You are on page 1of 246

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 1

Case No. 16-5149/


16-5150/16-5151/16-5152/16-5153/16-5154/16-5155/16-5156/16-5157/16-5158
IN THE

United States Court of Appeals


FOR THE SIXTH CIRCUIT
HAMILTON COUNTY EMERGENCY
COMMUNICATIONS DISTRICT, et al.,
Plaintiffs-Appellants,
v.
BELLSOUTH TELECOMMUNICATIONS,
dba AT&T Tennessee,
Defendant-Appellee.
On Appeal from the United States District Court
Eastern District of Tennessee, Chattanooga Division
Case No. 1:11-cv-00330 (Lead Case) (The Honorable Curtis L. Collier)
BRIEF OF PLAINTIFFS-APPELLANTS
FREDERICK L. HITCHCOCK
(Counsel of Record)
YOUSEF A. HAMADEH
WILLA B. KALAIDJIAN
CHAMBLISS, BAHNER & STOPHEL, P.C.
605 Chestnut Street, Suite 1700
Chattanooga, TN 37450
(423) 756-3000

MICHAEL J. MAHN
711 Signal Mountain Road, PMB 316
Chattanooga, TN 37405
(423) 280-7961

Counsel for the Plaintiff-Appellant Districts

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 2

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5149 Name:

Hamilton County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Hamilton County
Emergency Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 3

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5150 Name:

Bradley County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Bradley County
Emergency Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

ii

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 4

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5151 Name:

Blount County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Blount County Emergency
Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

iii

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 5

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5152 Name:

Bedford County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Bedford County
Emergency Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

iv

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 6

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5153 Name:

Coffee County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Coffee County Emergency
Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 7

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5154 Name:

Roane County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Roane County Emergency
Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

vi

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 8

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5155 Name:

Franklin County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Franklin County
Emergency Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

vii

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 9

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5156 Name:

Giles County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Giles County Emergency
Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

viii

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 10

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case
Case Number: 16-5157 Name:

Cheatham County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Cheatham County
Emergency Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

ix

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 11

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT

Disclosure of Corporate Affiliations


and Financial Interest
Sixth Circuit
Case Number: 16-5158

Case
Name:

Knox County Emergency Communications


District, et al. v. Bellsouth Telecommunications
dba AT&T Tennessee

Name of counsel: Frederick L. Hitchcock


Pursuant to Sixth Circuit Rule 26.1, Plaintiff-Appellant, Knox County Emergency
Communications District, makes the following disclosure:
1.

Are any said parties a subsidiary or affiliate of a publicly owned


corporation? If Yes, list below the identity of the parent corporation or
affiliate and the relationship between it and the named party:
Plaintiff-Appellant is a political subdivision of the State of Tennessee.

2.

Is there a publicly owned corporation, not a party to the appeal, that has a
financial interest in the outcome? If yes, list the identity of such corporation
and the nature of the financial interest:
No.

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 12

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................. xiv
STATEMENT IN SUPPORT OF ORAL ARGUMENT ..................................... xvii
STATEMENT OF JURISDICTION..........................................................................1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .............................3
STATEMENT OF THE CASE ..................................................................................4
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT ...........................................................................................................10
I.

II.

THE DISTRICT COURT ERRED IN ACCEPTING BELLSOUTHS


ARGUMENT THAT THERE WAS NO GAP BETWEEN THE
LINES BELLSOUTH SHOULD HAVE BILLED 911 CHARGES
AND LINES ON WHICH IT CHOSE TO BILL 911 CHARGES. ..............10
A.

BellSouths own expert acknowledged the large Gap in


December 2010 reports. ......................................................................11

B.

BellSouths own expert acknowledged that, even under


interpretations most favorable to BellSouth, BellSouth
could not explain the Gap of thousands of lines in every
month before the Districts filed suit. ...................................................13

THE DISTRICT COURT ERRED WHEN IT DISMISSED THE


DISTRICTS CAUSE OF ACTION SEEKING TO ENFORCE THE
ECD LAW. ....................................................................................................16
A.

The legislature has recently expressed the clear intent


that courts may recognize the Districts implied cause of
action. ..................................................................................................16

B.

The District Court improperly applied the standards set


forth in Brown v. Tenn. Title Loans, Inc. ............................................18

xi

Case: 16-5149

C.

Document: 17

Filed: 04/11/2016

Page: 13

1.

The District Court should have found that each of


the Districts is an intended beneficiary within the
protection of the statute ...........................................................18

2.

The District Court improperly found that the


Districts action to enforce the ECD Law was not
consistent with the legislatures intent. .....................................20
a.

The ECD Law does not provide an alternative


cause of action against service users for unbilled
911 Charges. ...................................................................21

b.

The good faith defense demonstrates legislative


intent to provide private causes of action to
enforce the Law...............................................................22

c.

Districts are municipalities that have the right to


sue just as Alabama communications districts. ..............22

The District Court erred in holding that an implied cause


of action was not consistent with the purposes of the
ECD Law. ............................................................................................24

III.

THE DISTRICT COURT ERRED WHEN IT FAILED TO FIND


THAT BELLSOUTH OWED THE DISTRICTS FIDUCIARY
DUTIES. ........................................................................................................25

IV.

THE DISTRICT COURT ERRED IN GRANTING SUMMARY


JUDGMENT DISMISSING THE DISTRICTS TENNESSEE
FALSE CLAIMS ACT CLAIMS. .................................................................30
A.

BellSouths Reports to the Districts Were False. ................................32

B.

BellSouth Has Asserted No Interpretive Dispute as to


Many Lines in the Gap. .......................................................................35

C.

The Districts claims are not limited only to those lines


as to which BellSouth claims to have interpretive
disputes. ...............................................................................................36

D.

BellSouth failed to properly bill 911 Charges on lines as


to which BellSouth admits 911 Charges should have been
billed. ...................................................................................................37

xii

Case: 16-5149

E.

Document: 17

Filed: 04/11/2016

Page: 14

BellSouth had knowledge of the falsity of its reports


because its interpretations of the ECD Law were not
reasonable. ..........................................................................................38
1.

The 100-Line Cap .....................................................................39

2.

Centrex Station Lines ................................................................41

3.

Federal Government Lines ........................................................44

4.

Mutliplex Lines .........................................................................47


a.

The ECD Law Is Clear. ..................................................51

b.

TECB Has Authoritatively Interpreted the ECD


Law..................................................................................52

c.

The TNAG Confirmed TECBs Authoritative


Interpretation of the ECD Law. ......................................53

d.

The Actions of BellSouths Key Managers Show


BellSouths Interpretation Was Unreasonable...............53

e.

The Chronology Shows That BellSouths Contrary


Interpretation Was Unreasonable. .................................54

f.

The Districts Did Not Have Knowledge of


BellSouths Wrongdoing. ................................................55

CONCLUSION ........................................................................................................58
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................59
CERTIFICATE OF SERVICE ................................................................................60
STATUTORY ADDENDUM .................................................................................61
ADDENDUM ........................................................................................................206

xiii

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 15

TABLE OF AUTHORITIES
Cases
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ..................................................................................... 36, 56
Arizona Laborers, Teamsters & Cement Masons Local 395 Health &
Welfare Trust Fund v. Conquer Cartage Co.,
753 F.2d 1512 (9th Cir. 1985) ............................................................................34
Board of Park Comrs v. City of Nashville,
134 Tenn. 612, 185 S.W. 694 (1916) .................................................................23
Brown v. Tenn. Title Loans, Inc.,
328 S.W.3d 850 (Tenn. 2010) ................................................. 3, 8, 16, 18, 20, 24
Century Tel of Alabama, LLC v. Dothan/Houston County
Communications District,
____ So.3d ___, 2015 WL 5725111 (Ala. Sept. 30, 2015) ................................23
Cort v. Ash,
422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).............................................18
E.E.O.C. v. United Association of Journeymen & Apprentices of the
Plumbing & Pipefitting Industry, Local 189,
427 F.2d 1091 (6th Cir. 1970) ............................................................................47
Madison County Communications Dist. v. BellSouth Telecomms., Inc.,
No. 5:06-cv-01786-CLS, 2009 WL 9087783 (N.D. Ala. March 31,
2009) .............................................................................. 22, 23, 33, 43, 48, 50, 53
Minnesota Assn of Nurse Anesthetists v. Allina Health Sys. Corp.,
276 F.3d 1032 (8th Cir. 2002) ..................................................................... 32, 55
Morrison v. City of Bolivar,
No. W2011-01874-COA-R9-CV, 2012 WL 2151480 (June 14, 2012) .............17
Owens v. State,
908 S.W.2d 923 (Tenn.1995) .............................................................................23
U.S. ex rel. Augustine v. Century Health Servs., Inc.,
136 F.Supp.2d 876 (M.D. Tenn. 2000)...............................................................31

xiv

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 16

United States ex rel. Hochman v. Nackman, 145 F.3d 1069 (9th Cir.
1998) ...................................................................................................................54
United States ex rel. Williams v. Renal Care Group, Inc.,
696 F.3d 518 (6th Cir. 2012) ....................................................................... 32, 41
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) .......................................46
White v. Revco Disc. Drug Ctr., Inc., 33 S.W.3d 713 (Tenn. 2000) ................ 27, 28

Statutes
28 U.S.C. 1332 ........................................................................................................1
28 U.S.C. 1291 .........................................................................................................2
Tenn. Code Ann. 7-86-108(a)(1) ................................................................. 39, 126
Tenn. Code Ann. 7-86-110 ...................................................................................26
Tenn. Code Ann. 1-3-119(c)(4) .........................................................................8, 17
Tenn. Code Ann. 4-18-102(2)................................................................................30
Tenn. Code Ann. 4-18-103(a)(7) ...........................................................................30
Tenn. Code Ann. 7-86-101 ........................................................................... 20, 143
Tenn. Code Ann. 7-86-102(a) ................................................................................24
Tenn. Code Ann. 7-86-102(b)(1) .................................................................... 20, 24
Tenn. Code Ann. 7-86-103(7)......................................................................... 42, 52
Tenn. Code Ann. 7-86-106 ....................................................................................23
Tenn. Code Ann. 7-86-108(a)(1)(A)......................................................... 25, 35, 52
Tenn. Code Ann. 7-86-108(a)(2)(A)......................................................................29
Tenn. Code Ann. 7-86-108(b)......................................................................... 26, 29
Tenn. Code Ann. 7-86-108(c) ................................................................................21

xv

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 17

Tenn. Code Ann. 7-86-108(e)(1) ...........................................................................26


Tenn. Code Ann. 7-86-110(c) ......................................................................... 21, 22
Tenn. Code Ann. 7-86-110(e) ................................................................................22
Tenn. Code Ann. 7-86-306 ................................................................. 40, 49, 52, 53
Tenn. Code Ann., 4-18-101 .....................................................................................5

Rules
Federal Rule of Appellate Procedure 3 ......................................................................2
Federal Rule of Appellate Procedure 4(a)(1)(A) .......................................................2

Other Authorities
62 Fed. Reg. 31,885 .................................................................................................48
Tenn. Comp. R. & Regs. 1220-4-8-.13(g) ...............................................................56
Tenn. Comp. R. & Regs. 1220-4-8-.13(g)(2) ..........................................................56
Tenn. Op. Att. Gen. 07-38 .......................................................................................48
Tenn. Op. Atty. Gen. 07-38 (March 28, 2007), 2007 WL 1054077 ................. 50, 53
Tenn. Op. Atty. Gen., No. U95-013 (Mar. 3, 1995) ................................................45

xvi

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 18

STATEMENT IN SUPPORT OF ORAL ARGUMENT


The Appellants respectfully request oral argument. These consolidated
cases involve a very extensive record and numerous legal authorities. Oral
argument will provide an opportunity for the parties to address questions of the
Court concerning such matters.

xvii

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 19

STATEMENT OF JURISDICTION
A.

