Can Tennessee let local emergency communications districts collect the 911 fee on landline and VoIP service?

Subject

Opinion No. 13-109, Locally Collected 911 Fee for Wireline and Non-Wireline Telephones, December 20, 2013

Plain-English summary

Sen. Todd Gardenhire asked whether anything in federal or Tennessee law would prevent the General Assembly from restructuring 911 funding so that the state's 100 local Emergency Communications Districts (ECDs) collect the 911 service charge on both wireline and non-wireline telephone service (including VoIP), with the single exception of cell phone (CMRS) service continuing to be remitted to the state-level Tennessee Emergency Communications Board (TECB). The AG's answer: no impediment.

The existing two-track system in 2013. Wireline 911 fees were collected locally by the ECDs at rates up to $1.50/month for residential lines and $3.00/month for business lines (with a maximum of 100 lines per location). Tenn. Code Ann. § 7-86-108(a)(2)(A). Non-wireline 911 fees (covering both CMRS cell service and IP-enabled VoIP service) were collected at a flat statewide rate of $1.00 per subscriber per month and remitted to the TECB. § 7-86-108(a)(1)(B)(i)(a), (b).

The proposed restructuring. Move VoIP collections from statewide TECB collection to local ECD collection, leaving cell phones at TECB. The fee on a VoIP "line" would mirror the wireline fee structure (per-number basis, up to 100 numbers per business location).

No federal obstacle. 47 U.S.C. § 615a-1 obligates IP-enabled voice service providers to support 911. § 615a-1(f)(1) expressly preserves the right of states and political subdivisions to impose 911 fees on IP-enabled voice service, subject to two conditions: (a) the fees must be used exclusively for 911 services, and (b) the fee on a class of subscribers cannot exceed the fee on the same class of telecommunications service subscribers. Several other states already had locally-collected VoIP 911 fee structures: Colorado (Colo. Rev. Stat. Ann. § 29-11-102(2)(a)), Oklahoma (Okla. Stat. Ann. tit. 63, § 2853), Pennsylvania (35 Pa. Cons. Stat. Ann. § 5311.14), West Virginia (W. Va. Code § 7-1-3cc(b)).

No state-law obstacle. The current Tennessee bifurcation came from a legislative policy choice in 2006, not from any constitutional or statutory requirement. The General Assembly is free to amend § 7-86-108 to put VoIP collection in the ECDs.

Currency note

This opinion was issued in 2013. 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, deadline, or remedy mentioned here.

Tennessee's 911 funding model has been adjusted since 2013, including legislation tied to the move toward Next Generation 911 (NG911) and pursuing more uniform fees. The federal preemption analysis under 47 U.S.C. § 615a-1 has been stable, but the specific 911 fee rates and division of collection authority between ECDs and TECB should be verified against current statute.

Background and statutory framework

Tennessee Emergency Communications Board (TECB). State-level body that oversees 911 system policies, manages the statewide non-wireline fee, distributes funds back to ECDs based on call volume and other factors, and supports NG911 deployment.

Emergency Communications Districts (ECDs). Each of Tennessee's 100 ECDs operates the local Public Safety Answering Points (PSAPs) and answers 911 calls in its service area. Funded historically by local wireline 911 fees plus state distributions.

Definition split. § 7-86-103(11) "non-wireline service" includes both CMRS (cellular) and IP-enabled services (VoIP). § 7-86-103(9) defines IP-enabled services to include voice over IP, services and applications using internet protocol, regardless of underlying technology (wireline, cable, wireless, satellite).

Federal CMRS funding. Under the Wireless Communications and Public Safety Act of 1999, Congress let states impose 911 fees on CMRS. The 2008 New and Emerging Technologies (NET) 911 Improvement Act extended that authority to IP-enabled services. 47 U.S.C. § 615a-1(f)(1) is the codification.

