- Recent amendments to the Illinois Emergency Telephone System Act will require many Illinois municipalities to consolidate their emergency call answering and dispatch facilities with those of other communities.
- Municipalities must submit compliance plans or request waivers from the consolidation mandate to the Illinois State Police Office of the Statewide 911 Administrator by July 1, 2016.
The Illinois General Assembly in Summer 2015 adopted Public Act 99-0006 (Act), which significantly amended the Emergency Telephone System Act (50 ILCS 750) (ETSA) and repealed the Wireless Emergency Telephone Safety Act (50 ILCS 751/27), for the purpose of consolidating local 911 systems in preparation for a statewide conversion to a "Next Generation" 911 system.
The Act, which became effective on Jan. 1, 2016: (i) transferred responsibility for the administration of 911 systems and the collection and distribution of 911 surcharges from the Illinois Commerce Commission to the newly created Office of the Statewide 911 Administrator (Administrator), a department of the Illinois State Police (Department), and (ii) established a cross-departmental Statewide 911 Advisory Board (Advisory Board) as a consulting body to the Department.
Most significantly for municipalities, the Act severely limits local control of the operation and maintenance of emergency telephone systems. The Act:
- rescinded local authority to collect surcharges from telecommunications carriers and wireless carriers
- replaced all local surcharges with a uniform statewide surcharge on telecommunication carriers, wireless carriers and VOIP (Voice Over Internet Protocol) providers
- imposed a statewide mandate requiring smaller emergency telephone system boards (ETSBs) and dispatch centers to consolidate their operations and facilities
This alert summarizes the Act and the emergency administrative regulations promulgated by the Department (83 Ill. Adm. Code Parts 1324 through 1329 "Emergency Rules"), and explains how the Act will affect municipal 911 call-answering and dispatch operations going forward, barring successful legislative efforts to amend the Act.
Summary of the Act
The Act was adopted to prepare Illinois for the implementation of a statewide "Next Generation" 911 system that will be administered by the Department. Next Generation 911 (NG911) systems include greater data capacity and broad interoperability with various communication media (including text messages, web submissions and video calls) than the currently operating enhanced (E911) system. All local 911 systems in Illinois are required to become NG911 compliant no later than July 1, 2020.1
The Advisory Board’s work on the Act is premised on the conclusion that there are too many independent and diverse emergency telephone systems in the state to successfully implement a NG911 solution. The Advisory Board has also concluded that consolidation of these systems would lead to greater interoperability and significant long-term cost savings at both the state and local levels. As a result, a primary goal of the Act is to reduce the number of ETSBs that the state distributes funds to, as well as the number of Public Safety Answering Points (PSAPs) that the state regulates.
Consolidation of ETS Funding
Under the Act, all local authority to impose an emergency telephone system surcharge on telecommunications has been rescinded. In place of local surcharges, there now is a statewide $0.87 surcharge (Statewide Surcharge) on all telecommunications network connections, wireless accounts, and VOIP accounts. 50 ILCS 750/20. The Statewide Surcharge is collected by the Department directly from the telecommunication and wireless carriers and VOIP providers. $0.053 of each Statewide Surcharge is retained by the state for various special funds and administrative costs. The remainder is deposited into a "Statewide 911 Fund" (Statewide Fund) from which all ETSBs are now funded. 20(b)(2).
The Department is making monthly payments to ETSBs from the Statewide Fund in amounts equal to the average monthly land line surcharge collections reported by the ETSBs to the Illinois Commerce Commission (ICC) in the Fall 2014 reporting period (Monthly Disbursements). Monthly Disbursements will remain equal to the 2014 amount regardless of the number of land line connections maintained in an ETSB's jurisdiction in the future. If a 911 Authority2 that previously maintained its own ETSB is required to consolidate into a joint intergovernmental ETS board (JETSB), its Monthly Disbursement will be remitted directly to the JETSB.
In addition to the Monthly Disbursement, the Department pays all "Network Costs" incurred by 911 Authorities outside of Chicago directly to telecommunications vendors. 50 ILCS 750/30(b)(2)(B). The ETSA defines "Network Costs" as all recurring costs that directly relate to the operation of 911 networks, including telecommunication provider charges for trunk lines, local exchange carrier charges, automatic location information (ALI) database charges and NG911 costs. 50 ILCS 750/1. Prior to the adoption of the Act, individual 911 Authorities were responsible for paying telecommunications vendors for these costs.
Finally, if there is money left over in the Statewide Fund after these distributions have been paid, the Department will remit "proportional grants" to 911 Authorities based on the number of subscribers of wireless services that have billing addresses located within the 911 Authority's jurisdiction.
Depending on the amount of its prior local surcharge, a 911 Authority may receive more funding for emergency telephone services under the new system than it did prior to the Act. However, the language of the Act does cause some concern. First, all distributions from the Statewide Fund are "[s]ubject to appropriation," which, as demonstrated by the ongoing state budget impasse, can result in mission-critical funds being withheld for extended periods of time. 83 Ill. Adm. Code 1329.610. Also, the distributions from the Statewide Fund are listed in order of priority, with the Monthly Distributions being first after the administrative withdrawals, but no absolute amounts are guaranteed to be distributed if the Statewide Fund does not have sufficient money to pay out.
Consolidation of 911 Authorities and Call Answering Facilities
The new Section 15.4a of the ETSA includes the most significant change for municipalities, requiring the consolidation of all but the largest 911 Authorities into JETSBs. The explicit goal of this mandate is to reduce the number of ETSBs, and their corresponding PSAPs, in Illinois by 50 percent in the next year.
Any 911 Authority that serves fewer than 25,000 people will be required to consolidate its ETSB with one or more other ETSBs to form a JETSB that serves a population exceeding the 25,000 threshold. 50 ILCS 750/15.4a(a)(2). Even if a 911 Authority already serves a population in excess of the 25,000 threshold but does not use a PSAP located within its jurisdictional boundaries, the 911 Authority is required to consolidate its ETSB with an ETSB or an existing JETSB that does have a PSAP within its jurisdictional boundaries. 750/15.4a(a)(2). JETSBs are formed by intergovernmental agreements that address operational, staffing and financial management issues. JETSBs require governing documents and rules of procedure like all other intergovernmental bodies.
All existing 911 Authorities that are required to consolidate under the Act must submit either a consolidation plan (Plan) or an application for a waiver from the consolidation requirement (Waiver) to the Department no later than July 1, 2016. All submissions must be made electronically. A Plan requires a 911 Authority to submit a great deal of information about how it intends to consolidate its operations, staff, equipment, and networks with its new partner communities. Plans must also include ordinances dissolving existing ETSBs and forming the new JETSB as well as intergovernmental agreements governing the JETSB. These ordinances and IGAs must have been adopted/approved prior to their inclusion in the Plan and cannot be in draft form. However, the ordinances and the IGAs may have delayed effective dates contingent upon the Administrator's approval of the Plan and the issuance of an Order of Authority to commence operation of the JETSB. The specific components of a Plan are listed in Section 1324.200 of the Emergency Rules adopted by the Department. 83 Ill. Adm. Code 1324.200. A copy of the Department's "Application for 911 Consolidation or Modified Plan" is available on the Statewide Administrator's Office.
The Act allows 911 Authorities to petition for a Waiver from the consolidation requirement in cases where consolidation: (i) will result in a substantial threat to public safety, (ii) is economically unreasonable, or (iii) is technically infeasible. The Emergency Rules offer some clarity as to how these standards will be measured:
"Threat to Public Safety" means that consolidation would place the public in greater danger of injury than if the consolidation did not occur.
"Economically Unreasonable" means that the cost of consolidation materially outweighs the benefit to the community served and makes it illogical or impractical to consolidate.
"Technically Infeasible" means that consolidation is unworkable or unviable consistent with the technical standards established in 83 Ill. Adm. Code 1328.
83 Ill. Admin 1324.110. A 911. Authorities seeking a Waiver will be required to prove that at least one of these standards applies. The wording of the Emergency Rules indicates that the Department will not grant permanent waivers from the consolidation mandate. Specifically, applications for Waivers must include both the "duration of time for which a waiver is sought" and "[a] five-year strategic plan, including, but not limited to, financial projection, for implementation of a consolidation plan." 83 Ill. Adm. Code 1324.200(e). Thus, even if it is not feasible for a 911 Authority to complete a consolidation by July 1, 2017, the 911 Authority needs to present the Department with an intended path to compliance. A copy of the Department's "Consolidation Waiver Request" is available on the Statewide Administrator's Office.
Plans and Waiver applications must be filed electronically with the Department no later than July 1, 2016. Plans and Waiver applications will be reviewed initially by the Illinois Commerce Commission to determine compliance with the ICC's technical regulations and the standards for 911 systems set forth in 83 Ill. Adm. Code 725. Within 40 days of submission, the Advisory Board will appoint an Administrative Law Judge to hold a hearing on the Plan or Waiver application and make a recommendation to the Advisory Board. Within 60 days of submission, the Advisory Board will schedule a public hearing on the Plan or Waiver application and make a final recommendation to the Statewide 911 Administrator. If there are "no contested issues in the filing" the Advisory Board may waive the requirement of a public hearing. 83 Ill. Adm. Code. 1325.210(e). The Administrator is required to make the final decision approving or denying the Plan or Waiver application within 30 days after receiving the Advisory Board's recommendation. The decision of the Administrator is considered a final administrative decision subject to judicial review under Illinois Administrative Review Law. An order approving a Plan will be considered an "Order of Authority" sufficient to commence operation of a JETSB.
Section 15.4b of the ETSA establishes a process for 911 Authorities to apply for grants to fund "non-recurring costs associated with the consolidation of 911 systems" but not for ongoing operational expenses. 50 ILCS 750/15.4b. Grants will be awarded to JETSBs to accomplish the following goals:
- reducing the number of transfers of a 911 call
- reducing the infrastructure required to adequately provide 911 network services
- promoting cost savings from resource sharing among 911 systems
- facilitating interoperability and resiliency for the receipt of 911 calls
- reducing the number of 911 systems or reducing the number of PSAPs within a 911 system
- cost savings resulting from 911 system consolidation
- expanding 911 service coverage as a result of 911 system consolidation including to areas without 911 service
Grant funds will be awarded annually by the Administrator no later than June 30 of each year, and may be applied retroactively to eligible costs that have been incurred by the 911 Authority since 2010. Funding for these grants will be taken from the Statewide Fund after monthly disbursements and network costs have been paid. The Advisory Board has set an annual cap of $12.5 million in grants to be distributed in the years 2016 and 2017, with that number rising gradually thereafter. 50 ILCS 750/30(2)(D). However, first priority for these grants will be given to counties that do not currently provide 911 service as of Jan. 1, 2016.Grant applications are due to the Department by March 31, 2016. A copy of the Department's "Request for Grant Proposals" is available on the Statewide Administrator's Office.
Practical Impacts on Municipalities
As of Jan. 1, 2016, any locally adopted Emergency Telephone System Surcharge or Emergency Wireless Surcharges are no longer of legal force and effect. They have been replaced by the Statewide Surcharge. We recommend that local codes and ordinances referring to local surcharges be amended consistent with the Act.
As mentioned above, the monthly distributions to municipalities from the Statewide Fund are set at an amount equal to the average monthly wireline surcharge collections reported by the municipality's ETSB in the October 2014 annual report to the ICC, copies of which are available on the ICC's website. To determine the amount of a municipality's monthly distribution, divide the amount of the Wireline Surcharge reported in the ILCC Form AR 9-1-1 from 2014 (Line 2 of Tab 1 or RE and RB) by 12. Further, the Department should be paying all qualifying "Network Charges" for the municipality's 911 System directly to the municipality's network vendors.
Any municipality that either has a population below 25,000 or is served by a PSAP outside of its jurisdictional boundaries, is subject to the consolidation mandate of Section 15.4a. To satisfy this requirement, these municipalities will be required to submit a plan to form or join an existing JETSB that would serve more than 25,000 customers and would maintain a PSAP within the JETSB's service area.
If a municipality subject to the consolidation requirement determines that consolidation of its 911 System by the July 1, 2017, deadline will not be possible or in the municipality's best interest, it can submit a Waiver application to the Department by July 1, 2016.
Consequences of Non-Compliance
If a municipality fails to comply with the consolidation requirements of Section 15.4a and does not receive a Waiver from the Administrator, the municipality would be in violation of the ETSA. The consequences for such a violation could be threefold:
- Without an Order of Authority issued by the Administrator, the municipality would not be eligible to receive distributions from the Statewide Fund or have its network costs paid for by the Department, potentially resulting in a large financial loss to the municipality. 83 Ill. Adm. Code 1329.200. The monthly distributions and network costs that would be retained by the Department in the Statewide Fund would likely be disbursed to other communities.
- Section 12 of ETSA grants the Illinois Attorney General the authority to commence judicial proceedings against public bodies to enforce compliance with the ETSA.
- Section 1324.200(j) of the Emergency Rules states that noncompliance with the Plan and Waiver submission requirements will "subject the county or 911 Authority submitting the plan or request for waiver to the penalty provisions of ETSA Section 15.4a(b)(1)." However, there is no Section 15.4a(b)(1) in the ETSA. This may be clarified when the Emergency Rules are revised and updated for final inclusion in the Illinois Administrative Code.
It is possible that the Act may be amended to address some of the timing, operational and financial concerns that have been raised regarding the consolidation program. Holland & Knight has extensive knowledge of the requirements of the new Act, and the firm’s local government attorneys are able to assist with the preparation of any intergovernmental agreements, code amendments, service provider contracts, and Plan or Waiver applications that may be necessary. For more information, contact your local government attorney or Stew Weiss for guidance.