Subject Matter Jurisdiction of the United States District Court:


Subject matter jurisdiction in each of the consolidated cases was vested in

the United States District Court for the Eastern District of Tennessee upon the
filing of each Districts complaint, alleging complete diversity and that the amount
in controversy exceeded $75,000, exclusive of interest and costs. The District
Court was vested with jurisdiction to adjudicate the claims of each District
pursuant to 28 U.S.C. 1332. The date of filing of the complaint in each of the
consolidated cases was:
District Court Judgment Order
District
Case Number Record No.
Hamilton
1:11-cv-00330 R.327 (PageID#20839County
20840)
Bradley
1:12-cv-00003 R.60 (PageID#1244County
1245)
Blount County 1:12-cv-00056 R.46 (PageID#952953)
Bedford
1:12-cv-00131 R.39 (PageID#777County
778)
Coffee County 1:12-cv-00138 R.44 (PageID#786787)
Roane County 1:12-cv-00139 R.42 (PageID#785786)
Franklin
1:12-cv-00149 R.43 (PageID#846County
847)
Giles County 1:12-cv-00166 R.46 (PageID#775776)
Cheatham
1:12-cv-00176 R.28 (PageID#387County
388)
Knox County 1:12-cv-00186 R.27 (PageID#388389)

Notice of Appeal
Record No.
R.328 (PageID#2084120842)
R.61 (PageID#1246-1247)
R.47 (PageID#954- 955)
R.40 (PageID#779- 780)
R.45 (PageID#788- 789)
R.43 (PageID#787- 788)
R.44 (PageID#848- 849)
R.47 (PageID#777- 778)
R.29 (PageID#389- 390)
R.28 (PageID#390- 391)

Case: 16-5149

B.

Document: 17

Filed: 04/11/2016

Page: 20

Subject Matter Jurisdiction of the United States Court of Appeals:


Appellate jurisdiction in this cause was vested in this Court upon the filing

of a notice of appeal by each Appellant on February 3, 2016, by virtue of 28 U.S.C.


1291, and Federal Rule of Appellate Procedure 3. The record references are:

District
Hamilton County
Bradley County
Blount County
Bedford County
Coffee County
Roane County
Franklin County
Giles County
Cheatham County
Knox County
C.

District Court
Case Number
1:11-cv-00330
1:12-cv-00003
1:12-cv-00056
1:12-cv-00131
1:12-cv-00138
1:12-cv-00139
1:12-cv-00149
1:12-cv-00166
1:12-cv-00176
1:12-cv-00186

Complaint filed
11/14/11
01/05/12
02/22/12
04/19/12
04/27/12
04/27/12
05/03/12
05/22/12
06/01/12
06/13/12

Appellate Case
Number
16-5149
16-5150
16-5151
16-5152
16-5153
16-5154
16-5155
16-5156
16-5157
16-5158

Timeliness of the Appeal:


The District Court granted BellSouths Motion for Summary Judgment and

entered its Judgment Order in each of the consolidated cases on January 5, 2016.
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), each District timely
filed its notice of appeal on February 3, 2016.
D.

Appeal Assertion:
This appeal is from a final judgment of the District Court in each of the

consolidated cases, which disposed of all claims with respect to all parties. The
record reference to the Judgment Orders is set forth in the first table above.

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 21

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW


The issues presented for review address aspects of the fundamental question
of whether BellSouth can be held accountable when it chose not to bill and remit
911 Charges on telephone lines that can be used to make 911 calls, as required by
the ECD Law, depriving Tennessee emergency communications districts of
revenue needed to provide life-saving 911 services to the public.
I.

II.

Whether the District Court erred in accepting BellSouths argument that


there was no Gap between the lines BellSouth should have billed 911
charges and lines on which it chose to bill 911 Charges, where:
A.

BellSouths own expert acknowledged the large Gap in December


2010 reports; and

B.

BellSouths own expert acknowledged that, even under interpretations


most favorable to BellSouth, BellSouth could not explain the Gap of
thousands of lines in every month before the Districts filed suit.

Whether the District Court erred when it dismissed the Districts cause of
action seeking to enforce the ECD Law, where:
A.

The legislature has recently expressed the clear intent that courts may
recognize the Districts implied cause of action.

B.

The District Court improperly applied the standards set forth in


Brown v. Tenn. Title Loans, Inc.

C.

The District Court erred in holding that an implied cause of action was
not consistent with the purposes of the ECD Law.

III.

Whether the District Court erred when it failed to find that BellSouth owed
the Districts fiduciary duties.

IV.

Whether the District Court erred in granting summary judgment dismissing


the Districts Tennessee False Claims Act claims, where:
A.

BellSouths reports to the Districts were false.

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 22

B.

BellSouth has asserted no interpretive dispute as to many lines in the


Gap.

C.

The Districts claims are not limited only to those lines as to which
BellSouth claims to have interpretive disputes.

D.

BellSouth failed to properly bill 911 Charges on lines as to which


BellSouth admits 911 Charges should have been billed.

E.

BellSouth had knowledge of the falsity of its reports because its


interpretations of the ECD Law were not reasonable.
STATEMENT OF THE CASE

The Districts are municipal corporations created under the Tennessee


Emergency Communications District Law (ECD Law) that provide essential,
lifesaving 911 emergency communications services to the citizens of the counties
they serve. For a large portion of the funds they use to provide these critical
services, the Districts rely upon 911 charges they have levied on phone lines
pursuant to the ECD Law (911 Charges). BellSouth is the largest supplier of
telephone lines in the counties the Districts serve, and the Districts have relied
upon 911 Charges on lines supplied by BellSouth for the bulk of the funds
necessary for their operations.
Over the past decade, BellSouth has deprived the Districts of tens of millions
of dollars in revenue needed to provide critical 911 emergency services by failing
to bill and collect 911 Charges on all of its lines that are subject to a 911 Charge
and by failing to remit such charges to the Districts. BellSouth has knowingly filed

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 23

false reports with each District each month, as well as false annual accountings,
representing falsely that it had billed all of its lines subject to 911 Charges.
BellSouth has purposefully not billed a substantial portion of its lines, particularly
business subscriber lines, for competitive reasons arising in the wake of the federal
Telecommunications Act of 1996, which removed its monopoly as the sole
telephone supplier in the counties served by the Districts and required it to compete
with other telephone companies.
The instant cases were filed as a last resort after BellSouth refused to
provide information to the Districts regarding the number of lines it had in service.
The first of the ten (10) suits was filed by Hamilton ECD in November 2011, and
the last suit was filed by Knox ECD in June 2012. While the facts in each District
may vary in terms of line counts and other issues, the legal theories pursued by the
Districts are essentially the same.
The Districts complaints asserted claims for violation of the Tennessee
False Claims Act, Tenn. Code Ann., 4-18-101, et seq. (TFCA), for violation of
the ECD Law, for breach of fiduciary duty, for fraudulent misrepresentation, for
fraudulent concealment, for negligent misrepresentation, for negligence and
negligence per se, for declaratory judgment, and for injunction. E.g. Hamilton

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 24

ECD First Amended Complaint (Hamilton FAC), R.13, PageID#114-152.1


On August 20, 2012, the District Court granted, in part, BellSouths motion
to dismiss, dismissing only the Districts claims for violation of the ECD Law and
for negligence. The District Court denied as premature the Districts motion for
partial summary judgment, which sought declaratory and injunctive relief as to
BellSouths obligations to bill 911 Charges on certain line types. Memorandum
(Memorandum), R.38, PageID#993-1024; Order, R.39, PageID#1025-1026.
In August, 2013, BellSouth moved for partial summary judgment on the
Districts claims that BellSouth was jointly responsible for 911 Charges with
certain other telephone suppliers. In March, 2014, BellSouth moved for summary
judgment on the Districts remaining claims. On the same date, the Districts
moved for partial summary judgment asking the District Court to find that
BellSouth owed the Districts fiduciary duties and to declare the proper
interpretation of the ECD Law regarding the assessment of 911 Charges on six
specific categories of lines.
On January 5, 2016, the District Court granted BellSouths motion for
summary judgment, dismissing all of the Districts remaining causes of action, and
denied the Districts motion for partial summary judgment, in part on the merits,
1

The Districts removed, without prejudice, from their second amended complaints
the causes of action dismissed by the District Courts 8/12/12 Order. Districts
Motion, R.51, PageID#1113-1116; Order, R.60, PageID#1477.

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 25

and in part as moot.2 Memorandum (Memorandum), R.326, PageID#2078420838; Judgment Order, R.327, PageID#20839-20840.
The Districts appeal the District Courts ruling dismissing the Districts
private cause of action for enforcement of the ECD Law. The Districts appeal the
District Court ruling granting BellSouths motion for summary judgment as to the
Districts fiduciary duty and TFCA claims. The Districts further appeal the
District Courts denial of the Districts motion for partial summary judgment as to
the existence of a fiduciary relationship between the Districts and BellSouth.
SUMMARY OF THE ARGUMENT
In this appeal, the Districts ask that this Court correct errors of the District
Court concerning issues of fact and law that denied the Districts the right to
proceed with causes of action to recover funds critical to their life-saving 911
services.
First, the Districts ask that this Court find that the District Court improperly
2

The District Court declined to rule on the proper interpretation of the ECD
Law for four of the six categories of lines that were the subject of the Districts
motion. The District Court ruled only on UNE-P lines and jointly-provided lines,
finding that the ECD Law did not require BellSouth to assess 911 Charges on those
two categories. The District Courts ruling on BellSouths motion for summary
judgment pretermitted the issue as to the interpretation of the ECD Law concerning
the other four categories. The Districts are not appealing the District Courts
ruling on UNE-P lines and jointly-provided lines, as they have brought separate
lawsuits against other telephone suppliers. By agreement, the District Court has
stayed those lawsuits pending the outcome of this appeal.

