan for an enhanced 911 system

would involve the county entering into an agreement with a wireless
carrier for certain services. If the ENSB approved the plan, and if
the costs incurred by the county under the agreement were otherwise
eligible, the 911 Law would allow the ENSB to approve the
reimbursement of those costs from the Fund, or the direct payment
of the wireless carrier as a contractor of the county.

                               V

                          Conclusion

  A wireless carrier is not entitled to recover from the Fund the

costs of providing enhanced 911 services to its customers. However,
the ENSB has discretion to approve payments from the Fund for
these costs, if the company incurs the costs pursuant to a contract
with a local government, if the request is consistent with local plans
for enhanced 911 services, and if the expenses otherwise qualify for
reimbursement under the State 911 Law.

                                     J. Joseph Curran, Jr.
                                     Attorney General

                                     William R. Varga
                                     Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

Editor's Note:

  The State 911 Law has been recodified in Public Safety

Article, §1-301 et seq., Chapter 5, Laws of Maryland 2003.

[1] Our conclusion is consistent with a letter of advice by Assistant
Attorney General Stuart M. Nathan, dated January 30, 2002.

[2] Other features include Text Telephone Devices that ensure 911
accessibility to individuals with speech or hearing impairments.

[3] Unless otherwise indicated, all statutory citations in this opinion
are to Article 41 of the Annotated Code of Maryland (1997 Repl. Vol.,
2001 Supp.).

[4] "County" is defined in the statute to include Baltimore City.
§18-101(f)(1). Throughout this opinion we also use the term "county" to
include Baltimore City for brevity.
Section 18-102(b) authorizes counties to operate as part of a multi-
county system; however, no county has elected this approach.

[5] The ENSB consists of 13 members appointed by the Governor
with the advice and consent of the Senate. The members include
representatives of a telephone utility company, the wireless telephone
industry, the Maryland Institute for Emergency Medical Services, the
Maryland State Police, the Maryland Public Service Commission, the
Association of Public Safety Communications Officers, local fire
departments, police agencies, and emergency management services, and
three public members. §18-103(b).

[6] When submitting these fees to the State Comptroller, a telephone
company is entitled to retain .75 per cent of the State-wide fee for the
administrative costs of collecting the charges. §18-105(b)(2)-(3), as
amended by Chapter 440, §14, Laws of Maryland 2002.

[7] When initially enacted, the law made clear that funding was
available for the installation of all equipment described in the definition
of "911 system." See §204H-7(a)(1) (1979 Supp.). Today, the Statewide
fee is available solely for system enhancements approved by the ENSB.
§18-107(b).

[8] Section §18-101(f)(14) defines the term "wireless telephone
service" as follows:

             (i) "Wireless telephone service" means
        public telephone services provided for two way
        voice or data communication which is transmitted
        independent of switched local exchange access
        telephone service and which may in part be
        transmitted via cable or wire as part of a larger
        telephone or cable system.
             (ii) "Wireless telephone service" includes:
                 1. Cellular telephone service (cellular);
                 2. Personal communication service (PCS); and
                 3. Specialized mobile radio (SMR).
                  (iii) "Wireless telephone service" does not
            include any service that cannot connect a person
            dialing the digits 911 to an established public
            safety answering point under the 911 system.

Section 18-101(f)(15) defines "911-accessible service" as "any telephone
or other communications service that connects a person dialing the digits
911 to an established public safety answering point under the 911 system."

[9] In your letter, you state that industry representatives are relying
on a letter by Assistant Attorney General Kathryn M. Rowe to Senator
John C. Astle, dated February 21, 2001, concerning proposed legislation
then pending before the Legislature. The focus of Ms. Rowe's letter was
the obligations of the counties under Senate Bill 505 (2001), as introduced
- not the effect on the industry. In any event, the substantive provisions
of both Senate Bill 505 (2001) and the companion bill, House Bill 1078,
were eliminated, and the bills instead established a task force on enhanced
911 service. Although House Bill 1078 was enacted as Chapter 521, Laws
of Maryland 2001, its provisions were never implemented.
In a position statement submitted in connection with legislation
introduced during the 2002 Legislative Session, representatives of the
wireless industry contended that "existing Maryland law requires payment
of ... wireless carrier ... costs for wireless E911 service," citing the 911
Law. See position statement in support of Senate Bill 768, AT&T
Wireless, Cingular Wireless, Sprint, Verizon Wireless, Voicestream
Wireless, before the Senate Finance Committee (February 14, 2002). Copy
in Senate Finance Committee bill file on Senate Bill 768 (2002 Session).
The proposed 2002 legislation was not enacted.

