Enhanced 911 Service

Establishes enhanced 911 service for mobile phones.  (HB661 HD2)

HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that the department of
 2 health, in addition to the functions and duties assigned to it
 3 under chapter 321, Hawaii Revised Statutes, is required to assist
 4 each county in the development of an emergency 911 telephone
 5 system.
 6      The legislature further finds that the mobile nature of
 7 wireless communications service creates complexities in providing
 8 911 emergency services.  The Federal Communications Commission
 9 (FCC), in FCC Docket No. 94-102, adopted regulations that require
10 commercial mobile radio service providers to provide wireless
11 enhanced 911 service, if requested by the local government or a
12 public safety agency responsible for the emergency 911 functions,
13 within certain time parameters.
14      The FCC requires the implementation of a cost recovery
15 mechanism to allow commercial mobile radio service providers to
16 recover their costs for designing, purchasing, installing,
17 testing, and operating enhanced facilities, systems, and services
18 necessary to comply with emergency 911 requirements.  It is in
19 the public interest to establish a cost recovery mechanism in

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                                     H.B. NO.           H.D. 2

 1 accordance with the FCC Order so that the citizens of Hawaii who
 2 use commercial mobile radio service will realize the benefits of
 3 wireless enhanced 911 service.
 4      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 5 a new chapter to be appropriately designated and to read as
 6 follows:
 7                             "CHAPTER
 9         -1 Definitions.  As used in this chapter, unless the
10 context requires otherwise:
11      "Automatic location identification" means a wireless
12 enhanced 911 service capability that enables the automatic
13 display of information defining the approximate geographic
14 location (within one hundred twenty-five meters two-thirds of the
15 time) of the wireless telephone used to place a 911 call in
16 accordance with the FCC Order.
17      "Automatic number identification" means a wireless enhanced
18 911 service capability that enables the automatic display of the
19 ten-digit wireless telephone number used to place a 911 call in
20 accordance with the FCC Order.
21      "Board" means the wireless enhanced 911 advisory board
22 established under this chapter.

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                                     H.B. NO.           H.D. 2

 1      "Commercial mobile radio service" means commercial mobile
 2 radio service under sections 3(27) and 332(d) of the Federal
 3 Telecommunications Act of 1996, 47 U.S.C. 151 et seq., and the
 4 Omnibus Budget Reconciliation Act of 1993, Pub.L. 103-66,
 5 August 10, 1993, 107 Stat. 312.  It includes the term "wireless"
 6 and service provided by any wireless, real time two-way voice
 7 communication device, including radio-telephone communications
 8 used in cellular telephone service, personal communications
 9 service, or the functional or competitive equivalent of a radio-
10 telephone communications line used in cellular telephone service,
11 a personal communications service, or a network radio access line
12 which has access to enhanced 911 service.  The term does not
13 include services that do not provide access to 911 service, a
14 communication channel suitable only for data transmission, a
15 wireless roaming service, or other nonlocal radio access line
16 service, or a private telecommunications service.
17      "Commercial mobile radio service connection" means each
18 wireless telephone number assigned to a commercial mobile radio
19 service customer, including end-users of resellers, with a
20 billing address in the State of Hawaii.
21      "Federal Communications Commission order" means the original
22 order issued in the Federal Communications Commission Docket No.
23 94-102 governing wireless enhanced 911 service and any other

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                                     H.B. NO.           H.D. 2

 1 Federal Communication Commission orders related to the provision
 2 of wireless enhanced 911 service.
 3      "Phase I wireless enhanced 911 service" or "phase I wireless
 4 E911" means an emergency telephone system, as defined by the FCC,
 5 in which wireless 911 calls and information on the caller's
 6 automatic number identification and the cell site in which the
 7 call originates are routed to an appropriate public safety
 8 answering point.
 9      "Phase II wireless enhanced 911 service" means an emergency
10 telephone system, as defined by the FCC, in which wireless 911
11 calls and information on the caller's automatic number
12 identification and automatic location identification are routed
13 to an appropriate public safety answering point.
14      "Proprietary information" means customer lists and other
15 related information (including the number of customers),
16 technology descriptions, technical information, or trade secrets,
17 and the actual or developmental costs of wireless enhanced 911
18 service that are developed, produced, or received internally by a
19 provider or by a provider's employees, directors, officers, or
20 agents.
21      "Provider" means a person or entity that is authorized by
22 the Federal Communications Commission to provide facilities-based
23 commercial mobile radio service within the State.

