Establishes a monthly surcharge on mobile phone connections to fund implementation of wireless enhanced 911 by wireless providers and county public safety agencies. Creates wireless enhanced 911 board under DAGS to oversee collection and distribution of surcharge funds. Requires reports to the legislature, protection of proprietary provider information, and regular audits of the fund. (SD1)
TWENTY-SECOND LEGISLATURE, 2004
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO WIRELESS ENHANCED 911 SERVICE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that statewide enhanced 911 has proven to be a lifesaving service and that routing a 911 call to the appropriate public safety answering point with a display of the caller's identification and location should be available for all users of telecommunications services, regardless of the technology used to make and transmit the 911 call. The legislature also finds that it is in the best public interest to ensure that there is adequate ongoing funding to support enhanced 911 service.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
ENHANCED 911 SERVICES FOR MOBILE PHONES
§ -1 Definitions. As used in this chapter, unless the context requires otherwise:
"Automatic location identification" means a wireless enhanced 911 service capability that enables the automatic display of information indicating the approximate geographic location of the wireless telephone used to place a 911 call in accordance with the Federal Communications Commission order.
"Automatic number identification" means a wireless enhanced 911 service capability that enables the automatic display of the ten-digit wireless telephone number used to place a 911 call in accordance with the Federal Communications Commission order.
"Board" means the wireless enhanced 911 board established under this chapter.
"Commercial mobile radio service" means commercial mobile radio service under sections 3(27) and 332(d) of the Federal Telecommunications Act of 1996, 47 U.S.C. 151 et seq., and the Omnibus Budget Reconciliation Act of 1993, P.L. 103-66, August 10, 1993, 107 Stat. 312.
"Commercial mobile radio service connection" means each active wireless telephone number assigned to a commercial mobile radio service customer, including end-users of resellers, whose place of primary use is within the State.
"Federal Communications Commission order" means the original order issued in the Federal Communications Commission Docket No. 94-102 governing wireless enhanced 911 service and any other Federal Communication Commission orders related to the provision of wireless enhanced 911 service.
"Proprietary information" means customer lists and other related information (including the number of customers), technology descriptions, technical information, or trade secrets, and the actual or developmental costs of wireless enhanced 911 service that are developed, produced, or received internally by a provider or by a provider's employees, directors, officers, or agents.
"Provider" means a person or entity that is authorized by the Federal Communications Commission to provide facilities-based commercial mobile radio service within the State.
"Public safety agency" means a functional division of the State or county that provides or has authority to provide, or a private entity contracted by a state or county agency that provides, firefighting, law enforcement, ambulance, medical, or other emergency services.
"Public safety answering point" means the public safety agency that receives incoming 911 calls and dispatches appropriate public safety agencies or other providers to respond to those calls.
"Reseller" means a person or entity that purchases commercial mobile radio service from a provider for the purpose of reselling commercial mobile radio service to end-users.
"Wireless enhanced 911 commercial mobile radio service costs" means all capital, nonrecurring, and recurring costs directly related to the implementation and operation of phase I or phase II wireless enhanced 911 services pursuant to the Federal Communications Commission order.
"Wireless enhanced 911 fund" or "fund" means the statewide special fund established to ensure adequate cost recovery for the deployment of phase I and phase II wireless enhanced 911 service in Hawaii.
§ -2 Wireless enhanced 911 board. (a) There is created within the department of accounting and general services, for administrative purposes, a wireless enhanced 911 board consisting of eleven voting members; provided that the membership shall consist of:
(1) The director of health or the director's designee;
(2) Three representatives from the wireless providers, who shall be appointed by the governor as provided in section 26-34; provided that if two representatives have a parent company in common, they shall have one vote between them;
(3) One representative from a land line provider providing service as of February 1, 2004, or any successor entity to that land line provider;
(4) One representative each from the public safety answering points for Honolulu, Hawaii, Kauai, Maui, and Molokai, who shall be appointed by the governor, as provided in section 26-34, from a list of five names submitted by each respective public safety answering point, except as otherwise provided by law; and
(5) The consumer advocate or the consumer advocate's designee.