[10] The Order applied to all cellular licensees, broadband Personal
Communications Service, and certain Specialized Mobile Radio licensees.
In this opinion, we use the term "wireless carriers" to encompass all of
these, for simplicity. A synopsis of the First Report and Order and the
regulations are found at 61 Fed. Reg. 40348 (August 2, 1996). The full
text of the FCC Report and Order can be found at
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-96-264A1.pdf.

[11] Among the more significant changes was recognition of the use
of ALI technology included within handsets as an alternative to network-
based technology, such as triangulation of a phone's signal. Third Report
and Order, summarized in 64 Fed. Reg. 60126 (November 4, 1999). As
new options and issues came to light, accuracy levels and implementation
time frames were modified. For current phase-in requirements, see 47
C.F.R. §20.18 (2001).
Currently, the six largest wireless carriers are operating under
various extensions granted by the FCC and smaller carriers' requests for
waivers are under review.

[12] The full text of the FCC Order is available at
http://www.fcc.gov/Bureaus/Wireless/Orders/1999/fcc99352.pdf.

[13] The FCC maintained the mandate that a cost recovery system be
in place to cover the PSAP's costs of enhanced 911 services. See 47
C.F.R. §20.18(j). But the FCC declined to mandate that states or local
governments fund a wireless carrier's costs of compliance.
During 1999, Congress also enacted the Wireless Communications
and Public Safety Act of 1999, Pub. L. No. 106-81, 113 Stat. 1286, to
"encourage and facilitate the prompt deployment throughout the United
States of America 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." Id.,
§2(b), 113 Stat. at 1287. Among other things, that law required the FCC
to designate 911 as the "universal emergency telephone number" for both
wireline and wireless telephone services, 47 U.S.C. §251(e)(3), and to
"encourage and support efforts by States to deploy comprehensive
end-to-end emergency communications infrastructure and programs, based
on coordinated statewide plans, including ...enhanced wireless 911
service." 47 U.S.C. §615. However, Congress did not mandate that states
implement enhanced 911 services or require that the states address the
costs of implementing these services.

[14] A copy of the Bureau's opinion can be found at
http://hraunfoss.fcc.gov/ edocs_public/attachmatch/DOC-212689A1.ptf.
Prior to issuing its ruling, the Bureau sought public comment on the
issues raised by the King County inquiry. Not surprisingly, a majority of
the wireless carriers that responded contended that the PSAP is
responsible for any system upgrades necessary for a wireless carrier to
deliver Phase I information in a form compatible with the existing 911
network; therefore, the appropriate demarcation point would be the
wireless carrier's mobile switching center. Public safety organizations, on
the other hand, asserted that the wireless carriers are required to provide
Phase I data in a form usable by the PSAP; therefore, the appropriate
demarcation point is the dedicated 911 selective router maintained by the
incumbent local exchange carrier.

[15] The letter stated: "wireless carriers are responsible for all
hardware and software components and functionalities that precede the
911 Selective Router, including the trunk [line] from the carriers Mobile
Switching Center (MSC) to the 911 Selective Router, and the particular
databases, interface devices, and trunk lines that may be needed to
implement the ... methodologies for delivering E911 Phase I data to the
PSAP. PSAPs ... must bear the costs of maintaining and/or upgrading the
E911 components and functionalities beyond the input to the 911
Selective Router, including the 911 Selective Router itself, the trunks
between the ... Router and the PSAP, the Automatic Location
Identification (ALI) database, and the PSAP customer premises equipment
(CPE)." Id., pp. 1-2. The Bureau went on to discuss the application of its
decision in terms of three techniques that have been developed in
connection with the delivery of Phase I data. Id., pp. 4 - 6.
The letter addressed only Phase I implementation; it is not clear
whether the Bureau would necessarily draw the same cost allocation line
in connection with Phase II implementation.

[16] Four wireless carriers have filed a petition requesting that the
FCC reconsider this conclusion.

[17] The statute read:

          There is established the 911 Trust Fund created
          for the purpose of providing grants to the counties
          to finance the installation of a "911 system" on a
          statewide basis and providing grants to the
          counties to finance "enhancements" to a "911
          system."

Article 41, §204H-5(a) (1979 Supp.). At the time, nine counties had
already implemented 911 systems. Department of Fiscal Services, A
Review of 911 (The Emergency Telephone Number) from a National and
State Perspective, at p. 6 (January 1983).

[18] Article 41 was recodified in accordance with its current
numbering system pursuant to Chapter 5, §4, Laws of Maryland 1986.

[19] This opinion is based on the technology currently in place and
the role of the wireline telephone company in channeling all 911 calls.
Future technology may allow wireless systems to operate directly with a
PSAP, bypassing the selective router maintained by the wireline company.
Should a county then deal directly with the wireless company, the analysis
might differ.