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                                     H.B. NO.           H.D. 2

 1      "Public safety agency" means a functional division of the
 2 State or county that provides or has authority to provide, or a
 3 private entity contracted by a state or county agency that
 4 provides firefighting, law enforcement, ambulance, medical, or
 5 other emergency services.
 6      "Public safety answering point" means the public safety
 7 agency that receives incoming 911 calls and dispatches
 8 appropriate public safety agencies or other providers to respond
 9 to such calls.
10      "Reseller" means a person or entity that purchases
11 commercial mobile radio service from a provider for the purpose
12 of reselling commercial mobile radio service to end-users.
13      "Wireless enhanced 911 fund" or "fund" means the statewide
14 special fund established to ensure adequate cost recovery for the
15 deployment of Phase I and Phase II wireless enhanced 911 service
16 in Hawaii.  The moneys paid into the fund are not general fund
17 revenues of the State and shall be kept in a fund separate and
18 apart from the general fund of the State to ensure adequate cost
19 recovery to providers and public safety answering points for the
20 deployment of Phase I and Phase II wireless enhanced 911 service
21 in Hawaii as specified in this section.
22         -2 Wireless enhanced 911 advisory board.(a)  There is
23 created within the department of health for administration, a

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                                     H.B. NO.           H.D. 2

 1 wireless enhanced 911 advisory board consisting of nine members
 2 as follows:
 3      (1)  The director of health or the director's designee, who
 4           shall serve as the chair;
 5      (2)  Representatives of four commercial mobile radio service
 6           providers operating within the State.  These members
 7           shall be appointed by the governor in accordance with
 8           section 26-34.  At least two members shall be
 9           representatives from the providers operating in the 800
10           mhz frequency and at least one member shall be a
11           representative from the providers operating in the 1900
12           mhz frequency; and
13      (3)  Four representatives shall be appointed by the public
14           safety answering point.  These representatives shall
15           serve as the four members who separately represent the
16           public safety answering point for each of the
17           respective counties.
18      (b)  A quorum of the board shall consist of five members;
19 provided, however, that at least two members each representing
20 the providers and public safety answering point shall be in
21 attendance.  The board shall meet upon the call of the chair, but
22 in no event less than once per calendar quarter.

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                                     H.B. NO.           H.D. 2

 1      (c)  Except as set forth below, each provider member shall
 2 serve a staggered term of two years and may be appointed to no
 3 more than two successive terms.  For purposes of establishing
 4 staggered terms, two of the initial appointed provider members
 5 shall serve an initial term of eighteen months, with the
 6 remaining two initial appointed provider members serving an
 7 initial term of two years.  Vacancies may be filled in the same
 8 manner as the original appointment.
 9      (d)  A member may vote by proxy submitted in writing to the
10 board.
11      (e)  The board shall serve without compensation, but members
12 of the board shall be entitled to reimbursements from the
13 wireless enhanced 911 fund for reasonable traveling expenses
14 incurred in connection with the performance of the member's
15 duties.
16      (f)  The board may retain an independent, third party
17 accounting firm or other third party for purposes of verifying
18 reports, payments into the fund, processing checks, and making
19 distributions from the fund as directed by the board and as
20 allowed by this chapter, and other administrative duties
21 necessary to administer the fund.
22      (g)  The board shall develop reasonable procedures to ensure
23 that all providers receive adequate notice of board meetings and
24 information concerning board decisions.

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                                     H.B. NO.           H.D. 2

 1         -3 Wireless enhanced 911 fund.(a)  There is
 2 established within the department of health the wireless enhanced
 3 911 fund for the purpose of ensuring adequate cost recovery for
 4 the deployment of wireless enhanced 911 service in Hawaii and
 5 shall be used solely for that purpose.  The fund shall be
 6 administered by the board.
 7      (b)  Any expenses of administering the fund must be paid
 8 from moneys in the fund.
 9      (c)  The fund consists of those sums remitted by:
10      (1)  Resellers, that represent the balance of the surcharges
11           collected following deduction of administrative
12           expenses; and
13      (2)  Providers, that represent the balance of the surcharges
14           collected following deduction of administrative
15           expenses and reimbursement of capital costs and
16           associated operating expenses directly related to
17           providing wireless enhanced 911 service.
18      (d)  The board shall place the funds in an interest-bearing
19 account at any federally insured financial institution.
20         -4 Surcharge.  (a)  The board shall establish and levy
21 a monthly wireless enhanced 911 surcharge on each connection;
22 provided that a public safety answering point has requested
23 wireless enhanced 911 service from a provider in accordance with