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 26

found that there was no genuine issue of material fact concerning the existence of a
large Gap between lines on which BellSouth was obligated to bill 911 Charges and
the lines on which it chose to bill 911 Charges. BellSouths own expert
acknowledged that the Gap consisted of many thousands of lines, even after he
applied BellSouths most favorable interpretation of the ECD Laws requirements.
Second, the Districts ask that the Court reverse the District Courts dismissal
of the Districts private cause of action to enforce the ECD Law. The District
Court did not give effect to Tenn. Code Ann. 1-3-119(c)(4), which expresses the
legislatures intent that a court may recognize the Districts private cause of action
to collect fees owed for a government service or to recover such fees from a party
that is obligated to bill and collect fees owed others for a government service.
Further, the District Court did not properly construe or apply the factors set forth
in Brown v. Tennessee Title Loans, Inc., 328 S.W.3d 850, 855 (Tenn. 2010).
Third, the Districts ask that this Court reverse the District Courts conclusion
that BellSouth did not owe fiduciary duties to the Districts. The Court should
reverse the District Courts denial of the Districts motion and grant of BellSouths
motion for summary judgment on the issue of fiduciary duty. The record shows
that BellSouth was the agent of each of the Districts, because they exercised
control over BellSouth through the initial levy of a 911 Charge and specification of
the date on which BellSouth was required to begin billing and collecting the 911

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 27

Charge. Under the ECD Law, BellSouth was the only entity that could bill and
collect the 911 Charges that the Districts levied. Only BellSouth had information
about the identity of its customers and the number and types of its lines in service.
The District Court incorrectly concluded that the Districts and BellSouth were in
an arms-length commercial relationship instead of an agency relationship that
imposed fiduciary obligations on BellSouth.
Fourth, the Districts ask the Court to reverse the District Courts grant of
summary judgment dismissing their Tennessee False Claims Act (TFCA) claims.
The District Court erroneously failed to find that monthly and annual reports
submitted by BellSouth were objectively false, when they said that BellSouth
billed 911 Charges on all the lines required to billed by the ECD Law, but in fact
listed far fewer lines only the ones that BellSouth chose to bill. Where the Gap
between lines that should have been billed and lines that were reported involved
lines as to which there was no interpretive dispute by BellSouth, the District Court
should have found that BellSouth knowingly filed false reports to reduce the
amounts to be paid to the Districts. Where BellSouth claimed that it did not
knowingly file false reports because it interpreted the ECD Law not to require it to
bill 911 Charges on four (4) types of lines, the District Court should have found
that BellSouths claimed interpretations were unreasonable, and it thus knowingly
filed false reports. Alternatively, the District Court should have found that there

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 28

existed genuine issues of fact concerning whether BellSouths interpretations were


unreasonable.
Finally, the District Court erred in accepting BellSouths argument that the
Districts knew of BellSouths wrongdoing. The record shows the Districts did not.
And, as the Court correctly stated, any suggestion of knowledge by the Districts
was immaterial.
ARGUMENT
I.

THE DISTRICT COURT ERRED IN ACCEPTING BELLSOUTHS


ARGUMENT THAT THERE WAS NO GAP BETWEEN THE LINES
BELLSOUTH SHOULD HAVE BILLED 911 CHARGES AND LINES
ON WHICH IT CHOSE TO BILL 911 CHARGES.
In October, 2012, the Districts served three common interrogatories

requesting, respectively, the numbers of residential, commercial, and multiplex


lines BellSouth had in service in each month since January, 2001. See BellSouth
Interrogatory Answers (Ex. A to Motion to Compel), R.189-1, PageID#6412.3
BellSouth claimed, remarkably, that it did not know how many lines it had in
service - that is, how many lines on which it should have billed 911 Charges.
BellSouth said it only maintained monthly records of the number of residential

The Magistrate Judge did not grant the Districts motion to compel line
count information, because of pending dispositive motions. The Magistrate Judge
held that any further ruling would be deferred until completion of the dispositive
motion practice. Order, R.236, PageID#9408-9410.
3

10

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 29

and business lines upon which BellSouth billed an E911 Surcharge and the
amounts collected from those billings, which are the only figures the ECD Law
requires service suppliers to report to ECDs. BellSouth Interrogatory Answer No.
13, R. 189-1, PageID#6426-27.
Although BellSouth refused to provide the numbers of its lines in service,
BellSouths own expert report and other evidence developed by the Districts
showed that there were large differences between the lines that BellSouth had in
service on which the ECD Law required it to bill 911 Charges and the lines on
which it chose to bill 911 Charges. The Districts refer to this difference as the
Gap. BellSouth failed to carry its burden of conclusively refuting this evidence
and showing that there was no genuine issue of material fact concerning the
existence of the Gap. The District Court erred when it failed to acknowledge facts
in the record establishing the Gap, including facts established by BellSouths own
expert; failed to acknowledge that genuine issues of material fact existed
concerning the Gap; and improperly accepted BellSouths conclusory assertions
concerning the Gap, as if the Court were trying disputed facts rather that applying
the standards of summary judgment.

A.

BellSouths own expert acknowledged the large Gap in December


2010 reports.

BellSouth provides the trunk lines that carry 911 calls to the Districts call
centers and provides database services that permit, for example, 911 operators to

11

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 30

know the address from which emergency calls are made. BellSouth bills each
District each month for those lines and services in part based on the number of
residential and commercial lines BellSouth has in service in the District.
Memorandum, R.326, PageID#20817 (referring to BellSouth charges as Tariff
Charges). Before these lawsuits were filed, the Districts discovered BellSouth
was billing the Districts for connecting thousands more lines to the Districts 911
centers than BellSouth was billing 911 Charges. E.g., Hamilton ECD Second
Amended Complaint (Hamilton SAC), R.61, PageID#1486-1487 and Districts
Reply, R.30, PageID#606-607 (citing Stuermer Affidavit, R.31, PageID#625;
Monthly Reports, R.31-3, PageID#673-681; and December 2010 Bill, R.31-4,
PageID#682-933).
This table4 compares the numbers of lines for which BellSouth billed Tariff
Charges, the numbers of lines reported on BellSouths remittances, and the
unremitted lines in two illustrative months - one before and one after BellSouth
implemented changes to its billing system in 2011, shortly before the Districts filed
suit.

The table was included in the Districts memorandum in support of their


motion for partial summary judgment. Districts Motion for Partial Summary
Judgment Memorandum, R.249, PageID#9477 (citing Hitchcock Declaration,
R.271-11, PageID#13959-13961).
4

12

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 31

BellSouth tried to explain this gap as a timing issue. Turner Declaration,


R.258-3, PageID#10682-10687. However, as column (8) of the following table
prepared by BellSouths expert admits, even accounting for timing in the manner
most favorable to BellSouth, BellSouth failed to bill 911 Charges on 32,152 lines
in the counties served by the Districts in the single month of December, 2010.

B.

BellSouths own expert acknowledged that, even under


interpretations most favorable to BellSouth, BellSouth could not
explain the Gap of thousands of lines in every month before the
Districts filed suit.

The District Court erred in concluding that BellSouths expert explained the
Gap, simply accepting as true the experts misleading conclusions and ignoring the
experts report, which showed that even the experts most favorable interpretations
13

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 32

did not explain the large Gap in each month the expert studied before the lead
District filed suit. Memorandum, R.326, PageID#20818
Because it claimed it did not know how many residential, commercial, and
multiplex lines it had in service, BellSouth hired an expert to identify how many
lines it contended that it should have billed 911 Charges. That expert prepared a
report that examined only 11 of the more than 120 months then at issue; only five
(5) of the study months were before BellSouth changed its billing system and the
lead suit was filed, and six (6) study months were after. 5
As the District Court noted, BellSouths report assumes BellSouth had the
better end of . . . interpretive disagreements [about which lines should be billed 911
Charges]. Memorandum, R.326, fn.23, PageID#20819.
The following graph shows the admission of BellSouths expert that in every
month he examined before the first suit was filed, BellSouth failed to bill tens of
thousands of dollars of 911 Charges that, even under the experts most favorable
interpretations, the ECD Law required BellSouth to bill. 6

BellSouth changed its billing system in the spring of 2011, and the lead suit
was filed in November, 2011. The False Claims Act has a 10-year statute of
limitations. Memorandum, R.326, fn.7, PageID#20793. There are now more than
170 months at issue.
6
The graph presents the conclusions of BellSouths expert concerning the
lines that he contends should have been billed 911 Charges and the lines that were
billed 911 Charges in each of the 11 months he studied. Hitchcock Declaration,
11, R.271-11, PageID#13961-13962 & Figure 1, PageID#13973-14083; 2nd

14

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 33

A quick glance at this graph, which reflects conclusions shown in the report
of BellSouths expert, shows the obvious falsity of the experts statements that
BellSouth correctly identified eligible lines 99.4% of the time and that BellSouth
billed and remitted 911 charges on 100.26% of those eligible lines. See
Memorandum, R.326, p.36, PageID#20819 (citing 2nd Suppl. Turner Report, 1115, R.259-1, PageID#10695-10699 & 107-108, R.259-1, PageID#10754-10755).

Suppl. Turner Report, R.259-1, PageID#10736-10737; Exhibit SET 23 to 2nd


Suppl. Turner Report, R.259-2, PageID#13504-13614.

15

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 34

Instead, it shows the BellSouth experts admission that a large Gap existed in every
month he studied before the first suit was filed. Yet, the District Court gave credit
to the experts false statement that the Gap did not exist, rather than
acknowledging that BellSouths expert admitted the large Gap between what
should have been billed and what was billed, showing genuine issues of material
fact.
Not only was it improper for the District Court to assume the role of trier of
fact on a motion for summary judgment, the record shows that the District Court
clearly was incorrect in the conclusions it reached when it assumed that role. The
District Court should have found that a genuine issue of material fact exists
concerning the failure of BellSouth to bill and remit 911 Charges on the lines it
was required to bill under the ECD Law and should have denied BellSouths
motion for summary judgment.
II.

THE DISTRICT COURT ERRED WHEN IT DISMISSED THE


DISTRICTS CAUSE OF ACTION SEEKING TO ENFORCE THE
ECD LAW.

A.

The legislature has recently expressed the clear intent that courts
may recognize the Districts implied cause of action.

Whether an implied right of action is available is a matter of statutory


construction, in which the Court is to seek the legislatures intent concerning
whether a court should recognize an implied cause of action. Brown v. Tenn. Title
Loans, Inc., 328 S.W.3d 850, 855 (Tenn. 2010). Here, the legislature has

16

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 35

expressed the clear intent that an implied right of action should be available to the
Districts by enacting, while the Districts implied cause of action was pending,
Tenn. Code Ann. 1-3-119(c)(4), which states that courts may [r]ecognize a
private right of action commenced by a state or local government entity to collect
any fees owed for a governmental service or to recover such fees from a party that
is obligated to bill and collect fees owed others for a governmental service.7
Moreover, Senator Yager, the author of the amendment adding 119(c)(4), said the
provision was added out of concern that your 911 organizations might lose their,
their right to recover fees for services from a party that might be obligated to pay
those fees, so I think it takes care of it and Im satisfied. Senator Bell further
explained, I do want to publicly thank Senator Kelsey for working with myself,
for working with, especially the State 911 Board and the local counties, to, to
address their concerns. I appreciate the work that hes put into this Bill and also
the amendment to make sure those concerns are taken care of. Senator Kelsey,
the sponsor of the legislation that became 1-3-119, adopted Senator Yagers
explanation: Section 4 is the section from Senator Yagers amendment thats

Tenn. Code Ann. 1-3-119 was adopted after briefing and argument were
completed on the motions to dismiss but before the District Court issued its
opinion. Memorandum, R.38, PageID#993-1024. The District Court cited
Morrison v. City of Bolivar, No. W2011-01874-COA-R9-CV, 2012 WL 2151480
(June 14, 2012), which discussed the Code section at *7, n. 4.

17

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 36

already been described. 8

B.

The District Court improperly applied the standards set forth in


Brown v. Tenn. Title Loans, Inc.

Independent of the legislatures clear expression of intent in 1-3-119, the


District Court should have found that the legislature intended that an implied cause
of action was available by properly applying the three Brown factors.
1.

