Archive for March, 2017

Improved Staff Openness & New Priorities

Wednesday, March 22nd, 2017

One of the hallmarks of any successful organization is open, effective internal communication.  The FCC is no different, and the sharing of such information is critical in the decision-making process, whether it be simple facts and data points or more complicated analysis and expert opinion.  So in my past interactions with the wonderful professional staff during the prior Commission, it was disappointing to find that reticence sometimes seemed to be the order of the day, rather than a free-flowing exchange.  I have always strived to maintain open lines of communication throughout the agency, through regular meetings with the leadership of Bureaus and Offices, but in too many conversations, some of the most knowledgeable people in the building seemed to be under direction not to share certain information or answer certain questions.  Sometimes I would get a wry smile, other times it was a blank stare, and occasionally there was a more honest response that the information wouldn’t be forthcoming.  Frustrating indeed.

I certainly respect the need to prevent the release of sensitive information and prevent staff from wasting their time on endless requests.  At the same time, there is a difference between asking staff to share data points needed to make a decision and seeking internal deliberative work that could undermine the Chairman’s agenda, which is certainly a much smaller universe.  Commissioners can be informed if a project request is too time-consuming or staff intensive to see if modifications can be accommodated.

So, one of Chairman Pai’s most welcomed, yet least noted, process reforms has been his unequivocal direction that staff should be completely up front with all Commissioners, not just the Chairman.  The message from the Chairman was that all staff will not withhold information requested by Commissioners or fail to share information that is pertinent to the many matters before us.  This should be very liberating for staff as they don’t have to worry about being sent to the proverbial doghouse for helping Commissioners do their jobs.

While in some ways it might be easier for me as a member of the new majority to get my questions answered, I recognize that it places minority Commissioners in a terrible position, and I believe no one should ever be put in that position again.  Add this one to the list of reforms for which Chairman Pai should be congratulated.  It is also one that needs to be memorialized in a complete update of the Commission’s internal rulebook so the next Commission follows the same improvements.

New Priorities and Workload

At a time when Commission leadership has changed and is reconsidering and reconstructing its approach to many issues across the agency, there needs to be a realization from everyone that those priorities of the past Commission – not directly required by statute – should not necessarily be the focus of staff time.  With resources at such a relative premium, staff attention shouldn’t be spent pursuing outdated goals.  This concept should apply not only to our policy bureaus but the enforcement shop as well.  And it’s more than just deleting Brutus Buckeye from our memory banks.  For instance, it wouldn’t make sense to have staff still focus their valuable time on those cybersecurity and privacy issues over which the Commission lacks statutory authority.  Moreover, our enforcement staff should move away from headline grabbing and eye popping penalties that will never be collected.  Let’s refocus our attention on our statutory responsibilities and realize a new Chairman gets to set the Commission’s agenda.

*             *             *

It is my hope that Commissioners and staff alike will embrace the new spirit of openness and take the step of getting on the same page.  This has the best chance of producing lasting and positive changes for Americans.     

On the Road in the Industrial Midwest

Monday, March 20th, 2017

Famed American writer Jack Kerouac’s masterpiece “On the Road” was published six decades ago this year. In the book, Kerouac conveyed a sense of the energy the main characters found away from home. As narrator Sal Paradise puts it, “all I wanted to do was . . . go and find out what everybody was doing all over the country.”

Inspired a bit by Kerouac, I hit the road last week. I visited Pittsburgh, Youngstown, Cleveland, and Detroit. Some might not think of these as glamorous travel destinations — but that’s precisely why I went.

This proud region of the United States built our country. Our bridges were built with their steel and sweat. Our wars were won with their sons and daughters. Yet too many in these communities feel left behind. They are worried about the future. They are concerned that the good jobs that made these cities prosperous manufacturing hubs or steel towns in the 20th century are not coming back.

Many had written off these former industrial powerhouses as early as the 1970s. Some still don’t think of them as much more than fading tributes to the Rust Belt’s legacy. But I had a feeling there was a lot I could learn there — and I was right.