The 2006 Tennessee redesign. § 7-86-108(a)(1)(B)(vi) was effective July 1, 2006, requiring statewide flat-rate non-wireline 911 fees, "to the extent such application is not inconsistent with the orders, rules and regulations of the federal communications commission." This was Tennessee's response to the emerging VoIP era and the federal NET 911 framework. The state-level collection captured fees from VoIP providers that don't have geographic territories the way wireline ECDs do.

Why might a switch matter? Locally collected fees on VoIP would flow directly to the ECDs (potentially without state distribution overhead) and would let ECDs vary the fee within statutory limits, just as they do for wireline. The trade-off: VoIP is location-portable and customers might not have a fixed ECD, requiring some allocation rule. Some other states (Colorado, Oklahoma, Pennsylvania, West Virginia) had already solved this in different ways.

Common questions

Could ECDs charge different rates for VoIP than for wireline?

The federal floor in § 615a-1(f)(1) caps VoIP fees at the rate applicable to the same class of "telecommunications service" subscribers. So a residential VoIP fee can't exceed the residential wireline fee. Below that ceiling, state design controls.

Why not just include cell phones too?

The opinion's hypothetical excluded cell phones, presumably because cellular service is provider-allocated regionally rather than by geographic ECD. CMRS 911 fee collection has a different administrative footprint than fixed-line collection.

What about prepaid cell phones?

Prepaid wireless is a separate category in many states, often collected at the point of retail sale rather than through a monthly bill. The 2013 opinion addresses only the wireline/non-wireline split, not prepaid specifics.

Are 911 fees considered a tax?

In some states they're characterized as a fee for service rather than a tax; this affects voter-approval and constitutional procedures. The opinion didn't reach the characterization question, only the federal preemption and Tennessee statutory question.

What if VoIP is bundled with broadband?

Bundling raises allocation issues (how much of the bundle price is the "voice" component subject to the 911 fee). The opinion didn't address bundle-allocation but the federal floor and "class of subscribers" language are the operative limits.

Citations

Federal: 47 U.S.C. § 615a-1; § 615a-1(f)(1); § 151 et seq. (Communications Act of 1934); the New and Emerging Technologies 911 Improvement Act of 2008; the Wireless Communications and Public Safety Act of 1999 (Pub. L. 106-81). Tennessee: Tenn. Code Ann. § 7-86-103(9), (11); § 7-86-108; § 7-86-108(a)(1)(A); § 7-86-108(a)(1)(B)(i)(a), (b); § 7-86-108(a)(1)(B)(vi); § 7-86-108(a)(2)(A). Other states' comparable provisions: Colo. Rev. Stat. Ann. § 29-11-102(2)(a); Okla. Stat. Ann. tit. 63, § 2853; 35 Pa. Cons. Stat. Ann. § 5311.14; W. Va. Code § 7-1-3cc(b).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-109.pdf

Original opinion text

December 20, 2013

Opinion No. 13-109

Locally Collected 911 Fee for Wireline and Non-Wireline Telephones

QUESTION

Is there any legal impediment to changing the 911 funding model to authorize emergency communications districts ("ECDs") to collect the 911 service charge locally and at the current landline rates on both landline and all non-wireline telecommunications service capable of connecting a person dialing or entering the digits 911, with the single exception of cell-phone service?

OPINION

No. No such impediment exists in federal or Tennessee law.

ANALYSIS

The request provides the following background:

Under the current funding model, the 911 fees on landlines and non-wireline telecommunications service differ. The law authorizes each of the State's 100 emergency communications districts (ECDs) to collect a 911 service charge on landlines. The current 911 fees on landlines range up to a maximum of $1.50 for each residential line and $3.00 for each business line up to a maximum of 100 lines per location. In contrast, the Tennessee Emergency Communications Board (TECB) collects the 911 fee on all non-wireline telecommunications service capable of connecting a person using or dialing the digits 911 to a 911 call center. The non-wireline fee is $1.00 per user or subscriber per month.

