Shirking 911 duties

For years, the Federal Communications Commission has promoted 911 as the standard telephone number for emergency police, fire and rescue services. In most areas, the heart of the 911 system is a computer-aided program that automatically establishes a caller's location and dispatches emergency personnel and equipment, even when a caller is unable to give directions.

Since 1996, the FCC has promoted the implementation of Enhanced 911 — or E911 — services to extend this system to wireless phones as well. In 1999, Congress enacted the Wireless Communications and Public Safety Act to further support this effort.

Implementation of E911 services nationwide requires an immense investment in new information technology resources at the local government level. In almost all instances, the cost is being met through the imposition of special fees on telephone end users. These fees are collected by the local telephone carriers and passed back to the government authorities to support the acquisition and maintenance of needed IT and related resources. However, an April decision by the General Accounting Office has made it considerably harder for some local governments to raise the needed money.

The decision involved Verizon Communications' right to collect 911 user fees for phones in the U.S. House of Representatives. In its decision, GAO noted that federal agencies are obliged to pay legitimate user fees charged by state and local governments for services rendered and conveniences provided. However, the U.S. government is constitutionally immune from state and local taxes.

The difference between a tax and a user fee, however, is not determined by the label given by the local government but by the facts at hand. In general, taxes are imposed on all or most citizens to raise money for the benefit of the entire community. In contrast, regulatory or user fees are imposed on just those individuals who are subject to the regulation, for the purpose of defraying expenses related to the regulation.

Thus, the more limited the purpose for collecting the fee, the more likely it is to be considered a true user charge. The more expansive the purpose, the more likely that it should be considered a tax.

With that in mind, it is apparent that 911 user fees are legitimate fees that should be paid by the federal government, the same as other telephone users who benefit from the provision of these emergency services by the local government. Inexplicably, however, GAO announced that the E911 fees were taxes that the U.S. government was not required to pay.

This decision will have severe consequences in Washington, D.C., where a large percentage of telephones are used by federal agencies. It will have a similar impact in smaller communities near military bases and other federal facilities where government users also account for many telephones.

The FCC should immediately act to help GAO understand the significant adverse impact of its decision and the need to take appropriate corrective action.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.

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