There’s a sense of hope in the places I visited, a sense driven by a determination to adjust to the changing economy and to pursue the opportunities presented by the digital age.

I started off my trip at Carnegie Mellon University’s Software Engineering Institute, where I gave my first major policy address since becoming Chairman of the Federal Communications Commission. The gist of it was this: I believe that every American who wants to participate in our digital economy should be able to do so. Broadband Internet access shouldn’t depend on who you are or where you’re from. I also believe in the power of Internet-based technologies to create jobs, grow our economy, and improve people’s lives in countless ways. High-speed Internet access, or broadband, is giving entrepreneurs anywhere an unprecedented chance to disrupt entire industries and transform our country.

That’s why my primary focus at the FCC is ensuring that we use every tool in the toolbox to boost broadband deployment throughout our country. I know that consumers everywhere want better, faster, and cheaper broadband. And I know that there’s no limit to what Americans can achieve — from Detroit, Michigan to Sioux Falls, South Dakota to Reno, Nevada — if they’re given the opportunity to take advantage of these next-generation networks.

I had a chance to see these principles in action during my trip through the Industrial Midwest. I heard firsthand about the promise and perils of broadband deployment; about the entrepreneurship that was sprouting up along the way; and about the established companies that are creating jobs and innovating in these cities.

(Oh, and I randomly ran into Calvin Johnson, the former Detroit Lions wide receiver, future Hall of Famer, and aptly-named Megatron.)

1. Broadband Deployment

With respect to broadband deployment, I saw how companies are building — or at least trying to build — next-generation networks. For instance, in Detroit, I visited competitive upstart Rocket Fiber. The company’s executive team started things off with a discussion about regulatory roadblocks. They had to get signoffs from multiple city agencies, none of which seemed to think that time was of the essence. And they had to get access to a large number of poles at a reasonable cost, which wasn’t easy; the city at first sought a very high price for pole access (using as a benchmark the high rate charged to another broadband provider for access to just three poles). Fortunately, Rocket Fiber did manage to have conduit installed while the city was building the QLine streetcar; this is a big aid to deployment, which illustrates why I’ve called for “dig once” to be part of our national transportation policy.

The challenge of deployment isn’t limited to urban areas. I drove to a very small town outside Pittsburgh to check out a rural cable headend owned by Armstrong, a family-owned and -operated business. The rows of servers and power supplies and other equipment were humming along smoothly, providing service to thousands of customers in Pennsylvania and neighboring states. But what really impressed me was a series of maps which detailed Armstrong’s service territory along with population density, average income, and more. Armstrong is offering 100 Mbps or greater Internet access service to customers in areas with relatively few people per square mile and with less than the national median income (each of which tends to limit returns on infrastructure investment). But thanks to initiatives like the FCC’s recent decision to devote $170 million to increase deployment in upstate New York — the first vote under my Chairmanship — they’re going to lay more fiber and connect more potential customers.

2. Entrepreneurs are Thriving

As I said at Carnegie Mellon, “High-speed Internet access, or broadband, is giving rise to what I have called the democratization of entrepreneurship. With a powerful plan and a digital connection, you can raise capital, start a business, immediately reach a worldwide customer base, and disrupt an entire industry.” More and more innovators in Pittsburgh, Youngstown, Cleveland, and Detroit are proving how true this is.

For instance, in Pittsburgh, I had the privilege of meeting Priya Narasimhan, a Carnegie Mellon professor. Several years ago, she was at a Pittsburgh Penguins game. Being somewhat shorter of stature, she couldn’t see the action on the ice. And she wondered why, with all the smartphones out there, she couldn’t access information easily on her mobile device. So she founded YinzCam. Among other things, the company creates apps for sports teams and sporting venues and sets up beacons that allow highly-localized information to be distributed to fans. Their clients now include many National Football League, National Basketball Association, National Collegiate Athletic Association, and National Hockey League teams — including, yes, her beloved Penguins. (And on a personal note, it was gratifying to me as an Indian-American to hear her story: her family came to America via India and Zambia, and she is a great role model for Indian-Americans and women in STEM fields.)