The District Court should have found that each of the


Districts is an intended beneficiary within the protection of
the statute

The District Court misstated the formulation of the first Brown factor. The
first Brown factor was not whether Plaintiff is the intended beneficiary,9 it is
whether the Plaintiff is an intended beneficiary within the protection of the
statute.10 The three factors listed by Brown originated in the Supreme Courts
opinion in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) and
that Courts formulation of this factor is instructive: First, is the plaintiff one of
the class for whose especial benefit the statute was enacted. 422 U.S. at 78
(emphasis supplied).
The Districts alleged in their Complaints ample facts, which combined with

Tennessee Senate Judiciary Committee meeting February 14, 2012,


discussion of Senate Bill 2140, available at http://tnga.granicus.com/MediaPlayer
.php?view_id=196&clip_id=4898 (transcript included in statutory addendum).
9
Memorandum, R.38, PageID#1004(emphasis supplied).
10
Brown, supra, at 855 (emphasis supplied).

18

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 37

applicable legal authorities, show that each District is an intended beneficiary of


the ECD Law - one of the class for whose benefit the ECD Law was enacted. For
example, the lead plaintiff explained in its Amended Complaint:
101. The District was an intended beneficiary within the
protection of the ECD Law. The 911 Charges that the ECD Law
required Defendant to bill, collect, report, and remit to the District
provided the principal source of funding for the Districts provision of
911 services.
...
104. The existence of a right of action under the ECD Law is
consistent with the ECD Laws underlying purpose of providing a
means for delivery of 911 services to the public. If the ECD Law
cannot be enforced by emergency communications districts, such as
the District, against service suppliers, such as Defendant, who
purposefully or negligently fail to fulfill their obligations under the
ECD Law, no means would exist to ensure the funding of 911 services
as intended by the legislature.
105. Defendants violation of the ECD Law proximately caused
the District to suffer significant injury, including the loss of
significant operational funds to which it was and is entitled.11
In enacting the ECD Law, which authorized the Districts organization,
operation, and funding, the legislature found and declared that the continued
viability of the lifesaving 911 emergency communications service is of the highest
priority for the health and safety of the citizens of Tennessee. Tenn. Code Ann.
11

Hamilton FAC, R.13, PageID#137-138. See also id., 1-4, 7, 14-20 & 2229, PageID#114-121, 110-115, PageID#139-140, & 157-163, PageID#148149. The well-pled allegations of the Districts Complaints must be accepted as
true for purposes of review of the District Courts dismissal of the Districts private
causes of action against BellSouth.

19

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 38

7-86-102(b)(1). The lifesaving 911 emergency communications service is what


the Districts have been organized to provide, using the 911 Charges that BellSouth
has refused to properly bill. The ECD Law contains 29 sections. At least 27 of
those sections address, in whole or in part, the purpose, creation, powers,
leadership, operations, and financing of the Districts.12
The public is, of course, an intended beneficiary of the ECD Law. But, the
public is not the only beneficiary, the Districts clearly are also an intended
beneficiary of that Law, as they are charged with establishing and operating the
lifesaving 911 emergency communications service that provides the publics
benefits.
The District Court asked the wrong question and reached the wrong answer.
It is clear that the Districts are an intended beneficiary of the ECD Law, including
the Laws funding provisions.
2.

The District Court improperly found that the Districts


action to enforce the ECD Law was not consistent with the
legislatures intent.

The second Brown factor is whether there is any indication of legislative


intent, express or implied, to create or deny the private rights of action. Brown,
supra, at 855. In its analysis of this factor, the District Court improperly concluded
12

The other two sections describe the title of the ECD Law, 7-86-101, and
establish a prepaid wireless emergency telephone service charge that was paid to
the Tennessee Emergency Communications Board. 7-86-128.

20

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 39

that the ECD Law provides an alternative express cause of action, improperly
narrowed the ECD Laws grant of a good faith defense to service suppliers, and
misinterpreted a decision that concluded that Alabamas almost identical law
provided 911 districts a private cause of action. The District Court also failed to
acknowledge the legislatures instruction in Tenn. Code Ann. 1-3-119, discussed
above, that Districts may pursue private rights of action for recovery of fees for
governmental services.
a.

The ECD Law does not provide an alternative cause of


action against service users for unbilled 911 Charges.

The District Court incorrectly held, as a basis for finding that the ECD Law
did not provide an implied right of action, that the legislature provided an express
cause of action against service users to collect unbilled 911 Charges, so it must not
have intended to permit an implied cause of action against service suppliers to
collect unbilled 911 Charges. Tenn. Code Ann. 7-86-108(c) says a billed user
shall be liable for 911 Charges (emphasis supplied). Section 110(c) only
authorizes legal action against a service user who fails to pay billed 911 Charges;
no such action could be maintained against an unbilled user, because that user
would not yet be liable under 108(c) for the 911 Charges. The limited right of
action contained in 110(c) to recover billed 911 Charges cannot indicate that the
legislature did not intend the Districts to have a right of action against service
suppliers such as BellSouth to recover unbilled 911 Charges that the ECD Law

21

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 40

required the service suppliers to bill.


b.

The good faith defense demonstrates legislative intent to


provide private causes of action to enforce the Law.

The District Court incorrectly concluded that the good faith defense in
Tenn. Code Ann. 7-86-110(e) was only intended to apply to a counterclaim
brought by a service user that had been sued by a service supplier to collect 911
Charges, as permitted in 110(c). The District Courts interpretation ignored the
breadth of the statutory defense. The legislature did not limit the defense just to
counterclaims by service users in suits brought under 110(c), it provided it as to
any legal action or claim . . . arising in connection with this part. Part is all
of Part 86 of Title 7, not just 110(c). The legislature must have intended that
private cause of actions could be brought to enforce the ECD Law, or it would not
have provided a good faith defense to any legal action or claim . . . arising in
connection with the ECD Law. This is precisely what the District Court for the
Northern District of Alabama held, when interpreting a much more limited good
faith defense under the Alabama emergency communications statute. See Madison
County Communications Dist. v. BellSouth Telecomms., Inc., No. 5:06-cv-01786CLS, 2009 WL 9087783, at *8 (N.D. Ala. March 31, 2009).
c.

Districts are municipalities that have the right to sue


just as Alabama communications districts.

The District Court improperly distinguished Madison County, supra, which

22

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 41

held that the similar Alabama 911 law13 created a private right of action for
communications districts. The District Court noted that the Alabama legislature
granted Alabama communications districts the right to sue, but that there was not a
similar express grant of the right to sue in the Tennessee ECD Law. The Court
overlooked the fact that the Tennessee legislature did grant the Districts the right to
sue by organizing each District as a municipality or public corporation in
perpetuity. Tenn. Code Ann. 7-86-106. For more than 100 years, Tennessee
courts have held that municipal corporations have the inherent right to sue. Board
of Park Comrs v. City of Nashville, 134 Tenn. 612, 185 S.W. 694, 700 (1916)
(The power to sue is one of the incidental rights of a corporation whether
mentioned in the charter or not.).14 Subsequent to the decision in Madison
County, supra, the Alabama Supreme Court agreed that an implied right of action
is available to Alabama districts to enforce the very similar Alabama 911 law. See
Century Tel of Alabama, LLC v. Dothan/Houston County Communications
District, ____ So.3d ___, 2015 WL 5725111 (Ala. Sept. 30, 2015). The District
Court erred in failing to follow the Alabama Supreme Courts interpretation of the

13

See Districts Memorandum, R.23, PageID#317(comparison of key


provisions of Alabama and Tennessee emergency communications laws).
14
Of course, [c]ourts must presume that a legislative body . . . knew the state
of the law at the time it passed the legislation. Owens v. State, 908 S.W.2d 923,
926 (Tenn.1995).

23

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 42

very similar Alabama 911 law.

C.

The District Court erred in holding that an implied cause of


action was not consistent with the purposes of the ECD Law.

The District Court misapplied the third Brown factor, whether implying a
cause of action is consistent with the underlying purposes of the legislation.
Brown, supra, 328 S.W.3d at 855. The District Court found that the Districts may
need a mechanism for ensuring service suppliers properly bill, collect, and remit
911 charges. Memorandum, R.38, PageID#1007. But, the District Court
improperly denied the Districts the opportunity to pursue an implied cause of
action to ensure BellSouths compliance, because the ECD Law did not include an
express cause of action: [T]he legislatures failure to include this right of action
in the statute indicates the ECD Law was not intended to serve that purpose.
Instead, ECDs should seek relief through other available remedies as [they] ha[ve]
done in this very case. Id.
The District Court was also incorrect in its statement, without citation, that
the primary purpose of the statute is to establish a uniform emergency number for
the public. Id. at PageID#1006. To the contrary, the clear purpose of the ECD
Law was to authorize establishment, operation, and funding of the Districts to
deliver lifesaving 911 emergency communications service. See, e.g., Tenn.
Code Ann. 7-86-102(b)(1). The number 911 was declared to be the primary
emergency telephone number in Tenn. Code Ann. 7-86-102(a). The remainder of

24

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 43

Section 102 and 26 of the other 28 sections of Part 86 address the Districts and the
other elements of the system needed to deliver lifesaving 911 emergency
communications service. As the District Court acknowledged, the Districts need
a mechanism for ensuring service suppliers properly bill, collect, and remit 911
charges Memorandum, R.7, PageID#247.
In evaluating whether an implied cause of action was consistent with the
purposes of the ECD Law, the District Court also failed to give effect to the
legislatures instruction in Tenn. Code Ann. 1-3-119, discussed above, that courts
may recognize a private right of action by governmental entities such as the
Districts to collect fees owed for a government service or to recover fees from a
party that is obligated to bill and collect such fees.
For these reasons, the District Court should have recognized an implied right
of action for the Districts to enforce the ECD Law.
III.

THE DISTRICT COURT ERRED WHEN IT FAILED TO FIND


THAT BELLSOUTH OWED THE DISTRICTS FIDUCIARY
DUTIES.
The Districts were authorized by Tenn. Code Ann. 7-86-108(a)(1)(A) to

levy an emergency telephone service charge in an amount not to exceed sixty-five


cents (65) per month for residence-classification service users, and not to exceed
two dollars ($2.00) per month for business-classification service users, to be used
to fund the 911 emergency telephone service. The Districts also were authorized

25

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 44

to specify the date on which the 911 service was to begin and the date on which
the service supplier will begin to bill service users for such service. Tenn. Code
Ann. 7-86-108(e)(1).
No referendum or approval by any other body was required for this initial
levy. After making the initial levy of the 911 Charge, each District was required
only to give a 30-day notice of the initial levy to the legislative body that created
the District and to request a hearing before the body. The legislative body could
have made non-binding recommendations concerning the initial levy, but was not
given the authority to prevent it from becoming effective. Tenn. Code Ann. 7-86108(b). The legislative body could have changed only the amount of the initial
levy by a two-thirds vote, but could not halt it. 7-86-108(c). There is no evidence
in the record that this ever occurred for any of the Districts.
It was by this initial levy that the Districts exercised control over BellSouth
by requiring it to act as their agent to bill and collect the 911 Charge in the amount
that they directed. It was by their action that the Districts exercised control over
BellSouth by specifying the date on which BellSouth was required to begin billing
the initial 911 Charge levy to BellSouths service users.
Under the ECD Law, Districts are not authorized to bill and collect 911
Charges directly from service usersthis duty belongs to the service suppliers.
See Tenn. Code Ann. 7-86-110. BellSouth, and not the Districts, has the sole and

26

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 45

exclusive possession of information relating to its customers. Only BellSouth


knows the identity of its customers and the number and types of lines it has in
service that are subject to a 911 Charge.15 Because BellSouth exclusively
possesses both the ability and information necessary to accurately assess and remit
911 Charges, the Districts must rely on BellSouth to act on their behalves.16
As the District Court recognized, the Tennessee Supreme Court has held that
[i]n its broadest sense, the concept of agency includes every relation in which
one person acts for or represents another. White v. Revco Disc. Drug Ctr., Inc.,
33 S.W.3d 713, 723 (Tenn. 2000). The Supreme Court in White held:
An agency relationship does not require an explicit agreement,
contract, or understanding between the parties, and when the facts
establish the existence of an agency relationship, it will be found to
exist whether the parties intended to create one or not. Whether an
agency exists is a question of fact under the circumstances of the
particular case; and whether an agency has been created is to be
determined by the relation of the parties as they in fact exist under
their agreement or acts.
15

See Shaffer Depo., R.271-17, PageID#14233(They got the records. I had no


records of what theywho their customers were. . . .); PageID#14234(Like right
now . . . I couldnt tell you many lines this company has got.); Stuermer Depo.,
R.271-18, PageID#14245([W]e didnt have access to the information to determine
what was going on. We werewe had to trust the vendors to give us that
information and we worked off that information.).
16
See Deford Depo., R.271-19, PageID#14255-14256 ([T]he only
information we would have been able to obtain would have been through Bellsouth
AT&T employees. And they didnt discuss this type of thing or they wont discuss
it with you.); Coker Depo., R.271-20, PageID#14263(When people have called
and tried to get information, I do not believe theyve got any answers.).

