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In Legal Terms
- Legislative Wrap-Up Issue 2005
Funding for 911 services important issue for counties
Proper funding for local emergency communication districts (ECDs) providing 911 services throughout Alabama has become an important issue for Alabama counties in recent years. In fact, one bill on the ACCA's 2005 Legislative Program was to increase the wireless phone service fee for enhanced 911 services. The bill did not move, but future efforts will surely be made. In the meantime, existing 911 funding sources must be protected and vigorously enforced.
Counties and the local ECDs were very successful in protecting current 911 funding during the 2005 Legislative Session. When BellSouth and other telephone companies introduced legislation to deregulate several of their activities, it raised concerns that changes in regulation would negatively impact 911 funding. The sponsors of this legislation quickly agreed to language ensuring adequate protection of current 911 funding levels and Act No. 2005-111, sponsored by Senator Gary Tanner and Representative Marcel Black, was easily passed into law as a companion to the new deregulation law.
Act No. 2005-111 ensures that the tariff rate used to determine the maximum rate of the fee levied under § 11-98-5 is the maximum tariff charged for any bundled service provided by any service supplier in the district either on February 1, 2005, or on the date of levy and collection, at the discretion of the ECD board. The law includes a process for adjusting this rate every five years. Additionally, it contains a provision requiring that service providers collect the fee on all wired telephone service, including services provided via the Internet.
In addition to legislative activities, counties should also be aware of cases impacting 911 programs and their funding. For example, in Hutchinson v. Choctaw County Emergency Communication District, [Ms. 2030044], ____ So.2d ___, 2004 Ala. Civ. App. LEXIS 578 (Ala. Civ. App. 2004), the Alabama Court of Civil Appeals recently held that under Code of Alabama 1975, § 11-98-5(a)(1), an ECD which is not fully operational within 36 months of the first date of collection of an authorized telephone service charge must suspend collection and refund all monies received.1
According to the facts set out in that case, on the same day that the 911 service for the Choctaw County Emergency Communications District (CCECD) became operational, a group of citizens sued, seeking suspension of the telephone service charge approved by voters and a refund of all charges previously collected. They alleged that the CCECD failed to have "service online" within 36 months of the start of collections. The trial court ruled that the CCECD was in substantial compliance with statutory requirements to have the program running within 36 months of first collection. However, the appellate Court held that since the 911 system was not fully operational within the statutory time period, the trial court had erred. This case was remanded and is pending in the trial court.2 However, this holding is currently controlling law in Alabama, and unless altered by legislation or further appellate proceedings, would apply to any ECD in the same circumstance.
In another case, the appellate Court held that an ECD cannot retain an area annexed into a municipality governed by a different ECD. See, City of Hoover Communications District v. BellSouth Telecommunications, et al., 712 So.2d 1095 (Ala. Civ. App. 1997). There, Hoover annexed property serviced by the Shelby County ECD, which continued to collect the revenues from the annexed area, but transferred service calls from that area to the Hoover ECD. The Court held that while the ECD statute did not directly address this issue, it did not intend that one district would receive revenues generated from residents without providing services, and that a communications district could not retain revenues from an area annexed into a different district.
Another case, still pending in the Circuit Court of Chambers County could also have broad impact on ECD funding and service-related issues throughout the state. Here, the Chambers County Communications District was created in 1986 to provide 911 services to all parts of the county, and the voters approved a county-wide telephone service charge to fund the program. In 1999, the city of Valley passed a resolution to create its own ECD to service that city. To date the program is not operational.
In August 2004, the Chambers County ECD filed for a court determination regarding, among other things, whether the municipality could legally form a separate ECD without the consent of the county ECD or of the voters, and whether the newly-formed ECD could receive a portion of the collections from the county-wide service charge. After this lawsuit was filed, the city held a special election on levying a service charge or having the Valley portion of the current charge transferred to the new ECD.3 Although the voters in Valley approved having the service charge from its residents paid to the Valley ECD, the County program continues to receive all funds pending the outcome of this lawsuit.
The potential damage to the Chambers County ECD created by the formation of the Valley ECD and the potential loss of funding is obviously staggering. If the court rules in favor of the Valley ECD, the Chambers County ECD could lose a substantial portion of its current funding, and if the Valley ECD does become operational, there will surely be great confusion in determining which calls should be handled by which ECD. This matter may be settled by the parties prior to trial, and hopefully that will be the case. However, if it is not resolved, any ruling by the trial court will surely be appealed by the losing party, and any decision by the appellate court could impact all county programs in the state.
It is unclear why the city of Valley chose to create its own ECD. However, if it is successful in "pulling out of" the county program, this effort could be tried in other areas. The existing ECDs throughout the state have worked hard to create programs to effectively and efficiently provide enhanced 911 services to both their own citizens and persons traveling within their jurisdiction. A process allowing for defection from those programs would not only create serious funding problems for programs already severely financially strapped, but it would potentially cause great confusion and create disjointed programs. It would, in essence, break a system the ECDs have worked hard to fix over the last twenty-five years.
1 Code of Alabama 1975, § 11-98-5(a)(1), provides that, "The district shall have service on line no later than 36 months from the start of collections or suspend all collections until the district provides the service and shall refund all collections made during this 36 month period of time."
2 No money has been refunded to date.
3 The County ECD filed for a restraining order to prevent the election, but that motion was denied.
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