On October 25, 2019 the FCC is expected to adopt a declaratory ruling in Docket 19-44 to ensure that all subscribers to 911 service through time-division multiplexed (TDM) service or through VoIP will have parity in the fees they pay to state authorities. The declaratory ruling would settle a dispute between BellSouth and some Alabama 911 jurisdictional districts and provide guidance to other states going forward.

The Alabama districts require 911 subscribers buying TDM services to pay one 911 charge per voice channel, but customers buying VoIP services must pay one 911 charge per telephone number. Because businesses typically obtain many more telephone numbers than voice channels, if a service is defined as interconnected VoIP, that customer with the same outbound calling capacity as a TDM customer would owe much more for 911 service.

The Districts allege that BellSouth failed to bill its customers all the 911 charges that the ETSA required and, therefore, failed to collect and remit all the 911 charges the ETSA required. The Districts have not alleged that BellSouth wrongfully retained any of the 911 charges that it collected. Rather, the Districts allege that BellSouth did not bill 911 charges on every “10-digit access number” provided to users of “VoIP or similar service,” as the Districts contend was required by Alabama Code § 11-98-5.1(c). They further claim that BellSouth is liable to the Districts for the amount of 911 charges that BellSouth failed to bill, plus interest. (BellSouth Petition for Declaratory Ruling, p. 4, Alabama Districts Petition for Declaratory Ruling, p. 5., written jointly).

The FCC believes that it must resolve this dispute because it frustrates Congressional intent to ensure regulatory parity with respect to 911 obligations and hinders the Commission’s own policy to promote and facilitate the industry’s transition to IP technology. According to the Commission:

The statutory provision at issue (the VoIP 911 Fee Parity Provision) [of the New and Emerging Technologies 911 Improvement Act of 2008 (the NET 911 Act)] provides that “[f]or 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.” The above-mentioned 911 fee disputes highlight the ambiguities of this statutory provision, particularly as to the meaning of the terms “amount,” “fee or charge,” and “same class of subscribers. (Draft Declaratory Ruling, Docket v19-44, at para. 9.)

Based on its reading of the NET 911 Act, the Commission declares that

the VoIP 911 Fee Parity Provision prohibits non-federal governmental entities from imposing 911 fees or charges on VoIP services in any manner that would result in a subscriber to such VoIP services paying a total amount of 911 fees or charges that exceeds the total amount of 911 fees or charges that the same subscriber would pay for a traditional telecommunications service with the same 911 outbound calling capability or same quantity of units upon which 911 fees are imposed for traditional telecommunications services. We find this statutory interpretation best effectuates long-standing goals to promote and enhance public safety by facilitating the rapid deployment of VoIP 911 services and to promote and facilitate the transition from legacy, TDM-based services to next-generation, IP-based services for the benefit of all Americans. (Id.)

With its new interpretation of 911 fees, the FCC defers to the Alabama District Court, which heard this dispute originally to make a final decision whether its newly established rules preempt Alabama laws.

The Commission tries to help states by providing some examples of potential discriminatory 911 fee structures that would violate the VoIP 911 fee parity rule:

911 Fee Per Subscriber Caps - A state statute or regulation that caps the number of 911 fees that may be charged per subscriber for telecommunications service, but does not similarly cap the number of 911 fees that can be charged to the same class of VoIP subscribers, could be applied in a manner that would violate the VoIP 911 Fee Parity Provision.

911 Fees Based on Different Units of Assessment - When the total 911 fees or charges for VoIP subscribers exceeds the total 911 fees or charges for traditional TDM-based customers for the same outbound 911 calling capacity because the 911 fee imposed applies to different units of measurement, for example, assessing telecommunications services on a per-line basis but assessing VoIP subscribers on a per-telephone-number basis.

The declaratory ruling, which we completely agree with, will become effective upon its release.