SB2769.DOC

SECTION 1. The legislature finds that Public Law 110-283, the New and Emerging Technologies 911 Improvement Act of 2008, became law on July 23, 2008. The purpose of the Act is to facilitate the rapid deployment of internet protocol-enabled 911 and enhanced 911 services, encourage the nation's transition to a national internet protocol-enabled emergency network, and improve 911 and E-911 access to those with disabilities. Hawaii is one of only six states that do not have a single entity that coordinates all enhanced 911 services and has instead only the wireless enhanced 911 board that administers cost recovery for provision of wireless enhanced 911 services in the State.

The legislature also finds that technologies involved in providing enhanced 911 services have converged to a point that systems required to provide such service are blended and are evolving to accept other forms of communications such as text, video, and telematics data. The current surcharges for wireline enhanced 911 service, administered by the public utilities commission, and wireless enhanced 911 service do not account for prepaid wireless connections or for future technologies such as broadband service or internet protocol-enabled services. In addition, the wireless enhanced 911 board does not include members of other communications service providers that may begin to offer enhanced 911 service.

The purpose of this Act is to promote and protect the safety of residents and visitors alike by establishing a single state entity to administer enhanced 911 services for the State.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

ENHANCED 911 SERVICES

§ -1 Definitions. As used in this chapter, unless the context requires otherwise:

"911" means the digits, address, internet protocol address, or other information used to access or initiate a call to a public safety answering point.

"911 service" means a public communications service that provides service users with the ability to reach a public safety answering point by accessing a "9-1-1 system".

"911 system" means an emergency telephone system that includes the following features:

(1) Enables the user of a voice or data communications service connection to reach a public safety answering point by dialing 911;

(2) The voice communications service may be telephone service, computer service, wireless service, or other service that facilitates the placing of calls by persons in need of emergency services to a public safety answering point;

(3) The data communications service may be text message or some other service that transmits data exclusively; and

(4) Provides enhanced 911 service.

"Board" means the enhanced 911 board established under this chapter.

"Call" means any communication, message, signal, or transmission.

"Communication service" means a service capable of accessing, connecting with, or interfacing with a 911 system, by dialing, initializing, or otherwise activating the 911 system by means of a local telephone device, cellular telephone device, wireless communication device, interconnected voice over the internet device, or any other means.

"Communications service connection" means each telephone number assigned to a residential or commercial subscriber by a communications service provider, without regard to technology deployed.

"Communications service provider" means an entity that provides communications service to a subscriber.

"Enhanced 911 fund" or "fund" means the statewide special fund established to ensure adequate cost recovery for the deployment of enhanced 911 services in this State, as provided for in Public Law 110-283.

"Enhanced 911 service costs" means all nonrecurring and recurring capital costs directly related or ancillary to the implementation, operation, and administration of enhanced 911 services.

"Prepaid connection" means the sale of a telecommunications service that provides the right to utilize service and other non-telecommunications services, including the download of digital products delivered electronically, content, and ancillary services that must be paid for in advance and that is sold in predetermined units of dollars of which the number declines with use in a known amount.

"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 enhanced 911 service that are developed, produced, or received internally by a communications service provider or by a provider's employees, directors, officers, or agents.

"Public safety agency" means a functional division of the State or a 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 to respond to those calls. "Reseller" means a person or entity that purchases communications services from a communications service provider for the purpose of reselling communications service to end-users.

"Voice-over-internet-protocol provider" means an entity that provides interconnected voice-over-internet-protocol service.

§ -2 Enhanced 911 board. (a) There is created within the department of public safety, for administrative purposes, an enhanced 911 board consisting of fourteen voting members; provided that the membership shall consist of:

(1) The director of public safety or designee;

(2) The chairperson of the public utilities commission or designee;

(3) The consumer advocate or designee;

(4) The comptroller or designee;

(5) One representative each from Oahu, Hawaii, Kauai, Maui, and Molokai, who is employed by or manages the respective primary public safety answering point and who shall be appointed by the governor without regard to section 26-34;

(6) One representative from the predominant voice-over-internet-protocol communications service provider, who shall be appointed by the governor as provided in section 26-34;

(7) Three representatives from the wireless communications service providers, one of whom shall represent network based carriers and two of whom shall represent global positioning system-based carriers, all of whom shall be appointed by the governor for terms of two years but otherwise as provided in section 26-34; and

(8) One representative of the incumbent local exchange carrier company in the State, who shall be appointed by the governor, as provided in section 26-34.

(b) A simple majority of the voting members of the board shall constitute a quorum, whose affirmative vote shall be necessary for all actions by the board.

(d) The board shall meet upon the call of the chairperson or a majority of the board but not less than quarterly.