The request then proposes the following method of funding:

The per line charge would be replaced by a per number charge up to a maximum of 100 numbers per business location for non-wireline telecommunications service. In short, the ECDs would collect 911 fees on all telecommunications service, both wireline and non-wireline, except cell phone service which would continue to be remitted to the TECB.

Currently, an ECD may impose "an emergency telephone service charge in an amount not to exceed sixty-five cents (65¢) per month for residence-classification service users, and not to exceed two dollars ($2.00) per month for business-classification service users." Tenn. Code Ann. § 7-86-108(a)(1)(A). An ECD may also "submit to the people of the district the question of whether to increase the emergency telephone service charge"; any such increase shall not exceed $1.50 per month for residence-classification service users and $3.00 per month for business-classification service users. Tenn. Code Ann. § 7-86-108(a)(2)(A). Those charges are, in effect, imposed only on users of wireline telephone service.

As to non-wireline service, Tenn. Code Ann. § 7-86-108(a)(1)(B)(i)(a) provides for "a flat statewide rate, not to exceed the business classification rate established in subdivision (a)(2)(A)." This statewide rate is set by the TECB, and the charge is paid to the TECB. Tenn. Code Ann. § 7-86-108(a)(1)(B)(i)(a) and (b). "Effective July 1, 2006," the statewide rate applies "to all subscribers and users of non-wireline service, to the extent such application is not inconsistent with the orders, rules and regulations of the federal communications commission." Tenn. Code Ann. § 7-86-108(a)(1)(B)(vi).

Under Tenn. Code Ann. § 7-86-103(11), "[n]on-wireline service" means any service provided by any person, corporation or entity, other than a service supplier as defined in this part, that connects a user dialing or entering the digits 911 to a PSAP, including, but not limited to, commercial mobile radio service ["CMRS"] and IP-enabled services.

And, under Tenn. Code Ann. § 7-86-103(9), "IP-enabled services" means services and applications making use of Internet protocol (IP) including, but not limited to, voice over IP and other services and applications provided through wireline, cable, wireless, and satellite facilities, and any other facility that may be provided in the future through platforms that may not be deployable at present, that are capable of connecting users dialing or entering the digits 911 to public safety answering points (PSAPs).

"Non-wireline service," therefore, consists at a minimum of both CMRS and IP-enabled service, which is also called "voice over Internet protocol" or "VOIP" service.

The separation of 911 charges into charges imposed on landline subscribers and collected locally by ECDs and charges imposed on "non-wireline service" subscribers and collected by the TECB results merely from the General Assembly's decision to fund 911 service in this manner, and not from any known legal or other requirement. Federal law states that "[i]t shall be the duty of each IP-enabled voice service provider to provide 9-1-1 service and enhanced 9-1-1 service." 47 U.S.C. § 615a-1. That statute further provides:

Nothing in this 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 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. For each class of subscribers to IP-enabled voice services, the fee or charge may not exceed the amount of any such fee or charge applicable to the same class of subscribers to telecommunications services.

47 U.S.C. § 615a-1(f)(1). Federal law, therefore, expressly preserves the ability of both state and local governments to impose 911 charges on IP-enabled subscribers, subject to the requirement that such charges be used exclusively for 911 operations and not discriminate within any particular class of subscribers. Some states have structured their funding models so that 911 charges on IP-enabled services are collected locally. See, e.g., Colo. Rev. Stat. Ann. § 29-11-102(2)(a); Okla. Stat. Ann. tit. 63, § 2853; 35 Pa. Cons. Stat. Ann. § 5311.14; W. Va. Code § 7-1-3cc(b). Accordingly, nothing would prevent the General Assembly from restricting the funding mechanism in Tenn. Code Ann. § 7-86-108 to allow for local collection of 911 charges on IP-enabled subscribers.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

JONATHAN N. WIKE
Senior Counsel

Requested by:

The Honorable Todd Gardenhire
State Senator
11A Legislative Plaza
Nashville, Tennessee 37243