(b) Six voting members either in person or by proxy pursuant to subsection (g), shall constitute a quorum, whose affirmative vote shall be necessary for all actions by the board; provided that of the six voting members in attendance, three are representatives of the providers and three are representatives of public safety answering points, except as provided in section -8(c).
(c) The chair of the board shall be elected by the members of the board by simple majority and shall serve a term of one year.
(d) The board shall meet upon the call of the chair, but not less than quarterly after July 1, 2004.
(e) The members representing providers shall be appointed by the governor for terms of two years, except that terms of the two members initially appointed shall be for eighteen months.
(f) Each member shall hold office until the member's successor is appointed and qualified. Section 26-34 shall apply only in so far as it relates to succession, vacancies, and suspension of board members.
(g) A member may vote by proxy submitted in writing to the board.
(h) The members shall serve without compensation. Members shall be entitled to reimbursements from the wireless enhanced 911 fund for reasonable traveling expenses incurred in connection with the performance of the board duties.
(i) The board or its chair, with the approval of the board, may retain independent, third party accounting firms, consultants, or other third party for purposes of: creating reports, payments into the fund, processing checks, and making distributions from the fund as directed by the board and as allowed by this chapter; and other administrative duties necessary to administer the fund or oversee operations of the board, including technical advisory support.
(j) The board shall develop reasonable procedures to ensure that all providers receive adequate notice of board meetings and information concerning board decisions.
§ -3 Wireless enhanced 911 fund. (a) There is established outside the state treasury a special fund to be known as the wireless enhanced 911 fund to be administered by the wireless enhanced 911 board within the department of accounting and general services for the purpose of ensuring adequate cost recovery for the deployment of wireless enhanced 911 service in Hawaii and to be used solely for that purpose.
(b) The fund shall consist of the amounts collected under section -4(e).
(c) Any expenses of administering the fund shall be paid from moneys in the fund. The department of accounting and general services shall be entitled to five per cent of all amounts collected under subsection (b), to be paid to the department as those amounts are received, for administration expenses, including hiring personnel.
(d) The board shall place the funds in an interest-bearing account at any federally insured financial institution.
(e) The moneys paid into the fund are not general fund revenues of the State and shall be kept in a fund separate and apart from the general fund of the State to ensure adequate cost recovery to public safety answering points and providers for the deployment of phase I and phase II wireless enhanced 911 service in the State as specified in this section.
§ -4 Surcharge. (a) A monthly enhanced wireless 911 surcharge is established and, subject to this chapter, imposed upon each commercial mobile radio service connection.
(b) The effective date of the surcharge shall be July 1, 2004. The rate of the surcharge shall be set at cents per month for each commercial mobile radio service connection. This surcharge shall have uniform application and shall be imposed on each commercial mobile radio service connection operating within the State except:
(1) Connections billed to federal, state, and county government entities; and
(2) Prepaid connections.
(c) All providers and resellers shall bill to and collect from each of their customers a monthly surcharge at the rate established for each commercial mobile radio service connection. The provider or reseller may list the surcharge as a separate line item on each bill. If a provider or reseller receives a partial payment for a monthly bill from a commercial mobile radio service customer, the provider or reseller shall apply the payment against the amount the customer owes the provider or reseller, before applying the partial payment against the surcharge.
(d) A provider that: is collecting the surcharge and remitting appropriate portions of the surcharge to the fund pursuant to this chapter, and has been requested by a public safety answering point to provide phase I or phase II wireless enhanced 911 service in a particular county or counties, may recover wireless enhanced 911 commercial mobile radio service costs as provided in this chapter.
(e) Each provider or reseller may retain two per cent of the amount of surcharges collected to offset administrative expenses associated with billing and collecting the surcharge.
(f) A provider or reseller shall remit to the wireless enhanced 911 fund, within sixty days after the end of the calendar month in which the surcharge is collected, an amount that represents the surcharges collected that are net of the amounts retained for administrative expenses incurred by the provider or reseller, as provided in subsection (e).