(e) Each voting member shall hold office until the member's successor is appointed and qualified. Section 26-34 shall apply only insofar as it relates to succession, vacancies, and suspension of board members, and as provided in subsection (a).

(f) Members of the board shall serve without compensation provided that members shall be entitled to reimbursements from the enhanced 911 fund for reasonable expenses, including travel expenses, neccessarily incurred in connection with the performance of board duties.

(g) The board or its chairperson, with the approval of the board, may retain independent, third-party accounting firms, consultants, or other third parties to:

(1) Create reports, conduct audits or assessments, make payments into the fund, process checks, and make distributions from the fund, as directed by the board and as allowed by this chapter; and

(2) Perform administrative duties necessary to administer the fund or oversee operations of the board, including providing technical advisory support.

(h) The board shall develop reasonable procedures to ensure that all members receive adequate notice of board meetings and information concerning board decisions.

(i) The board shall adopt rules pursuant to chapter 91 necessary for the purposes of this chapter.

§ -3 Enhanced 911 fund. There is established outside the state treasury a special fund, to be known as the enhanced 911 fund, to be administered by the board. The fund shall consist of amounts collected under section -4. Moneys paid into the fund are not general fund revenues of the State. The board shall place the funds in an interest-bearing account at any federally insured financial institution, separate and apart from the general fund of the State. Moneys in the fund shall be expended by the board for the exclusive purposes of ensuring adequate funding for the deployment and sustainment of enhanced 911 services and for expenses of administering the fund.

§ -4 Surcharge. (a) A monthly enhanced 911 surcharge, subject to this chapter, shall be imposed upon each communications service connection.

(b) The enhanced 911 surcharge shall be 55 cents per month for each communications service connection. The surcharge shall have uniform application and shall be imposed on each communications service connection operating within the State to ensure parity of protection, except connections billed to federal, state, or county government entities.

(c) All communications service providers and resellers shall bill to and collect from each of their customers a monthly surcharge at the rate established for each communications service connection. The communications service provider or reseller may list the surcharge as a separate line item on each bill. If a communications service provider or reseller receives a partial payment for a monthly bill from a communications service customer, the communications service provider or reseller shall apply the payment against the amount the customer owes the communications service provider or reseller, before applying the partial payment against the surcharge.

(d) All communications service providers that provide communication service through a prepaid connection shall also remit the surcharge to the board. The communications service provider shall collect the surcharge on a monthly basis from each active prepaid connection customer whose account balance is equal to or greater than the amount of the surcharge.

(e) A communications service provider that:

(1) Is collecting the surcharge and remitting appropriate portions of the surcharge to the fund pursuant to this chapter; and

(2) Has been requested by a public safety answering point to provide enhanced 911 services in a particular county or counties,

may recover enhanced 911 service costs as provided in this chapter.

(f) Each communications service 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.

(g) A provider of 911 service that collects a surcharge pursuant to section 269-16.95 may retain the fee until an audit is conducted by the board. If the audit finds any cause for either a reduction or increase of the surcharge, the board shall take action to ensure that the surcharge amount provides a fair and reasonable fee consistent with national cost models and is sufficient to enable the service providers to provide enhanced 911 services for their customers.

(h) A communications service provider or reseller shall remit to the 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, less amounts retained for administrative expenses incurred by the communications service provider or reseller, as provided in subsection (f).

(i) The surcharges collected by the communications service provider or reseller pursuant to this section shall not be subject to any tax, fee, or assessment, nor are they considered revenue of the provider or reseller.

(j) Each customer who is subject to this chapter shall be liable to the State for the surcharge until it has been paid to the communications service provider. Communications service providers shall have no liability to remit surcharges that have not been paid by customers. A communications service 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 a collection action, reasonable attorney's fees and costs shall be awarded. The communications service provider, on a quarterly or other periodic basis established by the board, shall provide to the board a list of delinquent accounts that includes the customer name, billing address, and the amount of the surcharge that has not been collected.

(l) 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 or amended.

(m) When considering whether to discontinue or amend the surcharge or fund, the board's recommendations shall be based on the most current available information concerning costs associated with providing enhanced 911 service.

§ -5 Use of the fund. (a) Each public safety answering point may seek cost recovery from the fund solely to pay for the reasonable costs to lease, purchase, or maintain all equipment, including computer hardware, software, database provisioning, and support services, required by the public safety answering point to provide technical functionality for the enhanced 911 service.

(b) The board may make purchases and enter into agreements on behalf of one or more public safety answering points to pay for the reasonable costs to lease, purchase, or maintain all necessary equipment, including computer hardware, software, database provisioning, and support services, required by the public safety answering point to provide and administer technical functionality for the enhanced 911 service.