27

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 46

The District Court recognized that [T]he analysis hinges on the


[principals] right to control the agents actions and, ultimately the fact of actual
control over the agent. Memorandum, R.326, PageID#20808.
As the Supreme Court explained, the law did not strictly require that the
principal or master should expressly direct or have knowledge of the act done; it is
enough that the servant or agent was acting in the business of his superior. White,
supra, at 724.
In evaluating whether the Districts exercised control over BellSouths
obligation to bill 911 Charges so as to make BellSouth their agent, the District
Court improperly focused on the scope of the Districts authority to unilaterally
mandate increases of the 911 Charge after their initial levy. Whether or not the
initial levy was increased is totally irrelevant to whether the Districts exercised
control over BellSouth by requiring it, by the initial levy, to act as the Districts
agent in the billing and collection of the 911 Charge. If every increase of the
initial levies of every District had been limited or reversed, BellSouth still would
have been acting as the Districts agent for billing and collection of 911 Charges
equal to the Districts initial levies, starting on the dates the Districts specified.
Although not relevant to the question of whether the Districts exercised
control over BellSouths obligation to bill and collect a 911 Charge in at least the
amount of the initial levy, the District Court misconstrued the ECD Laws

28

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 47

provisions governing the authority of the Districts to increase the initial levies.
The ECD Law does not require a referendum each time a District determines that
an increase in the 911 Charge is necessary. A Districts board may choose to put
the increase to a referendum vote, but, alternatively may simply notify the
legislative body and request a hearing before it to explain the justification for the
increase. See Tenn. Code Ann. 7-86-108(a)(2)(A) (the board may vote to
submit the increase to a referendum) and 7-86-108(b) (alternative notification of
legislative body of increase shall not apply when increase has been approved by
referendum).
The Tennessee Supreme Court instructed that whether an agency exists is a
question of fact under the circumstances of the particular case. White, supra, at
723. The facts clearly show that each District exercised control over BellSouths
obligation to bill and collect the 911 Charge in the amount of its initial levy and
controlled the dates on which BellSouth was obligated to begin billing its service
users. BellSouth was the Districts agent for the billing, collection, and remittance
of 911 Charges. As the Districts agent, BellSouth owed the Districts a fiduciary
duty to accurately bill, collect, and remit all 911 Charges to the Districts as
required by the ECD Law.
Accordingly, the District Court erred in refusing to grant the Districts
summary judgment that BellSouth owed them a fiduciary duty. For the same

29

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 48

reasons, the District Courts grant of summary judgment to BellSouth on the


fiduciary duty issue was improper and should be reversed.
IV.

THE DISTRICT COURT ERRED IN GRANTING SUMMARY


JUDGMENT DISMISSING THE DISTRICTS TENNESSEE FALSE
CLAIMS ACT CLAIMS.
The TFCA imposes liability where a defendant [k]nowingly makes, uses, or

causes to be made or used a false record or statement to conceal, avoid, or decrease


an obligation to pay or transmit money or property to the state or to any political
subdivision. Tenn. Code Ann. 4-18-103(a)(7). One of the elements is objective
falsity of the statement and another is that the defendant knowingly made the false
statement. The TFCA defines the knowledge element and specifies that no intent
to defraud is required.
Knowing and knowingly mean that a person, with respect to
information, does any of the following:
(A)

Has actual knowledge of the information;

(B)

Acts in deliberate ignorance of the truth or falsity of the


information; or

(C)

Acts in reckless disregard of the truth or falsity of the


information.

Proof of specific intent to defraud is not required;


Tenn. Code Ann. 4-18-102(2).
The District Court improperly engrafted a new standard onto the TFCA,
holding that the Districts must not only show that BellSouth acted knowingly, as

30

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 49

defined in the statute, but must also prove that BellSouth acted in bad faith. The
District Court held, at the summary judgment stage, that the Districts evidence
must at least show that BellSouths reading [of which types of lines must be billed
911 Charges] is so unreasonable that the arguments could not have been made in
good faith and thus no legitimate grounds for disagreement existed.
Memorandum, R.326, PageID#20825.
The District Courts standard contradicts the plain words of the TFCA, and
is inconsistent with interpretations by federal courts placed upon the same terms in
the federal False Claims Act. 17 The proper standard for establishing knowing
falsity of a report when there is a putative dispute over an applicable legal
requirement is whether the defendants interpretation is reasonable. [T]he
government can prove falsity if it establishes that that defendants interpretation of
a regulation or contract provision is unreasonable. U.S. ex rel. Augustine v.
Century Health Servs., Inc., 136 F.Supp.2d 876, 890 (M.D. Tenn. 2000).
Knowledge may be established if a defendant acts in reckless disregard of
the truth, such as where it fails to make an inquiry of the truth that is reasonable

17

The courts may look to interpretations of analogous provisions of the federal


False Claims Act to determine the proper interpretation of the TFCA. State ex rel.
Landenberger v. Project Return, Inc., No. M200702859COAR3CV, 2009 WL
637122, at *4 (Tenn. Ct. App. Mar. 11, 2009).

31

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 50

and prudent under the circumstances. The provision is meant to target that
defendant who has buried his head in the sand and failed to make some inquiry
into the claims validity. United States ex rel. Williams v. Renal Care Group,
Inc., 696 F.3d 518, 530 (6th Cir. 2012) (quoting S. Rep. 99-345, at 21, 1986
U.S.C.C.A.N. 5266, 5285).
Where authoritative interpretations existed for some line types, BellSouth
could not assert that the ECD Law was ambiguous, justifying an alternative
interpretation. As the Court in Minnesota Assn of Nurse Anesthetists v. Allina
Health Sys. Corp., 276 F.3d 1032, 1053 (8th Cir. 2002) explained,
If the [FCA plaintiff] shows the defendants certified compliance with
the regulation knowing that the HCFA interpreted the regulations in a
certain way and that their actions did not satisfy the requirements of
the regulation as the HCFA interpreted it, any possible ambiguity of
the regulations is water under the bridge.
Neither the authority cited by the District Court or any other authority
supports application of the extremely heightened standard imposed by the District
Court.

A.

BellSouths Reports to the Districts Were False.

Each month prior to July 2010, BellSouth filed with each District a report
stating [i]n accordance with the Tennessee Legislature, AT&T Tennessee has
billed and collected Emergency Telephone Surcharges as stated below. Each
reported the Lines Billed separately for residential and business lines. Each

32

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 51

showed a Billed Amount equal to the number of Lines Billed multiplied by


applicable rates. See, e.g., June 2010 Reports, R.285-8, PageID#17783-17791.
There is no reasonable interpretation of the opening sentence of each months
report other than that BellSouth had done what the ECD Law required it billed
and collected 911 Charges for all lines that it supplied to its subscribers in each
District, subject only to the 100-line cap per user per location. BellSouth
confirmed this interpretation in a Rule 30(b)(6) deposition in 2007 in the Madison
County case challenging BellSouths failure to properly bill 911 Charges. In that
deposition, BellSouths corporate deponent confirmed that the phrase [i]n
accordance with the Alabama Legislature, in a BellSouth form otherwise identical
to the Tennessee form, meant that BellSouth was billing the 911 Charge according
to the terms of Alabama law. McNorton Depo., R.285-2, PageID#17562.
BellSouth contradicted its own 30(b)(6) representative in this litigation.18
Beginning July 2010, BellSouth used another form. Each report after that
date contained a table listing the residential and commercial Gross Units Less:
Exempt Units to produce Units Subject to Tax. December 2010 Reports,
R.285-9, PageID#17792-17801. BellSouth never listed any Exempt Units, thus
18

The Districts argued that BellSouth should be estopped by oath from taking
a different position and timely submitted Rule 56(c)(2) objections to BellSouths
changed testimony. Objections, R.280, PageID#16735-17174. The District Court
declined to reach the issue because it conclude[d] that the Districts have not met
their burden . . . . Memorandum, R.326, fn.24, PageID#20820-20821.

33

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 52

asserting that all of the Gross Units were Units Subject to Tax. Memorandum,
R.326, fn.19, PageID#20817.19
The District Court found that BellSouth did not list all the lines in service,
but only those it billed for 911 charges. Id.
The District Court avoided expressly holding that the BellSouth reports were
false or, at the very least, created an issue on falsity for the jury20 by collapsing
into one analysis the issue of objective falsity of the reports with the issue of
BellSouths knowledge, to be measured by the District Courts new, heightened
standard. Memorandum, R.326, PageID#20824. The District conflated the two
issues because it accepted BellSouths claim that all of the thousands of lines in the
Gap between BellSouths total lines and the lines on which it billed 911 Charges
were lines on which BellSouth asserted an interpretive disagreement about the
ECD Laws requirement that it bill 911 Charges. As discussed below, BellSouths
contention was false, and the District Court fundamentally erred in accepting it as
true.
19

There were similar false statements contained in annual reports that


BellSouth submitted to the Districts pursuant to Tenn. Code. Ann. 7-86-110(d).
20
At a minimum, the intended meaning of BellSouths reports is a question of
fact for the jury to decide. See, e.g., Arizona Laborers, Teamsters & Cement
Masons Local 395 Health & Welfare Trust Fund v. Conquer Cartage Co., 753
F.2d 1512 (9th Cir. 1985) (where contrary inferences were possible as to the intent
of the meaning of a collective bargaining agreement, an issue of material fact
existed for which summary judgment was inappropriate).

34

Case: 16-5149

B.

Document: 17

Filed: 04/11/2016

Page: 53

BellSouth Has Asserted No Interpretive Dispute as to Many Lines


in the Gap.