(g) The surcharges collected by the provider or reseller pursuant to this section are not subject to any tax, fee, or assessment, nor are they considered revenue of the provider or reseller.
(h) Each customer who is subject to this chapter shall be liable to the State for the surcharge until it has been paid to the provider. Providers shall have no liability to remit surcharges that have not been paid by customers. A provider or reseller shall have no obligation to take any legal action to enforce the collection of the surcharge for which any customer is billed. However, the board may initiate a collection action against the customer. If the board prevails in such a collection action, reasonable attorney's fees and costs shall be awarded.
(i) At any time the members deem it necessary and appropriate, the board may meet to make recommendations to the legislature as to whether the surcharge and fund should be discontinued, continued as is, or be amended.
(j) When considering whether to discontinue, continue as is, or amend the fund or surcharge, the board's recommendations shall be based on the latest information available, concerning costs associated with providing wireless enhanced 911 service in accordance with the Federal Communications Commission order.
§ -5 Recovery from the fund. (a) After January 1, 2005, any public safety answering point shall be eligible to seek reimbursement from the fund solely to pay for the reasonable costs to lease, purchase, or maintain all necessary equipment, including computer hardware, software, and database provisioning, required by the public safety answering point to provide technical functionality for the wireless enhanced 911 service pursuant to the Federal Communications Commission order. All other expenses necessary to operate the public safety answering point, including but not limited to those expenses related to overhead, staffing, and other day-to-day operational expenses, shall continue to be paid through the general funding of the respective counties.
(b) After January 1, 2005, each provider may request reimbursement from the fund of wireless enhanced 911 commercial mobile radio service costs incurred; provided that such costs are recoverable under section -4(d) and have not already been reimbursed to the provider from the fund. In no event shall a provider be reimbursed for any amount above its actual wireless enhanced 911 commercial mobile radio service costs allowed to be recovered under section -4(d).
(c) After expenses for the board are paid, the public safety answering points shall have priority for up to per cent of the fund. The remaining per cent shall be available for provider cost recovery. If there are competing requests for reimbursement between public safety answering points, and between providers, when there are insufficient moneys in the fund to satisfy the requests, the board shall disburse moneys to the requesting public safety answering points and providers through a prorated disbursement, based on the amount of the wireless enhanced 911 commercial mobile radio service costs being sought to be reimbursed.
§ -6 Report to the legislature. The wireless enhanced 911 board shall submit an annual report to the legislature, which shall include:
(1) The total aggregate surcharge collected by the State in the last fiscal year;
(2) The amount of disbursement from the fund;
(3) The recipient of each disbursement and describing the project for which the money was disbursed;
(4) The conditions, if any, placed by the board on disbursements from the fund;
(5) The planned expenditures from the fund in the next fiscal year;
(6) The amount of any unexpended funds carried forward for the next fiscal year;
(7) A cost study to guide the legislature towards necessary adjustments to the fund and the monthly surcharge; and
(8) A progress report of local government implementation of wireless and land-based E911 services, including implementation of phase I and phase II wireless 911 services.
§ -7 Audit. (a) During any period in which a wireless enhanced 911 surcharge is imposed upon customers, the board may request an audited report prepared by an independent certified public accountant that demonstrates that the request for cost recovery from public safety answering points and providers recovers only costs and expenses directly related to the provision of phase I or phase II wireless enhanced 911 service as authorized by this chapter. The cost of the audited reports shall be considered part of the expenses of the board. The board shall prevent public disclosure of proprietary information contained in the audited report, unless required by court order or appropriate administrative agency decision.
(b) The board shall select an independent third party to audit the fund every two years to determine whether the fund is being managed in accordance with this chapter. The board may utilize the audit to determine whether the amount of the surcharge assessed on each commercial mobile radio service connection is required to be adjusted. The costs of the audit shall be an administrative cost of the board recoverable from the fund.
(c) This section shall not apply to a land line company.
§ -8 Proprietary information. (a) All proprietary information submitted to the board, any third party used by the board in connection with its duties, or any public safety answering point in deploying wireless 911 service shall be retained in confidence. Proprietary information submitted pursuant to this chapter shall not be released to any person, other than to the submitting provider or reseller, the board, or any independent, third-party accounting firm retained by the board, without the express permission of the submitting provider or reseller. General information collected by the board shall be released or published only in aggregate amounts that do not identify or allow identification of numbers of subscribers or revenues attributable to an individual provider.
(b) The board, any third parties it may retain, and any public safety answering point shall take appropriate measures to maintain the confidentiality of the proprietary information that may be submitted by a provider. Recognizing that providers require their proprietary information to be held in confidence, the board shall adopt reasonable procedures to prevent disclosure or access of the proprietary information to the public and competitors, including members of the board representing other providers. Members of the board may not disclose the information to any third parties, including their employers, without the written consent of the provider whose proprietary information is to be disclosed.
(c) When at least two-thirds of the members of the board determine that a board action can be conducted by a committee consisting of all board members except the three provider representatives, the committee shall have the power to act for the board on the specific matters defined by the board, such that proprietary information shall not be disclosed to the provider representatives.
§ -9 Limitation of liability. (a) Notwithstanding any law to the contrary, in no event shall any provider, or its employees, directors, officers, assigns, or agents, except in cases of gross negligence or wanton and wilful misconduct, be liable for any civil damages or criminal liability resulting from death or injury to a person or from damage to property incurred by any person in connection with any act or omission in developing, designing, adopting, establishing, installing, participating in, implementing, maintaining, or providing access to phase I or phase II wireless enhanced 911 service in compliance with the wireless enhanced 911 requirements established by the Federal Communications Commission, or any other wireless service intended to help persons obtain emergency assistance. In addition, no provider or its employees, directors, officers, assigns, or agents shall be liable for civil damages or criminal liability in connection with the release of customer information to any governmental entity, including any public safety answering point, as required under this chapter.
(b) In no event shall any public safety answering point, or its employees, assigns, or agents, or emergency response personnel, except in cases of gross negligence or wanton and willful misconduct, be liable for any civil damages or criminal liability resulting from death or injury to the person or from damage to property incurred by any person in connection with any act or omission in the development, installation, maintenance, operation, or provision of phase I or phase II wireless enhanced 911 service.
§ -10 Database or location information. (a) Any commercial mobile radio service location information obtained by any public safety answering point or public safety agency or its personnel for public safety purposes is not a government record open to disclosure under chapter 92F.
(b) A person may not disclose or use, for any purpose other than the wireless enhanced 911 calling system, information contained in the database of the provider's network portion of the wireless enhanced 911 calling system established pursuant to this chapter without the prior written consent of the provider.
§ -11 Dispute resolution. (a) Any provider, reseller, or public safety answering point aggrieved by a decision of the board shall have the right to petition the board for reconsideration within ten days following the rendering of the board's decision. As part of its petition for reconsideration, such aggrieved party may present any reasonable evidence or information for the board to consider. The board shall render its decision on the reconsideration petition as soon as reasonably possible, but no later than thirty days after the reconsideration request is made.
(b) An aggrieved party, following the completion of the reconsideration petition process, upon agreement of the other party, may have the dispute resolved through final and binding arbitration by a single arbitrator in accordance with the Wireless Industry Arbitration Rules of the American Arbitration Association. The costs of the arbitration, including the fees and expenses of the arbitrator, shall be borne by the non-prevailing party of any arbitration proceeding. The arbitrator's decision shall be final and binding and may be confirmed and enforced in any court of competent jurisdiction.
(c) Nothing in this section shall preclude any provider, reseller, or public safety answering point from pursuing any existing right or remedy to which it is entitled in any court having jurisdiction thereof.
§ -12 Service contracts. A provider shall not be required to provide wireless enhanced 911 service until the provider and the public safety answering point providing wireless enhanced 911 service in the county or counties in which the provider is licensed to provide commercial mobile radio service has entered into a written agreement setting forth the basic terms of service to be provided."
SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 4. This Act shall take effect on January 1, 2020.