Page 9                                                     661
                                     H.B. NO.           H.D. 2

 1 the Federal Communications Commission order.  The rate of such
 2 surcharge shall initially be set at 30 cents per month for each
 3 commercial mobile radio service connection with a billing address
 4 in the State of Hawaii.  The surcharge shall not exceed 50 cents
 5 per month.  This surcharge shall have uniform application and
 6 shall be imposed on each provider operating within the State.
 7 The surcharge may be increased or decreased in accordance with
 8 subsection (g).
 9      (b)  All providers and resellers, within ninety days of the
10 effective date of the initial surcharge or the date the board
11 approves any adjustment in the amount of the surcharge, as the
12 case may be, shall bill to and collect from each of their
13 customers a monthly surcharge at the rate established by the
14 board for each commercial mobile radio service connection.  The
15 provider or reseller may list the surcharge as a separate line
16 item on each bill.  If a provider or reseller receives a partial
17 payment for a monthly bill from a commercial mobile radio service
18 customer, the provider or reseller shall apply the payment
19 against the amount the customer owes the provider or reseller
20 before applying the partial payment against the surcharge.
21      (c)  A provider which has been requested by a public safety
22 answering point to provide phase I or phase II wireless enhanced
23 911 service in a particular county or counties, may recover the

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                                     H.B. NO.           H.D. 2

 1 actual capital costs and associated operating expenses directly
 2 related to providing such service.  For purposes of recovering
 3 such capital costs and expenses, the provider may retain up to
 4 eighty-four per cent of the surcharges actually collected by the
 5 provider from its customers in any given month until such time
 6 that full recovery has been made.
 7      (d)  Each provider or reseller may further retain two per
 8 cent of the amount of surcharges collected to offset
 9 administrative expenses associated with billing and collecting
10 the surcharge.
11      (e)  A provider or reseller shall remit to the wireless
12 enhanced 911 fund within sixty days after the end of the calendar
13 month in which the surcharge is collected, an amount which
14 represents the surcharges collected that are net of the amounts
15 retained for administrative expenses incurred by the provider or
16 reseller, and a reimbursement of a provider's capital costs and
17 associated operating expenses directly related to providing
18 wireless enhanced 911 service.
19      (f)  The surcharges collected by the provider or reseller
20 pursuant to this section are not subject to any tax, fee, or
21 assessment, nor are they considered revenue of the provider or
22 reseller.

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                                     H.B. NO.           H.D. 2

 1      (g)  Except for the initial surcharge which shall remain in
 2 effect for at least twelve months, the board may, upon the
 3 affirmative vote by at least two-thirds of the total members of
 4 the board, adjust the amount of surcharge from time to time upon
 5 ninety days' written notice to providers and public safety
 6 answering points to ensure full recovery for providers and for
 7 public safety answering points, over a reasonable period of time,
 8 of the costs with developing and maintaining a wireless enhanced
 9 911 service.
10      (h)  A provider or reseller shall have no obligation to take
11 any legal action to enforce the collection of the surcharge for
12 which any customer is billed.  However, the board may initiate a
13 collection action and reasonable costs and attorneys' fees
14 associated with that collection action may be awarded.
15         -5 Recovery from the fund.(a)  A provider whose
16 wireless enhanced 911 expenses exceed the amount of the wireless
17 enhanced 911 surcharges collected from its customers may request
18 cost recovery assistance from the wireless enhanced 911 fund.  No
19 provider seeking cost recovery from the wireless enhanced 911
20 fund may receive in excess of one hundred twenty-five per cent of
21 the total surcharges collected from its customers from the
22 inception of the fund.  The limit of one hundred twenty-five per
23 cent shall include all surcharges collected from the providers'

Page 12                                                    661
                                     H.B. NO.           H.D. 2