BellSouths expert tried to prove that BellSouth had disputes about whether
the 911 Charges applied to the lines in the Gap. Although he tried to eliminate the
Gap with a report [that] assumes BellSouth had the better end of the . . .
interpretive disagreements,21 BellSouths expert reported that there were tens of
thousands of lines in each month he studied before the first suit was filed that were
not billed 911 Charges. See discussion of the Gap in Section I, supra.
The ECD Law requires that 911 Charges shall have uniform application
and shall be imposed throughout the entire district to the greatest extent possible in
conformity with the availability of such service within the district. Tenn. Code
Ann. 7-86-108(a)(1)(A). BellSouth has admitted that it is unaware of any
exemption in the ECD Law from the 911 Charge. BellSouth Answer to
Interrogatory 9, R.271-41, PageID#14442-14443.
Even though BellSouth has claimed otherwise, it also certainly knew how
many lines it had in service in those months. Much of BellSouths business is to
sell and receive revenue from use of its telephone lines. BellSouths parent
represented to its investors how many lines its subsidiaries, including BellSouth,
provided for its subscribers use during periods covered by reports AT&T filed

21

Memorandum, R.326, fn.23, PageID#20819.

35

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 54

with the Securities and Exchange Commission. See, e.g., 2004 SEC Report
Excerpt, R.299-17, PageID#20286, genuineness admitted in Requests for
Admission Response No.4, R.299-18, PageID#20293.
The record shows (i) a law that requires all lines to be billed 911 Charges;
(ii) BellSouths admissions that there are no exemptions; (iii) BellSouths certain
knowledge of how many lines it had; (iv) the effort of BellSouths expert to
identify interpretive disputes as to all lines BellSouth did not bill 911 Charges; and
(v) the experts admission that there still were tens of thousands of lines BellSouth
did not bill 911 Charges. The inference to be drawn from that record is that
BellSouths reports were false, and BellSouth knew it.
The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

C.

The Districts claims are not limited only to those lines as to which
BellSouth claims to have interpretive disputes.

The Districts complaints asserted that BellSouth violated the TFCA by


failing to bill 911 Charges on all business and residential lines capable of reaching
the Districts 911 Centers, up to 100 lines per user per location. E.g. Hamilton
SAC, 102-111, R.61, PageID#1501-1503. The Districts claims are not limited
to those lines as to which BellSouth now claims that it has an interpretive dispute
whether 911 Charges are to be billed. Neither are the Districts claims limited to

36

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 55

those types of lines for which the Districts sought a declaration that 911 Charges
apply.

D.

BellSouth failed to properly bill 911 Charges on lines as to which


BellSouth admits 911 Charges should have been billed.

The Districts presented evidence showing that BellSouth intentionally


waived or reduced 911 Charges on lines which should have been billed. The
District Court erred in failing to give effect to the Districts evidence, which
included:
Zero-rated USOCs: BellSouth sold lines at a negotiated price by creating a
special code, a special assembly USOC. These special assembly USOCs were
zero-rated, meaning that BellSouths billing system would bill no 911 Charges
on them. K.Reed Depo., R.299-14, PageID#20214-20215. BellSouth used special
assembly USOCs to waive 911 Charges for the lines billed on Hamilton County
account 423-M37-1965. Hamilton SAC, R.61, 52, PageID#1491. No 911
Charges were billed, even though they should have been. K.Reed Dep., R.299-14,
PageID#20216-20218. BellSouth waived 911 Charges on other contracts,
including contracts with the State of Tennessee. 04/2009 Email, R.285-36,
PageID#18331-18335. BellSouth was aware that its sales force was unlawfully
waiving 911 Charges by using special assembly USOCs and made some effort to
control this abuse. 09/2009 Email, R.299-13, PageID#20197-20198.
Hamilton County Transaction: In 2011, BellSouth stated in a bid to

37

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 56

Hamilton County that the 911 Charge was $2.00/line. The 911 Charge should have
been $3.00/line, but by promising to charge the lower rate, BellSouth underbid its
next competitor by $0.69/line. BellSouth RFP Response, R.271-12,
PageID#14179. BellSouth claimed that this was a mistake and that it actually
billed the subscriber the required $3.00 rate. It did not. BellSouth billed the 911
Charge at $2.54 and $2.63 per line on two accounts covered under the bid instead
of the required $3.00 charge. S.Holcomb Dep., R.271-14, PageID#14189-14190,
14191-14192. The District Court erred by unquestionably accepting BellSouths
false assertion that it billed the correct 911 Charge and by ignoring the Districts
contrary evidence. Memorandum, R.326, PageID#20820.
These circumstances are, undoubtedly, just some of many instances of
improper 911 Charge billing that would have been discovered if BellSouth had
been compelled to answer the Districts interrogatories. However, based on these
confirmed examples, the District Court should have found that issues of fact
existed concerning BellSouths choice not to bill 911 Charges on lines because of
special arrangements, which BellSouth knew rendered its monthly reports false.

E.

BellSouth had knowledge of the falsity of its reports because its


interpretations of the ECD Law were not reasonable.

The District Court accepted BellSouths argument that its expert had
explained that the Gap consisted only of five types of lines on which BellSouth
disputed its obligation under the ECD Law to bill 911 Charges. As explained in

38

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 57

Section I, supra, even under the favorable assumptions applied by BellSouths


expert, the Gap consisted of many more lines than the types identified by
BellSouth. BellSouths interpretations of the ECD Laws requirements were not
reasonable as to each of the types of lines to which this appeal applies,22 and
BellSouth knowingly filed reports each month, and in many years, falsely stating
that it had billed 911 Charges as required by the ECD Law.
1.

The 100-Line Cap

Under the ECD Law, the 911 Charge may not be imposed upon more than
one hundred (100) exchange access facilities per service user per location. Tenn.
Code Ann. 7-86-108(a)(1). The statute is very clear, and its meaning is obvious.
If there were more than 100 lines at a specific address location in the name of a
single customer, the lines greater than 100 were not billed 911 Charges.
Application of the cap per address was easily accomplished, as BellSouths billing
system identifies the name of each subscriber and the address at which service is
supplied. See 09/2013 email, R.271-44, PageID#14487. Instead of applying the
cap as the ECD Law specified, BellSouth substituted per county or per city for
the ECD Laws per location requirement, exempting from 911 Charges more
than 100 lines it sold to a subscriber at locations anywhere within a taxing
22

As noted, supra, the Districts are not appealing the District Courts ruling on
UNE-P lines and therefore do not include discussion of BellSouths interpretation
as to those lines.

39

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 58

jurisdiction rather than a single location. Thus, if a hospital had multiple locations
in a county, BellSouth counted all of its lines at all of the locations and billed for
no more than 100 lines. See Exhibit 50 (Greenholtz Declaration), 10-17(filed
under seal at R.250, PageID#9507-9509).
In support of its position, Bellsouth pointed to an answer given years later
by staff of the Tennessee Advisory Commission on Intergovernmental Relations
(TACIR) to a question posed by TACIR commissioners at a previous
meeting:[w]hat is the cap on landline fees for institutions with multiple lines?
The staff answer suggested that the 100-line cap was ambiguous, but, contrary to
BellSouths and the District Courts characterization, the memorandum does not
reflect any observation, position, or action of TACIR. See TACIR Report, R.2831, PageID#17296; Memorandum, R.326, PageID#20826.
The record contains no evidence that, when it made its change, BellSouth
relied on any authority supporting its interpretation or sought clarification on the
issue from the TECB, which is authorized to adopt policies and rules interpreting
the ECD Law. See Tenn. Code Ann. 7-86-306. Indeed, the record contains no
evidence that BellSouth disclosed its change to TECB or anyone else.
A defendant acts in reckless disregard of the truth, and therefore is
charged with knowledge, if it fails to make an inquiry of the truth that is
reasonable and prudent under the circumstances. The provision is meant to

40

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 59

target that defendant who has buried his head in the sand and failed to make some
inquiry into the claims validity. Williams, supra, 696 F.3d at 530.
If the District Court was to give the TACIR staff comment any effect, it
should have held that the 2005 staff comment could have had no impact on
BellSouths earlier decision to reduce the number of 911 Charges by rewriting the
ECD Laws 100-line cap. The District Courts duty was to give effect to the
legislatures intent clearly set forth in the ECD Law, not to rewrite the law or to
approve BellSouths rewrite of the law.
The District Court erred when it failed to hold that BellSouths rewrite of the
ECD Law was not reasonable. The District Court further erred when it applied its
new standard, requiring the Districts to prove, at the summary judgment stage, that
BellSouth not only acted knowingly, but acted in bad faith. A reasonable jury
could conclude from this evidence that BellSouth did not act reasonably in
rewriting the 100-line cap and, at a minimum, acted in reckless disregard of the
falsity of its monthly and annual reports.
2.

Centrex Station Lines

As the District Court explained, a Centrex system is a shared telephone


service system used to provide service to multiple users in the same location.
Centrex services are delivered using station lines that connect subscriber stations
to a BellSouth central office. At the central office, the central office switching

41

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 60

equipment permits calls from station lines to be made to other telephones,


including the Districts 911 centers. The central office switching is programmed
with control software referred to as network access registers or NARs. See
Memorandum, R.326, PageID#20826-20827.
The plain language of the ECD Law required a 911 Charge be assessed on
each station line, as BellSouth recognized until November 2000. But then,
BellSouth unilaterally decided it would stop billing 911 Charges on Centrex station
lines and instead assess 911 Charges on the fewer number of software settings, or
NARs, in its central office switch. 01/2001 Email, R.271-4, PageID#13902.
The ECD Law provides that a 911 Charge should be assessed on all
exchange access facilities, which are defined as all lines, provided by the
service supplier for the provision of exchange telephone service, as defined in
[BellSouths] general subscriber services tariff. Tenn. Code Ann. 7-86103(7)(emphasis added). Under BellSouths Tariff, a Line is referred to as an
Exchange Line, and the definition of Exchange Line expressly includes a
Centrex Station Line. BellSouth Tariff, R.271-34, PageID#14369 (Line
defined as Exchange Line) and PageID#14363-14364(Exchange Line includes
Centrex Station Line).
Richard Mosley, BellSouths Regulatory Manager and subject matter expert
on 911, found in 2006 that BellSouths new interpretation was wrong and that a

42

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 61

911 Charge should be assessed on each station line: Since a line connection
charge is assessed for the connection of an exchange access line, a corresponding
911 surcharge should be assessed per station line for Centrex service. 11/2006
Email, R.271-37, PageID#14389(emphasis added). BellSouth rejected the
conclusion of its own expert Regulatory Manager. BellSouths new
interpretation directly contradicted the plain language of the ECD Law, as its
Regulatory Manager found. BellSouths new interpretation was clearly
unreasonable.
It is likely that BellSouths unreasonable interpretation was motivated by
BellSouths competitive interests. The question to Mr. Mosley arose because of a
complaint by a competitor, Aeneas, that its customer Madison County was seeing
higher bills for Centrex service from Aeneas than it had from BellSouth, because
of Bell Souths[sic] under billing Madison Countys 911 charges. Id., at
PageID#14390-14391 (Harlan 8/15/06 email to Nichols). Aeneas had to reduce its
telephone charges to make up for BellSouths failure to properly bill 911 Charges.
Id.
BellSouths own Regulatory Manager concluded that 911 Charges should be
billed on Centrex station lines, not on NARs, showing that BellSouths changed
interpretation was not reasonable. In addition, the District Court should have held
that BellSouths application for 16 years of its original interpretation that station

43

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 62

lines were to be billed 911 Charges, also supported a strong inference that
BellSouth knew that its revised interpretation was not reasonable.
The District Court, without any analysis and disregarding contrary evidence
in the record and inferences to be drawn therefrom, held that the Districts had not
met the District Courts new, higher standard that required the Districts to prove
that BellSouth not only acted knowingly, but acted in bad faith. A reasonable jury
certainly could conclude from this evidence that BellSouth did not act reasonably
in interpreting the ECD Law in the manner it did with respect to Centrex service
and that it knowingly filed false monthly and annual reports.
3.

Federal Government Lines

BellSouth argued that it did not bill a 911 Charge on lines supplied to its
federal government subscribers because they considered it a tax and refused to pay
it. The record shows that federal agencies do, in fact, pay 911 Charges and
contains no evidence that any federal agency ever told BellSouth that it refused to
pay them. BellSouths position is contrary to the plain language of the ECD Law
characterizing the 911 Charges as fees instead of taxes and contradicts an opinion
of the Tennessee Attorney General.
The ECD Law provided that the 911 Charges shall not be construed as
taxes and shall be payable by all service users, whether private or public, profit
making, or not-for-profit, including governmental entities. Tenn. Code Ann. 7-

44

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 63

86-106(emphasis added). In 1995, the Tennessee Attorney General (TNAG)


concluded that the 911 Charge is a service fee and is therefore applicable to federal
agencies. See Tenn. Op. Atty. Gen., No. U95-013 (Mar. 3, 1995), R.271-42,
PageID#14457-14461.
BellSouth claimed that it relied upon a 1988 opinion of the Comptroller
General of the United States that 911 Charges are taxes, but there is no evidence in
the record to support BellSouths claim. The District Court accepted BellSouths
argument that the 1995 TNAG opinion is not binding even within Tennessee[,]
apparently to support the premise that BellSouth was reasonably justified in failing
to follow it. See Memorandum, R.326, PageID#20830. Of course, the 1988
Comptroller General opinion is also not binding.
The District Court failed to acknowledge evidence in the record showing
BellSouths interpretation is unreasonable. BellSouth failed to produce a single
communication from any federal subscriber stating it refused to pay the 911
Charge. BellSouths Tax Director had never seen any such communication and
was not aware of anyone else at BellSouth that had. L.Fisher Depo., R.271-43,
PageID# 14464-14467. BellSouths billing records confirm that it bills and remits
911 Charges for federal subscriber accounts, including FBI and USDA accounts.
See Exhibit 47 (Greenholtz Declaration), 3-8 (filed under seal at R.250,
PageID#9507-9509. And, BellSouth asserted in its internal documents that that

45

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 64

911 Charges are payable by federal agencies in Tennessee. See Exhibit 134
(Tennessee excerpt from AT&T Exemption Job Aid showing that Federal
Government lines are not Eligible for Exemption), at 1 (filed under seal at
R.250, PageID#9507-9509).
Although a BellSouth witness claimed that BellSouths legal department
ruled in 1998 (10 years after the 1988 Comptroller opinion) that the 911 Charge is
a tax not applicable to federal lines, BellSouth could not produce a copy of the
legal opinion, could not say whether a copy exists, and professes to no longer have
knowledge of the underlying basis of the opinion, let alone whether the opinion
relied on the Comptrollers opinion. See K.Reed Depo., R.299-14, PageID#2021020211. BellSouths Tax Director failed to identify the Comptrollers opinion when
asked to identify the basis for her understanding that the federal government
considers the charge to be a tax. See L.Fisher Depo., R.299-3, PageID#20336.
BellSouth has not produced any evidence that it ever sought clarification on
the issue from the TECB, and it deliberately ignored the guidance given by the
TNAG.
Even if basic facts are not disputed, summary judgment may be
inappropriate when contradictory inferences may be drawn from them. United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962); E.E.O.C. v. United Association
of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189,

46

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 65

427 F.2d 1091, 1093 (6th Cir. 1970). Viewing the evidence in the record and all
reasonable inferences drawn therefrom in the Districts favor, the District Court
could not properly hold that BellSouth conclusively established the absence of any
genuine issue of fact regarding whether BellSouth acted reasonably in exempting
Federal Lines.
The District Court erred when it failed to hold that BellSouths refusal to bill
911 Charges on some of its federal subscribers was not reasonable. The District
Court further erred when it applied its new standard, requiring the Districts to
prove, at the summary judgment stage, that BellSouth not only acted knowingly,
but acted in bad faith. A reasonable jury could conclude from the evidence and
inferences to be drawn therefrom that BellSouth did not act reasonably in refusing
to bill 911 Charges on some of its federal subscribers and knew, or at a minimum
acted in reckless disregard, of the falsity of its monthly and annual reports.
4.

Mutliplex Lines

Digital multiplexing technology permits BellSouth to offer multiplex


telephone lines23 that are configured to carry multiple voice and data channels over
a single physical circuit. Each channel within a multiplex circuit can be assigned a
unique phone number and can access 911 service. Each line provided using
multiplex circuits (multiplex line) replaces a single circuit telephone line that
23

Also referred to as Integrated Services Digital Network (ISDN) lines.

47

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 66

also can be used to call 911. See, e.g., Answer to Hamilton SAC, R.66), 35,
R.66, PageID#1591-1592.
There are 3 primary multiplex ISDN protocols: Primary Rate ISDN (PRI),
Basic Rate ISDN (BRI), and T-1 (also known as DS1) circuits. PRI circuits can
be configured to provide up to 23 voice channels; BRI circuits, up to 2 voice
channels; and T-1 circuits, up to 24 voice channels. For billing purposes,
BellSouth knows whether channels have been configured as voice channels. See
62 Fed. Reg. 31,885, 111; Tenn. Op. Att. Gen. 07-38 at 3, R.271-8,
PageID#13923.
The chronology of BellSouths years-long refusal to bill 911 Charges on
multiplex lines shows that its interpretation was unreasonable and that it knew that
its monthly and annual reports to the Districts were false:

Since 1997, BellSouth billed 911 Charges on only five of the 23 voice

channels per PRI multiplex circuit. BellSouth claimed that it chose to bill five
channels because of a completely separate FCC policy that permitted it to charge
(and keep for itself) a federally-authorized user line charge on up to five channels
provided by a PRI multiplex circuit. Madison County, supra; see also Howorth
Letter, R.271-7, PageID#13920.

BellSouth always billed 911 Charges on only one of the 24 channels

on T-1 multiplex circuits configured to carry voice channels. Id. It continues to do

48

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 67

so. BellSouths Business Requirements Package (unsealed), R.253, PageID#95219522.

In 2003, the staff of TECB wrote phone suppliers, including

BellSouth, telling them that each line provided using multiplex circuits was to be
billed a 911 Charge. Sutton Declaration, 13 and Exhibit C, R.258-3,
PageID#10625, 10636.

On July 16, 2004, the TECB adopted Policy 23, which explained that

the ECD Law required all telephone suppliers to bill a 911 Charge on each line in
T1 and PRI circuits that can transmit a telephone call. Policy No. 23, R.271-6,
PageID#13918.

In 2004, BellSouth had the right to challenge Policy 23 within 60 days

of the TECBs adoption of it by initiating an administrative action. Tenn. Code


Ann. 7-86-306(2014). BellSouth did not do so.

In 2005, BellSouth filed sworn testimony with the Tennessee

Regulatory Authority asserting that each voice channel supplied by a multiplex


ISDN circuit was a separate business line. Pre-Filed Testimony of P.Tipton for
BellSouth, R.271-46, pp.14-15, PageID#14523-14524.

In 2006, BellSouth responded to an inquiry by the TECB with a letter

stating that BellSouth disagreed with and would not follow Policy 23. BellSouth
said it would continue to bill five 911 Charges on the 23 voice lines provided by

49

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 68

PRI multiplex circuits and only one 911 Charge on the 24 voice lines that could be
provided by a T1 multiplex circuit. Howorth Letter, R.271-7, PageID#1391913920.

In 2006, the Madison County Communications District sued

BellSouth seeking recovery for BellSouths failure to bill 911 charges on all
multiplex lines. Madison County, supra.

In 2007, the TNAG issued Tenn.Op.Atty.Gen. 07-38 (March 28,

2007), 2007 WL 1054077, R.271-8, PageID#13921-13928.

In September, 2007, BellSouth managers submitted a high priority

IT Work Request that requested funding to change the BellSouth billing system to
comply with the TNAG opinion. BellSouth did not provide funding for the
request. Instead, it waited until after it lost the Madison County lawsuit in 2009
before it changed its billing system, and then only for Alabama customers. See
BellSouth IT Work Request, R.299-1, PageID#19985-19987; Kelley Depo., R.2992, PageID#19992-19993; Walkey Depo., R.299-3, PageID#20010.

In 2009, the District Court for the Northern District of Alabama

interpreted the Alabama 911 law, which is substantially similar in relevant terms to
the ECD Law, to require BellSouth to bill a 911 charge on each voice telephone
line or pathway capable of local exchange service. Madison County, 2009 WL
9087783, *8. The court held that it was not appropriate for BellSouth to apply an

50

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 69

unrelated federal policy to BellSouths compliance with the Alabama 911 Act. Id.
at *11.

In June 2010, BellSouth began a process to change its billing system

to bill 911 charges on all voice channels on PRI multiplex circuits. BellSouth did
not change its practice of only billing one 911 Charge on T1 circuits. BellSouth
Business Requirements Package, R.253 (unsealed), PageID#9521-9522.

In March and April, 2011, BellSouth implemented and announced the

billing system change to begin billing 911 Charges on each voice channel on PRI
multiplex circuits. It has continued to bill only one 911 Charge on T1 lines that
included voice channels.
The Districts asked the District Court to declare that a 911 Charge should be
billed on each voice channel provided by a multiplex circuit. The District Court
declined to rule on the correct interpretation of the law. Instead, the District Court
held that a jury could not conclude that BellSouth did not have a legitimate
disagreement as to the proper interpretation of the statute with respect to multiplex
lines or that BellSouth was engaged in a bad-faith effort to conceal its failure to
bill these lines from the Districts. Memorandum, R.326, PageID#20830.
The District Courts holding is not supported by the ECD Law and evidence
in the record.
a.

The ECD Law Is Clear.

51

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 70

The ECD Law requires that a 911 Charge be assessed on all exchange
access facilities up to 100 per server per location. Tenn. Code Ann. 7-86108(a)(1)(A). Exchange access facilities are defined as all lines, provided by
the service supplier for the provision of exchange telephone service, as defined in
[BellSouths] general subscriber services tariff. Tenn. Code Ann. 7-86103(7)(emphasis added). BellSouths Tariff stated that an exchange line, is
[a]ny line (circuit) directly or indirectly connecting an exchange station with a
central office . . . . BellSouth Tariff, R.271-34, PageID#14363(emphasis added).
Under the ECD Law, each voice channel on a multiplex circuit is an exchange
access facility on which a 911 Charge must be billed, because it is a line or circuit
that connects a customer to the central office through which a call can be made
911.
b.

TECB Has Authoritatively Interpreted the ECD Law.

