8. New Rules to Govern 211 Emergency Service
We authorized implementation of the original 211 program in
D.03-02-029.26 As this new rulemaking progressed, differences of opinion arose as to whether the Rules governing regular 211 service should be revised or augmented to address 211 emergency service. 2-1-1 California originally stated that it is not seeking any changes to the original Rules. DRA suggested that ground rules for 211 emergency service should be set.
Both AT&T and Verizon Wireless suggested some changes to the original Rules, in particular, revisions that addressed the emergency nature of the new 211 service and the inapplicability of Rules to wireless carriers. DRA, on the other hand, stated that this Commission, pursuant to both federal and state authority, may require wireless carriers to offer 211 service, especially since the 211 service at issue here would be provided only during emergencies.27
During the second workshop, the parties determined that some revisions to the original program would be needed to create stand-alone rules for 211 emergency service, and that a draft set of revised Rules should be circulated for comment.28
Using the Rules authorized in D.03-02-029 as a starting point, and considering proposals and discussion at the Second Workshop, the assigned ALJ drafted and issued for comment a revised set of Rules for 211 emergency service. These Draft Rules addressed requirements for a potential Lead Entity, funding of the Lead Entity's services, and duties of a Lead Entity. The draft Guidelines provide guidance for Commission staff in their review of application letters by potential 211 emergency service providers, while the draft Instructions provide guidance to potential 211 emergency service providers in organizing their application letter. Both the Guidelines and Instructions also include a list of the information that a potential 211 emergency service provider must include in its application letter, as well as the terms it must agree to, to become a 211 emergency service provider. These Draft Rules, Guidelines, and Instructions are attached to this decision as Attachment D, for referral purposes only. Comments (summarized below) were received from 2-1-1 California, AT&T, DRA, and CCTA.
8.1. Comments on Draft Rules
2-1-1 California states that the Draft Guidelines and Instructions are unnecessarily burdensome and complex, and that they are even more prescriptive than those authorized for regular 211 service. In addition to deletion of the Draft Guidelines and Instructions, 2-1-1 California proposes:
1. Since 2-1-1 California has already made its case regarding its request to be Lead Entity, only entities applying in the future to become Lead Entity should have to file an application (Draft Rule 1);
2. Since the Lead Entity will not be providing 211 emergency service itself, the requirement that a potential Lead Entity have experience as and knowledge of being a 211 service provider, should instead state that at least half of the members of the board of directors of the proposed Lead Entity represent of an organization that would meet this requirement (Draft Rule 2.a.i. 2.a.iii., 2.a.iv.);
3. That it should not have to certify that no one associated with or employed by it as a board member, officer, director, or partner has previously been associated with a telecommunications or 211 service provider that filed for bankruptcy, was sanctioned by the FCC, or violated § 17000 et seq. of the California Business and Professions Code. 2-1-1 California believes that it should not have to certify to the above requirement, since at least one-half of its board members are representatives of 211 service providers that we have previously authorized to provide such serve, and the remaining half of the board are volunteers from non-profits and government agencies that would derive no financial benefit from their service (Draft Rule 2.b.i.);
4. That it should only have to provide selected information in an annual report to the Commission instead of a report on its various duties and compliance with the drafted Rules (Draft Rules 3 and 5). The selected information
2-1-1 California proposes to provide annually would include the current status and activities of the 211 network during the prior year, (e.g., the number of counties served by local 211 centers, the name and county served by any new 211 centers added to the network, the total number of calls handled by the network, copies of the "after action reports" that will be prepared in the regular course of business after each activation of the emergency response and recovery only (ERRO) 211 system, and any other reports that it compiles in the regular course of its duties); and5. Even though 2-1-1 California does not anticipate seeking ratepayer funding, it objects to the requirement it that may not recover any cost of performing its duties through rates charged to California ratepayers, and recommends Draft Rule 4 be deleted.
AT&T commented that the Draft Rules "do a good job of incorporating parties' comments as expressed in pleadings and at workshops." AT&T recommended several small revisions, which we discuss below.
1. Draft Rules:
a. AT&T suggests narrowing Draft Rule 2.b. so that a prospective Lead Entity only need certify that no person who was associated with an offending provider, in the same capacity, at the time an offense occurred, is associated with or employed by a prospective Lead Entity as a board member, officer, director, or partner. In other words, prior association with an entity that had committed an offense would not preclude a person from being associated with or employed by a Lead Entity unless that person had some direct involvement in commitment of the offense.
b. AT&T suggests that the annual report required by Draft Rule 3.a. be published on the Commission's website instead of being served on the service list of this rulemaking.
c. Draft Rule 3.b. did not specify the Commission entity that should receive the annual report. AT&T suggests that the report be submitted to the Director of the Communications Division.
2. Draft Guidelines and Instructions:
a. AT&T clarified that the public is the most likely recipient of the emergency information (such as location of shelters, food distribution, and road closures, as well as evacuation instructions, assistance centers, and how to contact loved ones) required by Section 2.11 of the Draft Guidelines.
b. AT&T proposes deletion of Draft Guideline Items 2.11.n - 2.11.y and Draft Instruction Items 2.13.n - 2.13.y, since this information would not be the type of information provided to the public.
c. Since the regular guidelines adopted in D.03-02-029 consider but do not require an endorsement of the applicant by California Alliance of Information & Referral Services (CAIRS) (Item 4 of the Draft Guidelines and Instructions), AT&T believes that the same Guidelines should be adopted herein.
DRA strongly supports the Draft Rules regarding certification of a potential Lead Entity, annual reporting by the Lead Entity and proscription against recovery of a Lead Entity's costs through rates charged to California ratepayers. 29 DRA also suggests a rule to the effect that the Commission may revoke a Lead Entity's authority if the Lead Entity violates any of the Rules or duties of a Lead Entity as detailed in the Rules.
CCTA agrees with 2-1-1 California that the Commission should consider deleting Draft Rule 2.b.i (certification of associates and employees). At a minimum, CCTA would like the Commission to accept AT&T's revision of that rule. CCTA is also concerned that the Draft Rules would impose "redundant or unnecessarily burdensome requirements" upon a Lead Entity or 211 emergency service provider. CCTA suggests that the Commission revise Draft Rule 3 as recommended by 2-1-1 California and accept AT&T's suggested revisions to Draft Guideline 2.11.
8.2. Discussion
211 emergency service is only provided at selected times and only in unserved areas, as opposed to the regular 211 service provided pursuant to
D.03-02-029. Thus, slightly different rules, may apply to 211 emergency service. As discussed below in more detail, we adopt a set of Rules unique to 211 emergency service.
This rulemaking is focused on the activities of the content providers (211 service providers) responding to 211 calls, not on the compliance of wireless carriers that may transmit those calls. However, it is important to note, that wireless carriers have, to date, voluntarily participated in the 211 program provided pursuant to D.03-09-028.30 This close and ongoing cooperation between the 211 service providers and wireless carriers (indeed, all telecommunications carriers that may transport 211 calls) is vital to the continued success of the 211 program. The Rules, Guidelines, and Instructions adopted herein do not impose specific requirements on the wireless carriers. Wireless carriers will continue to participate in the 211 program, including non 211 emergency service, on a voluntary basis. If any concerns are identified in the future regarding this voluntary cooperation, it will likely be reported in either the Annual Report served by the Lead Entity, or by an Advice Letter by the LEC requesting authority to provide service to a 211 service provider.
The Rules in Attachment A to this decision will apply to the appointment and performance of a Lead Entity going forward from the effective date of this decision. We clarify that 2-1-1 California does not have to file another request in addition to the one it has already made requesting appointment as the Lead Entity. By including a requirement that a potential Lead Entity make a formal request, we only plan for the possibility that some day in the future,
2-1-1 California may no longer wish to act as Lead Entity.
As for the criteria for appointing a Lead Entity, we find that having experience and knowledge of the provision of 211 service is necessary in order to be an effective leader and organizer of the service providers. An entity cannot make decisions for an entire group of 211 service providers if the entity has no understanding of the service being provided, the organizations with which the entity will work, and the sources of funding. We therefore retain Rule 2.a which addresses the qualifications of a Lead Entity; however, we only require that at least half of the Lead Entity's board of directors have the relevant experience and knowledge identified in the rule. We also retain Rule 2.b regarding certification by a Lead Entity but only require that a prospective Lead Entity certify that no person who was associated with an offending provider, in the same type of capacity that it holds with the Lead Entity, at the time an offense occurred, is associated with or employed by a prospective Lead Entity as a board member, officer, director, or partner. For example, someone that was an officer of an offending provider must not be an officer, director, or partner of the Lead Entity. We also note that the Commission may revoke a Lead Entity's designation, but do not see the need to include this as a rule.
Especially now, with the initial appointment of a Lead Entity and the authorization of the new 211 emergency service, it is important for all interested parties to be informed, and able to assess the effectiveness and performance of the new position of Lead Entity and new 211 emergency service. We therefore adopt Rule 3, which retains the information requirements set forth in the Draft Rules. However, we modify the publication requirement. The Lead Entity will serve its annual report on the Communications Division, which will then publish the report at the Commissions' website. In that way, anyone who is interested in this information will have access to it.
As discussed below, some items that were originally listed in the Guidelines and Instructions as information to be provided by the 211 service provider to the public pertain more to the Lead Entity. Instead of just eliminating these items from the Guidelines and Instructions, we include them in the duties of a Lead Entity as additions to Final Rule 5. Compiling information such as call analysis, assessment of effectiveness and penetration of information during a disaster, and liaison with Voluntary Organization Active in Disasters and other nongovernmental organizations, is appropriate to a Lead Entity that is organizing the efforts of all 211 emergency service providers before, during and after an emergency. We therefore require the following additional duties be added to Final Rule 5:
a. Perform call analysis and assess effectiveness and penetration of disaster related information within county or locality served;
b. Act as liaison with governmental, non-governmental, and voluntary organizations that 211 service providers work with during both normal periods and emergencies;
c. Ensure that the public is aware of the 211 service provided, during both normal periods and emergencies;
d. In order to ensure the provision of 211 service during an emergency, develop a redundant statewide 211 telecommunications system throughout California; and
e. Develop an infrastructure of trained staff familiar with the populations that will be served by 211 during both normal periods and emergencies.
We direct that the Director of the Communications Division be the recipient of any reports issued by the Lead Entity or the 211 service providers, to other agencies regarding a declared emergency. We also direct that the Communications Division publish these reports as well as Lead Entity's annual report.
In its comments to the Draft Rules, 2-1-1 California states that, even though it does not anticipate seeking ratepayer funding, "ratepayer funding is beyond the scope of this proceeding" and the applicable Rule (Draft Rule 4), should be deleted. However, this issue was discussed at the second workshop,31 and we note that while precluding ratepayer funding, Draft Rule 4 also clarifies that alternative public funding sources (e.g. the California Teleconnect Fund) are not precluded. We therefore adopt Draft Rule 4 as written.
While some parties consider the Draft Guidelines and Instructions duplicative or burdensome, we should ensure that even this service, albeit one that is free to the public and provided only during emergencies, is provided by entities qualified to provide such service.
The 211 emergency service providers themselves do pay for the routing service they receive from the LEC. In this regard, the routing of the calls is analogous to a specialized tariff schedule or contract for services provided to a limited number of a utility's ratepayers. Given the special nature of 211 emergency service, it is appropriate for the Commission to create a qualifications process for the potential subscriber (i.e., the 211 emergency service provider) for that specialized routing service.
Even though the FCC has not designated 211 as an emergency number, the form of 211 service we discuss herein would be used only during an emergency, albeit in a supporting role. It is for calls that do not require a 911 response, but that aid in keeping 911 open and available to those in imminent danger.
Therefore, we retain all of the Draft Guidelines and Instructions, with selected modifications. By modifying the Draft Guidelines and Instructions, we balance parties' concerns that 211 service providers have already been authorized to provide such service with our responsibility to confirm an applicant's continued ability to provide the proposed service.
We note that some numerical references to section numbers between the Draft and Final versions of the Guidelines and Instructions have changed. Where this occurs, we will note the change.
We anticipate that the majority of 211 service providers who will be providing 211 emergency service already have authorization from the Commission to provide regular 211 service. These currently-authorized 211 service providers need only submit an application letter to the Executive Director in order to request authority to provide 211 emergency service to unserved counties or localities. The Communications Division staff should then review the application letter to verify that the required information, pursuant to the Guidelines and Instructions, is included. In reviewing the application letter, the Communications Division staff exercises its ministerial authority, similar to that of a review of a Tier 2 advice letter pursuant to G O 96-B. Similar to a Tier 2 advice letter, but unlike the requirement for regular 211 service, we do not require a resolution to authorize provision of 211 emergency service. Instead of a resolution, the 211 emergency service application letter is resolved by a letter from the Communications Division Director to the prospective 211 emergency service provider, with a copy to the Lead Entity.
By requiring the 211 emergency service provider to request permission to serve unserved counties and localities via an application letter, the Commission receives the information necessary to ensure that the provider has already been authorized by us to provide regular 211 service, and is able to keep track of which unserved counties and localities are receiving 211 emergency service. We are then able to determine which unserved areas remain unserved and continue to require assistance. The related tariff or contract filed by the LEC (if required by GO 96-B) in regard to the 211 emergency service request will continue to be processed as it has been pursuant to D.03-02-029 and GO 96-B. If an LEC provides this routing service as a detariffed or non-tariffed service in accordance with GO 96-B, Telecom Industry Rule 8.2, such service is not subject to Commission approval. If we have not previously authorized a potential 211 emergency service provider to provide such service, it must file an application with this Commission requesting authority to provide regular 211 service pursuant to D.03-09-028. Additionally, the application must include all of the information discussed above that is required of a previously-authorized 211 service provider.
The Guidelines and Instructions include a detailed list of the type of information that should be available when someone calls a 211 emergency service provider. As with regular 211 service, 211 emergency service should be provided to the general public. Some of items listed in the Guidelines and Instructions as information to be provided to the public are more appropriately included as duties of a Lead Entity. We therefore move Draft Guideline 2.11 n through y (except o) and Instruction 2.13 n through y (except o) to Rule 5 of the Final Rules. Item "o" of the Draft Guidelines and Instructions is retained because it addresses clarification of rumors, which we find is important to the public during emergencies.
In regard to Draft Guideline and Instruction 4, we understand that, pursuant to D.03-02-029, an endorsement from the California Alliance of Information and Referral Services (CAIRS) is voluntary for regular 211 service. Also, regular 211 service providers that plan to request authority to provide 211 emergency service have already received our authority to provide regular 211 service. Since endorsement for regular 211 service providers is voluntary, and current 211 service providers have already been authorized by us to provide regular 211 service, a CAIRS endorsement will be voluntary for prospective 211 emergency service providers as well.
26 For convenience, in some instances during the balance of this decision, we will use the term "Rules" to identify 211 emergency service rules, guidelines, and instructions.
27 DRA references: federal authority pursuant to 47 U.S.C. §§ 251 and 332 regarding delegation of authority by the FCC to state commissions; and state authority pursuant to D.09-08-029, in which the Commission asserted its authority over wireless carriers for public safety purposes regarding the maintenance of telecommunications equipment on utility poles.
28 Volume WS-2 Reporters Transcript (RT) at 32.
29 Draft Rule 4. "A 2-1-1 Lead may not recover any cost of performing its duties through rates charged to California ratepayers. This does not preclude a 2-1-1 service provider or 2-1-1 Lead from being eligible for any subsidy under the California Teleconnect Fund."
30 In those counties where wireless carriers provide service in the 211 program, a customer who calls 211 from their cell phone will be routed to the nearest 211 service provider.
31 Volume WS-2 Reporters Transcript (RT) at 41-43.