 1 customers.  Notwithstanding the foregoing, the board may, upon
 2 good cause demonstrated by a provider of the reasonableness and
 3 necessity of the expenditures and other criteria established by
 4 the board, allow a provider to obtain cost recovery assistance
 5 from the wireless enhanced 911 fund in excess of the one hundred
 6 twenty-five per cent limitation.
 7      (b)  Any public safety answering point that has requested a
 8 provider to provide and implement phase I or phase II wireless
 9 enhanced 911 service in a particular county or counties is
10 eligible to seek reimbursement from the fund solely to pay for
11 the reasonable cost to lease, purchase, or maintain all necessary
12 equipment, including computer hardware, software and database
13 provisioning, required by the public safety answering point to
14 provide technical functionality for the wireless enhanced 911
15 service pursuant to the Federal Communications Commission order.
16 The total amount of reimbursement which the eligible public
17 safety answering points may obtain from the fund shall not exceed
18 twenty-five per cent of the total moneys remitted into the fund.
19 All other expenses necessary to operate the public safety
20 answering point center including but not limited to those
21 expenses related to overhead, staffing, and other day-to-day
22 operational expenses, shall continue to be paid through the
23 general funding of the respective counties.

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                                     H.B. NO.           H.D. 2

 1      (c)  To the extent there are insufficient moneys in the fund
 2 to satisfy any or all requests for reimbursement, the board shall
 3 have the discretion to disburse moneys in amounts less than
 4 requested or defer such requests until additional amounts are
 5 deposited into the fund.  In considering competing requests
 6 between providers and public safety answering points, the board
 7 shall accord priority to reimbursement requests from providers
 8 over those requests made by public safety answering points.
 9      (d)  If there are competing requests for reimbursement
10 between providers when there are insufficient moneys in the fund
11 to satisfy such requests, the board shall disburse moneys to the
12 requesting providers in a manner which is fair and reasonable
13 under the circumstances.  In that situation, the board may
14 consider, among other things, a prorated disbursement based on
15 the amount of contributions remitted into the fund by the
16 affected providers in relation to the amount requested.
17         -6 Audits.(a)  During any period in which a wireless
18 enhanced 911 surcharge is imposed upon customers, the provider,
19 before April 2 of each following year, shall submit to the board
20 an audited report prepared by an independent certified public
21 accountant which demonstrates that the surcharge imposed recovers
22 only legitimate costs and expenses directly related to the
23 provision of phase I or phase II wireless enhanced 911 service.

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                                     H.B. NO.           H.D. 2

 1 The cost of such audited report shall be considered part of the
 2 expenses which may be recovered by the provider as part of the
 3 surcharge.  The board shall prevent public disclosure of
 4 proprietary information contained in the audited report unless
 5 required by court order or appropriate administrative agency
 6 decision.
 7      (b)  During any period in which a reseller imposes a
 8 wireless enhanced 911 surcharge upon its customers, the reseller
 9 shall submit, concurrently with the remittal of the net
10 surcharges billed to and collected from the reseller's customers,
11 a report which provides sufficient detail to the board to verify
12 the accuracy of the total surcharges payable and collected by the
13 reseller.  The board, in its discretion, may order an audit of
14 the reseller's records or require the reseller to submit an
15 audited report which reconciles the total surcharges billed to
16 and collected from a reseller's customers and remitted to the
17 board.
18      (c)  The board shall select a third party to audit the fund
19 every two years to determine whether the fund is being managed in
20 accordance with this chapter.  The board may utilize the audit to
21 determine whether the amount of the surcharge assessed on each
22 commercial mobile radio service connection is required to be
23 adjusted.  The costs of the audit shall be an administrative cost
24 of the board recoverable from the fund.

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                                     H.B. NO.           H.D. 2

 1         -7 Proprietary information.(a)  All proprietary
 2 information submitted to the board shall be retained in
 3 confidence.  Proprietary information submitted pursuant to this
 4 chapter shall not be released to any person other than to the
 5 submitting provider, the board, or any independent, third-party
 6 accounting firm retained by the board, without the express
 7 permission of the submitting provider.  General information
 8 collected by the board shall be released or published only in
 9 aggregate amounts that do not identify or allow identification of
10 numbers of subscribers or revenues attributable to an individual
11 provider.
12      (b)  The board and any third parties it may retain must take
13 appropriate measures to maintain the confidentiality of the
14 proprietary information which may be submitted by a provider.
15 Recognizing that providers require their proprietary information
16 to be held in confidence, the board shall adopt reasonable
17 procedures to prevent disclosure or access of the proprietary
18 information to the public and competitors, including members of
19 the board representing the providers.  Members of the board may
20 not disclose the information to any third parties, including
21 their employers, without the written consent of the provider
22 whose proprietary information is to be disclosed.

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                                     H.B. NO.           H.D. 2

 1         -8  Limitation of liability.(a)  Notwithstanding any
 2 law to the contrary, in no event shall any provider, or its
 3 employees, directors, officers, assigns, or agents, except in
 4 cases of gross negligence or wanton and wilful misconduct, be
 5 liable for any civil damages or criminal liability resulting from
 6 death or injury to a person or from damage to property incurred
 7 by any person in connection with any act or omission in
 8 developing, designing, adopting, establishing, installing,
 9 participating in, implementing, maintaining, or providing access
10 to phase I or phase II wireless enhanced 911 service in
11 compliance with the wireless enhanced 911 requirements
12 established by the Federal Communications Commission, or any
13 other wireless service intended to help persons obtain emergency
14 assistance.  In addition, no provider or its employees,
15 directors, officers, assigns, or agents shall be liable for civil
16 damages or criminal liability in connection with the release of
17 customer information to any governmental entity, including any
18 public safety answering point, as required under this chapter.
19      (b)  In no event shall any public safety answering point, or
20 its employees, assigns, or agents, or emergency response
21 personnel, except in cases of gross negligence, wanton and wilful
22 misconduct, or bad faith, be liable for any civil damages or
23 criminal liability resulting from death or injury to the person

Page 17                                                    661
                                     H.B. NO.           H.D. 2

 1 or from damage to property incurred by any person in connection
 2 with any act or omission in the development, installation,
 3 maintenance, operation, or provision of phase I or phase II
 4 wireless enhanced 911 service.
 5         -9 Database or location information.(a)  Any
 6 commercial mobile radio service location information obtained by
 7 any public safety answering point or public service agency or its
 8 personnel for public safety purposes is not a government record
 9 open to disclosure under chapter 92F.
10      (b)  A person may not disclose or use, for any purpose other
11 than the wireless enhanced 911 calling system, information
12 contained in the database of the provider's network portion of
13 the wireless enhanced 911 calling system established pursuant to
14 this section without the prior written consent of the provider.
15         -10  Dispute resolution.(a)  Any provider, reseller,
16 or public safety answering point aggrieved by a decision of the
17 board shall have the right to petition the board for
18 reconsideration within ten days following the rendering of the
19 board's decision.  As part of its petition for reconsideration,
20 such aggrieved party may present any reasonable evidence or
21 information for the board to consider.  The board shall render
22 its decision on the reconsideration petition as soon as
23 reasonably possible, but no later than thirty days after the
24 reconsideration request is made.

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                                     H.B. NO.           H.D. 2

 1      (b)  An aggrieved party, following the completion of the
 2 reconsideration petition process, upon agreement of the other
 3 party, may have the dispute resolved through mandatory
 4 arbitration by a single arbitrator in accordance with the
 5 Wireless Industry Arbitration Rules of the American Arbitration
 6 Association.  The costs of the arbitration, including the fees
 7 and expenses of the arbitrator, shall be borne by the non-
 8 prevailing party of any arbitration proceeding.  The arbitrator's
 9 decision shall be final and binding and may be confirmed and
10 enforced in any court of competent jurisdiction.
11      (c)  Nothing in this section shall preclude any provider,
12 reseller, or public safety answering point from pursuing any
13 existing right or remedy to which it is entitled in any court
14 having jurisdiction thereof.
15         -11  Miscellaneous.  A provider shall not be required to
16 provide wireless E911 service unless and until the provider and
17 the public safety answering point providing wireless E911 service
18 in the county or counties in which the provider is licensed to
19 provide commercial mobile radio service has entered into a
20 written agreement setting forth the basic terms of service to be
21 provided."

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                                     H.B. NO.           H.D. 2

 1      SECTION 3.  Statutory material to be repealed is bracketed.
 2 New statutory material is underscored.
 3      SECTION 4.  This Act shall take effect upon its approval.