I also had the chance to meet with the team at Duolingo, a Pittsburgh startup. Duolingo created a mobile app that allows people to learn new languages for free. It now has something like 80 million users around the world (about 20% of whom are in the United States). It was fascinating to learn about how they are developing revenue streams, how they essentially crowdsource lesson plans for new language courses, how they are trying to enter foreign markets, and how mobile connectivity is critical for the company and users alike.

But it wasn’t just Pittsburgh. One of my favorite events took place in Youngstown, where I had the honor of being hosted by the top-ranked Youngstown Business Incubator (YBI). YBI’s Jim Cossler, an entrepreneurial force of nature and a champion of northeastern Ohio’s potential, led a roundtable with innovative area startups and me. So many fascinating stories! There was Hudson Fasteners, a family-owned company going back to 1946. It once sold things like nuts, bolts, and screws in a bricks-and-mortar store and kept inventory on notecards until the 1990s. Today, third-generation owners Lisa Kleinhandler and Cris Young have created an online sales platform that they say “put[s] the FAST in fasteners.” There was Enyx Studios, a virtual reality gaming company that kindly allowed yours truly to demonstrate his (virtual, anyway) incompetence during a demo. There was FoodECrave, a company that specializes in delivering perishable foods, especially meats, to small businesses and gourmands. There was MedaSync, a health care startup which created software that combines clinical and cost data to secure better outcomes for nursing home patients. And there was Ving!, founded by serial entrepreneur and Youngstown native Tony DeAscentis. Way back when, Tony left the area for tech jobs in big cities faraway. But now he’s back, and with Ving!, he’s aiming to help companies and individuals share more easily, and better understand third-party engagement with, their digital information. Later on at YBI, I spent time at America Makes, a national accelerator for additive manufacturing and 3D printing.

In short, there was a lot of energy and enthusiasm in that room, not least from me (and I’m not just saying that because my in-laws, who live near Youngstown, were in attendance!).

I’d be remiss if I didn’t mention that the Motor City, too, is motoring thanks to startups. There are a lot of smart, dedicated entrepreneurs helping to build a better Detroit as they build new businesses. Workit Health’s Lisa McLaughlin is taking addiction treatment mobile with an online platform that is private and personalized. Lunar’s Hunter Rosenblume has started a wireless company that provides talk, text, and data services without monthly fees. And CityInsight’s Abess Makki aims to connect municipal governments with constituents through mobile technology, starting with an app that enables residents to track water usage in real time and manage billing.

These entrepreneurs are helping the so-called Rust Belt shake off the rust. They exemplify the spirit of Kerouac’s lead character, who said “we lean forward to the next crazy venture beneath the skies.” And they illustrate the importance of high-speed Internet access anywhere — with broadband, they can grow and thrive in soil once considered hostile to tech-based entrepreneurship.

3. Established Entities are Innovating, Too.

One of the other insights I drew from the upper Midwest is that established entities, too, are innovating. For instance, I’ve long believed that better broadband access could dramatically improve health care accessibility and outcomes. While in Ohio, I witnessed that for myself. At the Cleveland Clinic, a group focused on clinical transformation told and showed me how it is developing telemedicine in innovative ways. It’s using the Internet to connect health care providers with patients at locations as far away as Florida. It’s set up a mobile stroke unit, cutting by an average of 38 minutes the time needed to assess and stabilize a stroke patient (precious minutes, indeed: such patients lose approximately 2 million brain cells each minute they’re untreated).

And it’s established a mobile platform on which patients can easily see which providers are available, schedule impromptu or later appointments, and even send pictures of problem areas, like a skin lesion. (Notably, I was told that the typical user of this service is a mother of two in her 30s; that made me think of all the time and money she would save by not having to take time off work, find alternative child care arrangements, drive to the Clinic, and the like.)