(c) Each communications service provider that provides enhanced 911 service may request reimbursement from the fund for reasonable costs incurred for providing enhanced 911 service. In no event shall a communications service provider be reimbursed for any amount above its actual costs to provide enhanced 911 service.

§ -6 Report to the legislature. (a) On or before January 1, 2011, the board shall submit to the legislature a statewide 911 deployment plan, including:

(1) A timeline for the deployment of a next generation 911 internet protocol-enabled network;

(2) A study that details the costs of equipment, network, support services, and staff necessary to deploy and operate a next generation 911 internet protocol-enabled network; and

(3) Changes to the enhanced 911 surcharge needed to support the funding of a next generation 911 internet protocol-enabled network.

(b) The board shall submit an annual report to the legislature not less than twenty days before the convening of each regular session, including:

(1) The total aggregate surcharge collected by the State in the last fiscal year;

(2) The amount of expenditures paid by the fund;

(3) The recipient of each payment and a description of the project;

(4) The conditions, if any, placed by the board on payments from the fund;

(5) The planned expenditures from the fund in the next fiscal year and subsequent four fiscal years;

(6) The amount of any unexpended funds carried forward for the next fiscal year;

(7) A cost study for the next fiscal year and subsequent four fiscal years, to guide the legislature towards necessary adjustments to the fund and the monthly surcharge; and

(8) A status report on E911 services, including public safety answering points, and communications service providers.

§ -7 Audits. (a) During any period in which an enhanced 911 surcharge is imposed upon customers, the board may request an audited report prepared by an independent certified public accountant, to determine whether the amounts recovered by public safety answering points, pursuant to section -5(a), and by communications service providers, pursuant to section -4(a), are limited to only those costs and expenses directly related to the provision of enhanced 911 service, as authorized by this chapter. The cost of the audited reports shall be considered an expense 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 use the audit to determine whether the amount of the surcharge assessed on each communications service connection should be adjusted. The costs of the audit shall be an administrative cost of the board recoverable from the fund.

§ -8 Proprietary information. (a) All proprietary information submitted to the board by any third party used by the board in connection with its duties or any public safety answering point in deploying enhanced 911 services shall be retained in confidence. Proprietary information submitted pursuant to this chapter shall not be released to any person, other than to the submitting communications service provider or reseller, the board, or any independent, third-party accounting firm retained by the board, without the express permission of the submitting communications service 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 communications service 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 communications service provider. The board shall hold all propriety information in confidence and shall adopt reasonable procedures to prevent disclosure or providing access to the proprietary information to the public and competitors, including members of the board representing other communications service providers. Members of the board shall not disclose the information to any third parties, including their employers, without the written consent of the communications service provider whose proprietary information is to be disclosed.

(c) A committee consisting of all board members, except the communications service provider representatives, shall have the power to act for the board on the specific matters defined by the board, when at least two-thirds of the members of the board determine that a board action may be conducted by the committee to prevent disclosure of proprietary information to the communications service provider representatives.

§ -9 Limitation of liability. (a) Notwithstanding any law to the contrary, in no event shall any communications service provider, reseller, or their respective employees, directors, officers, assigns, affiliates, or agents, except in cases of gross negligence or wanton and wilful misconduct, be liable for any civil damages or criminal liability resulting from the 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 enhanced 911 or any other communications service intended to help persons obtain emergency assistance. In addition, no communications service provider, reseller, or their respective employees, directors, officers, assigns, affiliates, 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 wilful misconduct, be liable for any civil damages or criminal liability resulting from the 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 enhanced 911 service.

§ -10 Database or location information. (a) Any data or information contained in a database of the enhanced 911 calling system is the sole property of the State and shall be maintained by the communications service provider designated by the board.

(b) Communications service location information, including geographical information systems information produced by any public safety answering point or public safety agency or its personnel for public safety purposes shall not be a government record subject to disclosure under chapter 92F.

(c) No person shall disclose or use, for any purpose other than the enhanced 911 calling system, information contained in the database of the enhanced 911 calling system established pursuant to this chapter.

§ -11 Dispute resolution. (a) Any communications service 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 request for reconsideration, the 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 not 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 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 communications service 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 communications service provider shall not be required to provide enhanced 911 service until the communications service provider and the board or public safety answering point providing enhanced 911 service in the county or counties in which the communications service provider is licensed to provide communications service have entered into a written agreement setting forth the basic terms of service to be provided."

SECTION 3. Chapter 138, Hawaii Revised Statutes, is repealed.

SECTION 4. This Act shall take effect on July 1, 2010.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2769
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII