National Movement Against State 911 Fee Diversion Not Slowed by Collins Trouble, Says O'Rielly

Emergency-number experts said denying next-generation 911 funding to diverters may be ineffective. State 911 administrators worry national rules could punish more than bad actors.

Lance is taking over as the lead Republican sponsor of HR-6424 due to the legal and ethical troubles Collins is facing (see 1808090036), Capitol Hill aides and industry lobbyists told us. The bill, which Collins filed last month, would bar states from engaging in 911 fee moves and give the FCC the power to decide on “acceptable” uses for the money (see 1807190038).

“We’ll be leading the effort,” a Lance aide said. Eshoo remains HR-6424’s lead Democratic sponsor, and Rep. John Faso, R-N.Y., signed on as a co-sponsor. Collins’ office didn’t comment on whether he will formally withdraw as a bill sponsor. House Speaker Paul Ryan, R-Wis., removed Collins from the House Commerce Committee earlier this month until federal insider trading allegations against the GOP lawmaker are resolved.

The indictment “shouldn’t be too problematic for the overall effort” that’s gaining steam, said O’Rielly, calling Friday from a train to New Jersey, where he and Lance visited a Hunterdon County 911 center and spoke on fee reallocation and pirate radio. Lance and Eshoo are “more than capable with leading the effort," O’Rielly said. He hopes for a hearing and markup next month. The bill is “incredibly important” to addressing “recalcitrant” states New York, New Jersey, Rhode Island and West Virginia, he said. Rhode Island declined to comment and the other states didn’t comment. The FCC could act without legislation, but a law would provide guidance and may prevent litigation, O’Rielly said.

Shining Light

“We’ve shined a light on the fact that fee diversion is happening,” Collins told us before the House began its five-week August recess. “Most people would never have expected that any state would be diverting those fees for another purpose. ... This is really aimed at closing a loophole.” Collins said he's encouraged by substantial interest in HR-6424 from House Commerce Chairman Greg Walden, R-Ore., and other committee leaders. Walden and other committee GOP leaders sought an FCC update in July on states’ 911 fee movements and their impact soon after HR-6424’s filing (see 1807230031).

Collins acknowledged limited time this Congress to advance HR-6424 but believes even the bill’s introduction “could” prompt state governments to re-evaluate practices. Venable communications lawyer Jamie Barnett agreed: “To have a federal-level bill looming may create a great deal of focus” within state governments. “Even if [HR-6424] doesn’t make it through during this Congress, it will still have the effect of tamping down the practice, which is important because there are not enough funds to do everything that needs to be done on 911 modernization,” he said.

Shining a light on inappropriate 911 fee shifting helps but "doesn't directly preclude states from diverting fees,” said NG-911 Institute Executive Director Patrick Halley: “Bad actors will remain bad actors unless there's a sufficient carrot.” Policymakers stopped Puerto Rico from diverting fees by threatening to withhold USF funding, but neither the $40 million in 911 grants awarded by Congress nor the upcoming more than $100 million NG-911 grant program is likely large enough to stop a state that gets tens or hundreds of millions of dollars from 911 fees, he said.

Increased national visibility may prompt states to think twice about raiding funds, said National Association of State 911 Administrators (NASNA) Executive Director Evelyn Bailey. Withholding NG-911 grants may deter some governors, but others may calculate that filling a large budget shortfall outweighs missing a $1 million 911 grant, she said. Taking away a state’s 911 funding punishes the very state emergency programs being raided by the legislature or governor’s office, she said. Threatening federal funding for highways may be more persuasive, she said.

HR-6424 will increase public pressure for state-level changes, as will “the open grant applications process” for the more than $100 million NG-911 grant program being administered by NTIA and the National Highway Traffic Safety Administration, said National Emergency Number Association Government Affairs Director Dan Henry. The federal agencies are barred from making grants available to jurisdictions that divert 911 fees. The bill is “an important step in the right direction, especially to the extent that it opens up a dialogue,” Henry said: "The 911 authorities in the vast majority of states” are independent of the state’s executive and legislative branches and so may be hurt by both fee diversion and being cut off from federal funds. “The faster that we can turn into a fee reform discussion” and talk “about how to get [the NG-911 transition] funded in a sustainable and predictable manner, the better,” Henry said.

Federal Overreach?

Some fear federal encroachment.

“It’s problematic for the federal government to try and define what states can spend their 911 fees on,” Bailey said. NASNA opposes sweeping 911-specific funds for unrelated uses, which most states don’t do, she said. “It’s sort of like using the nuclear bomb to solve a small problem.” What constitutes an eligible use varies,” and “some states feel that the line between a 911 call for help and the dispatch of first responders who are going to provide that help is a state issue.” States that include land-mobile radio as an eligible use do so for public safety and “exercise strict accountability for the use of those funds within that expanded scope,” she said.

Understanding how fees are collected and spent at state and local levels “should certainly inform the federal deliberations," Halley said. "You certainly don't want to do anything that steps on the toes of states that are trying to do the right thing."

Losing an NG-911 grant may not be a big deal for one state, but conditioning that program is a first step that may encourage such rules in other grant programs, responded O’Rielly, saying one possibility is homeland security grants. National rules can be narrowly tailored to bad actors, he said. O’Rielly hears 911 administrators’ argument that cutting funding hurts public safety: “We’re trying to figure out what leverage would change practices without harming public safety.”

Support

Rhode Island state Rep. Robert Lancia (R) supports federal legislation to end state 911 fee diversion and wants to testify next month at congressional hearings, he told us. Rhode Island diverted 60 percent ($8.4 million) of 911 fee revenue to its general fund in 2016, the FCC found. Lancia’s state bill to end the practice didn’t pass this year. He said he plans to bring 911 legislation back next session but worries it won’t fare any better in 2019 unless there’s a big shift in the legislature’s membership.

Even with national rules, Rhode Island must still act to increase 911 staff salaries and provide more training and stress-related leave to the call takers, Lancia said. He sees the issue as bipartisan and said his blood boiled when Rhode Island Gov. Gina Raimondo (D) asserted state 911 is adequately funded and claimed that O’Rielly’s effort was politically motivated.

It’s good to see the federal government act on this, with the federal attention increasing the issue’s profile and putting more pressure on state lawmakers, said New Jersey Association of Counties Executive Director John Donnadio, who sought to end the practice there. The FCC in February identified New Jersey as the biggest diverter, saying it used about 89 percent ($108.1 million) of the revenue for other purposes in 2016. Congress’ bill is a “double-edged sword,” however, because local governments will be hurt if New Jersey loses access to NG-911 grants, Donnadio said: “The state has to make a conscious effort to stop.”