The Cleveland Clinic was an appropriate setting for the announcement that under my Chairmanship, the FCC will continue our work on our Connect2HealthFCC Task Force, the purpose of which is to “explor[e] the intersection of broadband, advanced technology and health and further charting the broadband future of health care.” I look forward to further collaboration with my colleague Commissioner Mignon Clyburn, who is leading our efforts on this important issue.

Later in the trip, I visited General Motors, one of the country’s best-known automakers. I learned about the team’s efforts to develop safety-related technologies to cut down on crashes. And I was impressed by the OnStar team’s discussion of how over the past twenty-plus years, the service had morphed from a curious feature to a sometimes life-saving connection. I could see on a massive dashboard how OnStar users everywhere were pinging the service. That brought home to me the unintended, serendipitous consequences of technology: the OnStar team probably never dreamed in the 1990s that their technology would be used by an American driver to help get information on delivering a child in a GM, or by a Chinese driver to propose to his then-girlfriend, but that’s how it turned out.

Finally, and consistent with the theme of major technology companies setting up shop in Pittsburgh, I visited Amazon. Amazon recently opened an office in a revitalized neighborhood in Pittsburgh. I had the opportunity to meet with core members of the team working on “machine translation” — essentially, allowing speech recognition technologies like Alexa operate better. It was interesting to hear how they try to teach Alexa to factor in strong accents or focus on a particular voice. These aren’t easy problems to solve, but the Amazon team is hard at work solving them — and they’re doing it in what was once a run-down part of the Steel City.

* * *

Sal memorably conveys his sense of optimism in “On the Road” when he says “Nothing behind me, everything ahead of me, as is ever so on the road.” That’s how many people seemed to feel in Pittsburgh, Youngstown, Cleveland, and Detroit, and that’s how I feel too. Spending last week there has made me more hopeful about our nation’s future and the potential for high-speed Internet connectivity to help revitalize parts of our country facing economic challenges. And it’s renewed my determination to pursue policies that will promote broadband deployment. We must bring the benefits of the digital age to all Americans, not just those living on the coasts. I look forward to continuing that work, both back here at the FCC and the next time I’m on the road.

New Tower Marking Provision Could Use Tweaks

Friday, March 10th, 2017

Having worked on numerous legislative efforts over the years, I have seen that it is not uncommon for very well-intentioned provisions contained within larger bills passed by Congress and enacted into law to lead to unintended negative consequences.[1]  One such provision recently enacted in an FAA Authorization statute is causing a considerable level of unrest within affected communications industries.  Specifically, section 2110 of the FAA Extension, Safety and Security Act of 2016 requires improved physical markings and/or lighting on various small to medium sized towers (i.e., those between 50 and 200 feet above sea level).  If implemented literally, the provision will force expensive retrofits to potentially 50,000 existing towers, such as wireless communications and certain broadcast towers, all new towers that meet the broad definition, and raise tower prices for the next generation of wireless services – all with little gain to air safety.  I humbly suggest that a few helpful tweaks to the text could be in order.   

It’s been portrayed that the scope of section 2110 was intended to be fairly narrow.  A number of articles and press stories indicate that it was designed to address the threat that small, low-flying aircraft, such as crop dusting planes, may face from temporary meteorological testing towers (METs),[2] a small subset of towers.  This also seems relatively consistent with the National Transportation Safety Board’s (NTSB) 2013 safety recommendations to the Federal Aviation Administration (FAA) and its 2014 Special Investigation Report on the Safety of Agricultural Aircraft Operations.  While there is little legislative history to review, the provision’s requirements apply to certain towers located outside incorporated cities and towns, on undeveloped land or land used for agricultural purposes.  It excludes those towers that 1) are adjacent to a house, barn, electric utility station, or other building; 2) are within the curtilage of a farmstead; 3) support electric utility transmission or distribution lines; 4) consist of certain wind-powered electrical generators; or 5) serve as street lights. 

While the original intent of the provision may have been narrow, the language on its face is fairly broad, and therein lies the problem.  In essence, those structures that are not specifically carved out are captured.  That means that existing and future mid-sized communications towers throughout rural America are included.  Unfortunately, getting service to these areas has been a real challenge for the private sector and the Commission, mainly for economic reasons.  By raising the siting costs with new marking mandates, it is harder for companies to justify the investments and any current or future deployments.  In other words, if a wireless company has limited dollars to invest, this provision could lead them to direct those funds to areas that are not affected by this provision.  This also may make the business case for bringing future 5G wireless services, which are likely to require even more poles to support a small cell network, to rural America even more challenging than it already is.  Further, it could hinder the incentive auction television station repack and the implementation of ATSC 3.0, which is a broadcasting standard designed to provide greater service options.  Like many, I have argued repeatedly that we should remove barriers to the deployment of new wireless infrastructure, not add further ones unless absolutely necessary.

In addition, the statutory provision excludes certain categories of locations or those with proximity to specific technologies, which teeters on the edge of unequal application.  It is perplexing that some technologies are specifically exempted, but permanent and non-moving communications towers appear not to be.  In particular, is there any data suggesting wireless or broadcast towers are more susceptible to be air safety hazards than towers used for electric utility transmission or wind turbines?  It would seem appropriate that communications towers should be treated similarly to those structures.  

Adding to the overall difficulty, the text of the statute provides questionable flexibility to the Administrator of the Federal Aviation Administration (FAA).  Arguably, the only way the Administrator could exclude a category of towers would be to redesign the tower marking guidance as part of the regulations required by the provision.  But we all know that this takes time and is quite an extensive process with an unclear outcome.  Without relief, communications companies will be forced to spend thousands of dollars per tower – potentially hundreds of millions nationwide – to come into compliance or face significant FAA penalties, and potentially FCC enforcement action, since we follow the FAA’s lead.  This suggests a small legislative fix may be the best path to adequately address the issue.

I do not want to discourage or discredit any effort to protect the lives of those that fly agricultural aircraft or those on the ground.  In terms of air safety for smaller agriculture planes, however, there seems to be misconception that communications towers have served as a significant impediment or threat.  Even the NTSB’s Special Investigation showed that of the 78 small aircraft accidents in 2013 only 16 were involved in some type of in-flight collision with an obstacle.  While this may seem significant, it includes those instances in which the pilot was previously aware of the obstacle, meaning new marking requirements would have been ineffective, and those involving non-communications related obstacles, such as trees or METs.  Taking that into account, the data showed only two accidents involving communications towers.  Not to mention, other problems, such as pilot fatigue and mechanical failure, present an equal or greater threat to agricultural pilots.    

In fairness, big communications companies can generally defend themselves, as needed.  But, the communications industry is not monolithic.  There are thousands of smaller providers, such as wireless broadband providers (commonly referred to as WISPs), that use wireless towers to bring service to the hardest to reach consumers.  Accordingly, the added cost of this new mandate could impact their ability to grow or even survive.  Plus, there are new responsibilities to map the applicable areas to which section 2110 applies, requirements to participate in and potentially fund a database of existing towers in these areas, and overall compliance costs that add to the burdens for small providers.  Moreover, in most instances, the costs of the marking requirements will be passed onto consumers, which is my main worry.  Increasing the costs of communications services for lower and middle-income Americans should cause everyone concern, as it decreases adoption rates and deprives these families of technological benefits.

*             *             *

Mandating new marking and/or lighting burdens for certain temporary aerial towers to aid agricultural pilots is a laudable goal.  However, the new statutory provision may have been drafted broader than intended and, as a result, it unnecessarily captures permanent communications towers that have little overall impact on agricultural air safety.  Taken together, it would seem that a small legislative fix to clearly exempt these towers or require the FAA Administrator to do so would be appropriate.  


[1] Generally, I have avoided critiquing legislation passed by Congress without invitation.  This is an attempt to highlight a potential unintended consequence, rather than criticism. 

[2] METs are temporary towers installed to measure wind speed and direction during development of wind energy conversion facilities and many times the locations are not disclosed for competitive reasons.  

Taking Stock of FCC Paperwork Burdens

Friday, March 3rd, 2017

I am pleased that the Commission has begun to take steps to review eliminate unnecessary burdens on the communications industry.[1]   It is a worthy task, and something I have been advocating for since I arrived at the agency almost three and half years ago. As the Commission embarks on these efforts, I thought it would be helpful to understand the current state of play. There are many types of costs that an agency can put on regulatees, but lacking solid information on most burdens due to the absence of cost-benefit analyses in prior items, I want to at least highlight one category of costs that the agency is required to track: paperwork burdens.

The Paperwork Reduction Act (PRA) requires the FCC to seek Office of Management and Budget (OMB) approval before asking entities to fill out forms, maintain records, or disclose information to others. The intent was to require agencies to carefully consider the need for additional information before collecting it, thereby minimizing burdens. Once approved, the cost estimates are posted online and searchable by agency.

Even I was a bit surprised to see the extent of the FCC’s information collection efforts, which seem disproportionately costly. According to OMB, as of the end of February, the FCC has 423 active collections demanding 457,355,706 responses each year requiring a total of 73,200,049 hours to complete at a total cost of $798,204,803. In short hand, that’s 73 million hours and $800 million annually just to fill out FCC paperwork, and there is a decent chance that these figures are lowballed. That is well above the cost figures of several other major agencies, as seen below.

Agency Total Cost of Active Information Collections
Department of Education $305,014
Department of Housing & Urban Development $1,942,728
Department of Veterans Affairs $11,141,104
Department of Energy $49,550,308
Department of the Interior $178,634,533
Department of Agriculture $397,848,225
FCC $798,204,803

While I strongly believe in data driven decision making and the need to ensure accountability, I have to question how much of the existing information collection is truly justified. I’ve observed that every new FCC policy seems to require a brand new data collection. And, once in place, the rules can live on long past their usefulness. Moreover, without sufficient coordination within the agency, the burdens can pile up without any clear understanding of the total burden on any given segment of the industry.

For example, I have heard from small rural telephone companies that now have to make close to 100 filings with the FCC each year. That’s a significant amount of time and resources that are being diverted away from delivering service to consumers. Last March, the Commission sought comment on eliminating several types of burdens on these providers, which I viewed as the tip of the iceberg. The Commission even observed that these small companies may be subject to duplicative sets of network outage reporting requirements and sought comment on whether to eliminate one set. Almost a year later, the Notice remains pending. In addition to acting quickly on these known problems, the agency should complete a holistic data review to determine which collections remain necessary, look at ways to streamline those collections, and eliminate those that are duplicative or unnecessary.

I am also troubled that the Commission does not currently track burdens by industry segment or even by size. The Regulatory Flexibility Act (RFA) requires federal agencies to review regulations for their impact on small businesses and consider less burdensome alternatives. Therefore, in each rulemaking item, there is a lengthy appendix listing all of the types of small entities impacted by the Commission’s action. I asked our Office of Communications Business Opportunities, which is the agency’s small business liaison, for information on the total burdens on each type of small business regulated by the agency, as well as the number of times that the Commission considered but declined to make accommodations for small businesses. However, they were unable to provide the requested information because they do not keep track of it. In fact, the response was that it is not required under the Regulatory Flexibility Act, the Paperwork Reduction Act, or any executive order. This explanation completely missed the point. These data points and other basic data should be available to help us understand the impact of the Commission’s activities. Therefore, I recommend that, going forward, we require OCBO to begin tracking this information. At a minimum, the agency should be able to catalog and track the paperwork burdens imposed on small providers given that it is already required to calculate those costs for PRA and already specifies which small providers are impacted by rule changes for purposes of the RFA. Combining the two should not be too hard, and would be worth the effort.

At the same time, the Commission should enthusiastically embrace – whether required to do so or voluntarily – the Administration’s Executive Order creating regulatory reform officers and agency regulatory reform task forces. The idea is simple: assemble dedicated people in each government agency to make recommendations to repeal or simplify existing regulations that are unnecessary, burdensome or harmful to the economy. While seemingly repetitive of efforts already underway, it has some unique proprieties that could generate new reform ideas not considered or explored before. In the end, it’s a sound and worthy goal to provide strong and vibrant American industries to employee Americans and improve economic productivity. One of the first jobs of the new FCC task force should be to examine our paperwork burdens.

*             *             *

As I’ve said before, regulations impose costs on companies and, ultimately, consumers. We must be careful not to place undue burdens on companies whether in specific rulemakings, or as the product of cumulative Commission actions. By tracking and regularly reviewing the requirements we put on providers, we can better ensure that the costs we do impose are narrowly tailored and truly warranted.

 


[1] This is being done both informally on an ad-hoc basis and as part of the Commission’s biennial review obligations under Section 11 of the Communications Act. .

Springing Forward for the Public Interest: The FCC’s March Agenda

Thursday, March 2nd, 2017

March 2, 2017 – 1: forty five pm

Ajit Pai | FCC Chairman

States Must Stop Raiding 9-1-1 Fees

Wednesday, March 1st, 2017

It is unconscionable that some states divert fees collected for legitimate and needed 9-1-1 communications capabilities to unrelated purposes, threatening the public’s safety for short-term budget relief.  After almost fifteen years of working on the problem, we are no closer to resolving it.[1]  I suggest that the appropriate policymakers must implement new measures to end this practice once and for all.  This may require uncomfortable conversations with states or taking forceful actions, as suggested below, but the current mechanism of shame and hope isn’t working.

On a daily basis, we ask our nation’s public safety officials to risk their lives on behalf of their fellow Americans.  They run into burning buildings, stand in the line of fire, provide our loved ones’ emergency care and do countless other acts of bravery.  The thanks some of these heroes get for their efforts is the siphoning off of needed resources intended to ensure their localized 9-1-1 systems are as modern as possible.  The inability or unwillingness to tackle this issue is equivalent to tying public safety officials’ hands behind their backs during a major crisis and praying that things will work out.  It isn’t right and it isn’t smart.

Today, the collection of 9-1-1 fees and surcharges is a hodgepodge of differing methods and levels by various states, tribal lands and U.S. territories.  As the National Emergency Number Association’s (NENA) latest chart indicates, there is little consistency in the amounts that entities charge, and this doesn’t include any additional surcharges imposed by some individual counties localities.  Specifically, NENA’s data shows that consumers of communications services are paying a fee up to $1.75 per service per month to providers, who then are periodically required to remit the 9-1-1 fees to some state agency or organization.  Moreover, according to the FCC’s recent report on the issue, states and territories collected over $2.6 billion in 2015 for 9-1-1 services under this fee structure.

Despite the intended purpose of 9-1-1 fees, some states have diverted these resources to non-related or, worse yet, non-public safety purposes.  In fact, the Commission’s report highlights that eight states and one territory diverted almost $220.3 million from 9-1-1 functions.[2]  These states (i.e., Illinois, Iowa, New Hampshire, New Jersey, New York, Rhode Island, Washington, West Virginia,) and Puerto Rico were found to have diverted approximately 8.4 percent of the total nationwide collections.  Upon closer inspection, however, the actual story is much worse for residents in those states and surrounding areas. Consider that the diversion rates in New York, Rhode Island and New Jersey were 42 percent, 68.4 percent and 89.9 percent, respectively.  Far from being de minimis amounts, these substantial redistributions undermine the ability of local public safety emergency call centers to modernize, such as adopting and migrating to Next Generation 9-1-1 systems (NG911).

Some people argue that this is not a real problem because diverting states generally maintain reserve balances to pay operating costs as needed or that the entire issue will be take care of itself naturally once the economy improves.  Both of these lines of thinking are easily dismissed.  Even if a state is just diverting current collections because it maintains underlying balances in an existing account, the diversion generally prevents new investment in costlier, future networks as states don’t want to deplete their accounts in total.  In other words, just paying to maintain older, outdated networks does not allow for growth, advancement or new technologies.  But we all know that significant investment – not just maintenance – is going to be necessary to develop and implement NG911 and Federal assistance in the form of grants under the Spectrum Act is rightfully precluded from going to diverting states.  

And this is not just one instance of bad behavior.  Consider how many of this year’s eight states are repeat offenders.  No fewer than four were in the Commission’s first report on the topic in 2009 and others have been in the club before.  Moreover, new states are seeking to join or rejoin the party, seeing few barriers or repercussions from anyone but public outcry.  Take for instance, the latest effort by Montana’s Governor, to repurpose $12.2 million of 9-1-1 reserves into its general fund to cover budget deficits.  Thankfully, that effort seems stymied, but it’s only a matter of time before the next “innovative” state tries the same.

Potential Remedies

I understand why some see this as a vexing problem to solve.  It involves tax policy, jurisdictional lines, federalism, public safety, and consumers.  But if we are going to get serious about really resolving the problem, we need to get past these impediments.  Here are three non-mutually exclusive ideas for the Commission to increase the pressure and force states to end this despicable practice: 

  • Interstate Services Prohibition – The Commission maintains sole jurisdiction over interstate communications services and, as such, we retain the right to bar diverting states from imposing 9-1-1 fees on the interstate calls.  That means a good percentage of wireless services, landline voice services and all VoIP services, at least in my opinion, would be off limits for such states, while ensuring no greater burdens on affected industry.  In fact, the NET 911 Improvement Act of 2008 specifically protects a state’s authority to collect 9-1-1 fees on VoIP and wireless services, unless funds are diverted by a state.[3]  By prohibiting interstate services from being included as revenue sources, the pot of money diverting states would have to pickpocket would be minimized, sending a strong signal that the Commission is no longer going to sit on the sidelines with regards to this matter.  Moreover, we should not burden interstate services with activities that are at odds with federal policy.  This would be similar to universal service where states may assess fees on intrastate services, but only to the extent that doing so would not be inconsistent with the Commission’s rules.
  • Prohibit Collection and Remittance by Providers – The Commission has previously prevented communications providers from including misrepresentations or inaccurate information in requisite consumer bills.  And it prohibits providers from collecting universal service fees in excess of what is required for the universal service fund.  For diverting states, the collection of funds above what will be spent directly on 9-1-1 services is by definition misleading to consumers.  The Commission can prevent any providers from collecting such funds or requiring them to remit the funds to diverting states.  As part of this effort, the Commission could also define what are inappropriate uses of 9-1-1 funds and ensure providers are held harmless in the process.
  • Commission Advisory Committees – The ability to serve on Commission Advisory Committees is a privilege, not a right.  As such, the Commission can and should exclude any person from a diverting state from participating on an advisory committee, and this can be done without losing valuable advice.  There are plenty of people able and willing to serve on our committees without including those from diverting states.  This idea was raised, but never fully considered, as part of a recent Commission Task Force.

In addition to Commission options, Congress has full ability to correct diverting states’ practices either by directly applying existing law or by exerting necessary leverage via its extensive grants and funding regimes.

*             *             *

If diverting 9-1-1 fees were a practice instituted by a private company, the Commission (and states) would have already thrown the enforcement book at them for gross negligence and misrepresentation.  Yet, we somehow have permitted states to divert necessary 9-1-1 resources or collect more than is necessary as if it were an acceptable practice.  It’s time for that to end.  

 


[1] I am far from the first government official to have raised this issue or the need for a solution.  Beyond my colleagues at the Commission, many Members of the U.S. House and Senate have examined this issue as precursors to the provisions contained in the NET 911 Improvement Act of 2008.  For example, see the discussion in the Senate Committee on Commerce, Science, and Transportation Report entitled “The Enhanced 911 Emergency Communications Act of 2003.”  S. Rep. No. 109-130, at 3 (2003), https://www.congress.gov/congressional-report/108th-congress/senate-report/130/1.

[2] For some reason, Missouri hasn’t ever responded to the Commission’s yearly request for information. 

[3] New and Emerging Technologies 911 Improvement Act of 2008 § 101, 47 U.S.C. § 615a-1(f) (2008) (“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.”).