The 2004 TECB adoption of Policy 23 constituted an authoritative


interpretation of the ECD Law by the agency the legislature established for the
purpose of assisting the Districts and establishing emergency communications for
all citizens of the state. Tenn. Code Ann. 7-86-302(2014). The TECB was given
broad powers to accomplish those purposes. Tenn. Code Ann. 7-86-306 (2014).
Policy 23 required BellSouth to bill 911 Charges on each voice pathway provided
by PRI and TI multiplex circuits. BellSouth had the right to initiate an

52

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 71

administrative proceeding within 60 days to appeal Policy 23, but did not do so.
Tenn. Code Ann. 7-86-306 (2014).
c.

The TNAG Confirmed TECBs Authoritative


Interpretation of the ECD Law.

In Tenn.Op.Atty.Gen. 07-38, 2007 WL 1054077, R.271-8, PageID#1392113928, the TNAG confirmed TECBs interpretation of the ECD Law. Although
opinions of the Attorney General are not binding on courts, government officials
rely upon them for guidance; therefore, this opinion is entitled to considerable
deference. State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995). The TNAGs
confirmation of Policy 23 affirms its authority and should have been given
deference by the District Court.
d.

The Actions of BellSouths Key Managers Show


BellSouths Interpretation Was Unreasonable.

The initiation of the Madison County litigation in 2006 and the 2007 TNAG
opinion led key BellSouth management to conclude that BellSouth needed to
immediately change its billing system to begin billing 911 Charges on each voice
channel provided by PRI and T1 multiplex circuits. BellSouth IT Work Request,
R.299-1, PageID#19985-19987. As BellSouths Mr. Kelley explained, the IT
Work Request asked for funding to implement the needed billing change. Kelley
Depo., R.299-2, pp. 57-58, PageID#19992-19993. Bellsouth did not provide the
funding.

53

Case: 16-5149

e.

Document: 17

Filed: 04/11/2016

Page: 72

The Chronology Shows That BellSouths Contrary


Interpretation Was Unreasonable.

Well before BellSouth finally changed its billing practices in 2011 to bill all
PRI voice channels, BellSouth knew that every administrative and judicial
authority had found that its interpretation of its obligation to bill 911 charges was
wrong. BellSouth knew that its own key managers had concluded that its
interpretation was wrong and that it needed to change its billing practices years
before it finally did. But, BellSouth stubbornly resisted.
This is not a case in which there were conflicting administrative
interpretations of an applicable regulation. Compare United States ex rel.
Hochman v. Nackman, 145 F.3d 1069 (9th Cir. 1998) (two conflicting VA
regulations). Instead, this is a case in which the state agency charged with
ensuring that emergency communications are available to all citizens of the state
issued a clear, definitive interpretation of the ECD Law, which the TNAG
confirmed as correct. Once the TECB issued Policy 23, BellSouth could not rely
on any claimed ambiguity in the ECD Law. As the Court of Appeals for the
Eighth Circuit explained in a case involving HCFA regulations,
If the [False Claims Act plaintiff] shows the defendants certified
compliance with the regulation knowing that the HCFA interpreted
the regulations in a certain way and that their actions did not satisfy
the requirements of the regulation as the HCFA interpreted it, any
possible ambiguity of the regulations is water under the bridge.

54

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 73

Minnesota Assn of Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032,
1053 (8th Cir. 2002).
f.

The Districts Did Not Have Knowledge of BellSouths


Wrongdoing.

The District Court devoted significant portions of its opinion to recitation of


BellSouths incorrect contentions that BellSouth did not conceal its refusal to
comply with the ECD Law. Although the District Court ultimately held that
[w]hether or not the Districts knew it was happening is immaterial,24 the District
Court marginalized the Districts evidence showing that they did not know of or
suspect BellSouths non-compliance. The responsible officials of the Districts
testified that they did not know that BellSouth was filing false reports. Combined
deposition excerpts showing Districts absence of knowledge, R.285-38,
PageID#18346-18432 and Combined depositions excerpts showing Districts lack
of suspicion of BellSouths non-compliance, R.285-14, PageID#17884-17948.
Although the knowledge of the Districts was immaterial, none of the
evidence cited by the District Court supports its finding that BellSouth established
that it did not conceal its non-compliance from the Districts.
The District Court also contended, incorrectly, that the Districts could have
learned of BellSouths actions by requesting an audit, although the TRA regulation

24

Memorandum, R.326, PageID#20829-20830.

55

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 74

that the Court cited expired, as to BellSouth, in 1999. Tenn.Comp.R.&Regs. 12204-8-.13(g). Section 1220-4-8-13(g)(2) is the section that applied to BellSouth as
the Incumbent Enhanced 911 Emergency Service Provider, and it specified in its
opening words that its obligations only applied [f]or a period of four (4) years
from June 6, 1995. The District Court also ignored evidence showing that
BellSouth refused to provide information regarding its billing practices when the
Districts requested the information. Immediately prior to filing suit, the Districts
requested BellSouth to produce its line count information in order to determine
whether it had been properly assessing 911 Charges. Hamilton SAC, 99-101,
R.61, PageID#1500-1501. BellSouth admits that it failed to provide the
information. Answer to Hamilton SAC, R.66., 101, PageID#1599. Indeed,
BellSouth contends that the ECD Law does not require [BellSouth] to provide
such information and [BellSouth] has never provided such information.
BellSouth Memorandum, R.21, PageID#247.
[A]t the summary judgment stage, the judges function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial. Anderson, 477 U.S. at 249-50. At a minimum,
the evidence in the record shows that BellSouth refused to follow authoritative
administrative interpretations confirming the unlawful nature of BellSouths
multiplex billing practice. The evidence also at least creates a disputed issue of

56

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 75

fact concerning whether BellSouth concealed its multiplex billing policy from the
Districts. BellSouths lack of forthrightness with the Districts, however, is only
part of the inquiry into the unreasonableness of its actions.
The District Court erred when it failed to hold that BellSouths interpretation
of the ECD Laws requirement that it bill all multiplex circuit voice channels was
not reasonable. The District Court further erred when it applied its new standard,
requiring the Districts to prove, at the summary judgment stage, that BellSouth not
only acted knowingly, but acted in bad faith. A reasonable jury could conclude
from the evidence in the record, including the interpretations provided by the
TECB, the TNAG, and the Alabama District Court, that BellSouth did not act
reasonably in refusing to bill 911 Charges on all voice pathways provided by
multiplex lines and that BellSouth had knowledge of the falsity of its monthly and
annual reports.

57

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 76

CONCLUSION
The Districts request that the Court reverse the District Courts dismissal of
the Districts private cause of action to enforce the ECD Law. The Districts further
request that the Court reverse the District Courts denial of the Districts motion
for summary judgment establishing that BellSouth owes fiduciary duties to the
Districts and its grant of summary judgment to BellSouth on the fiduciary duty
issue. Finally, the Districts request that the Court reverse the District Courts
grant of summary judgment as to their Tennessee False Claims Act claims.
The Districts request that the Court remand the cause to the District Court
for completion of discovery and trial.
Respectfully submitted,
CHAMBLISS, BAHNER & STOPHEL, P.C.
By: s/Frederick L. Hitchcock
Frederick L. Hitchcock, TN BPR No. 005960
Yousef A. Hamadeh
Willa B. Kalaidjian
605 Chestnut Street, Suite 1700
Chattanooga, Tennessee 37450
(423) 756-3000
(423) 508-1222 fax

Michael J. Mahn
711 Signal Mountain Road, PMB 316
Chattanooga, TN 37405
(423) 280-7961
Counsel for the Plaintiff-Appellant Districts

58

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 77

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)


The undersigned hereby certifies as follows:
1.

This brief complies with the type-volume limitations of Fed. R. App.

P 32(a)(7)(B) because this brief contains 13,385 words (including 228 words in
images of tables and graphs), excluding the parts of the brief exempted by Fed. R.
App. P. 32(a)(7)(B)(iii).
2.

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
2010 in size 14 Times New Roman.
Respectfully submitted, this 11th day of April, 2016.
CHAMBLISS, BAHNER & STOPHEL, P.C.
By:

s/Frederick L. Hitchcock

59

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 78

CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of April, 2016, a copy of the foregoing
Brief of Plaintiffs-Appellants was filed electronically. Notice of this filing will be
sent by operation of the Courts electronic filing system to all parties indicated on
the electronic filing receipt. All other parties will be served by regular U.S. mail.
Parties may access this filing through the Courts electronic filing system.
CHAMBLISS, BAHNER & STOPHEL, P.C.
By:

s/Frederick L. Hitchcock

60

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 79

STATUTORY ADDENDUM
TABLE OF CONTENTS
ALABAMA CODE OF 1975 ..................................................................................65
Chapter 98 Emergency Telephone Service.........................................................65
11-98-1.

(Effective until October 1, 2013) Definitions. ..........................65

11-98-2.

(Effective until October 1, 2013) Communications


districts; creation; composition; powers and duties. .................66

11-98-3.

The digits 911 established as primary emergency


telephone number. .....................................................................67

11-98-4.

(Effective until October 1, 2013) Board of


commissioners. ..........................................................................67

11-98-4.1.

911 Board created; composition; powers and duties. ...............69

11-98-5.

(Effective until October 1, 2013) Emergency telephone


service charge. ...........................................................................72

11-98-5.1.

(Repealed effective October 1, 2013) Maximum tariff


rates. ..........................................................................................75

11-98-5.2.

911 Fund. ..................................................................................76

11-98-5.3.

Prepaid wireless telephone service. ..........................................80

11-98-6.

(Effective October 1, 2013) Disposition of funds. ...................83

11-98-7.

(Effective until October 1, 2013) Commercial Mobile


Radio Service -- Board created; powers and duties;
Sunset provision. .......................................................................84

11-98-7.1.

(Repealed effective October 1, 2013) Phase II Enhanced


911 Implementation Fund; reimbursement of costs;
disposition of funds. ..................................................................89

11-98-8.

(Repealed effective October 1, 2013) Commercial


Mobile Radio Service -- Duties of providers; service
charges.......................................................................................90

11-98-9.

(Effective October 1, 2013) Technical proprietary


information. ...............................................................................91

11-98-10.

Restrictions on 911 use; secondary backup emergency


number authorized; certain automatic alerting devices

61

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 80

connected to network prohibited; possible penalties for


misuse........................................................................................92
11-98-11.

Methods of response to emergency calls. .................................92

11-98-12.

Release of audio recording; public records; transcript. ............93

11-98-13.

Biennial audit. ...........................................................................94

11-98-13.1.

Permanent Oversight Commission on 911. ..............................94

11-98-14.

Sunset provision. .......................................................................98

11-98-15.

Reimbursement for unused funds retained for 911 Board


administrative expenses; annual costs. .....................................98

TENNESSEE CODE ANNOTATED .....................................................................99


Chapter 86 Emergency Communications ...........................................................99
7-86-101.

Short title ...................................................................................99

7-86-102.

Legislative findings and declarations .......................................99

7-86-103.

Definitions ...............................................................................100

7-86-104.

Methods of creation; referendum ............................................103

7-86-105.

Creation upon majority approval; board of directors .............104

7-86-106.

Status; powers; service charges ..............................................108

7-86-107.

Emergency calls, response methods; 911 service;


backup and nonemergency numbers .......................................108

7-86-108.

Emergency telephone service charges ....................................109

7-86-109.

Additional funding ..................................................................114

7-86-110.

Remittance of funds; rights and duties of service supplier .....114

7-86-111.

911 service; billing rate .......................................................115

7-86-112.

Rates and charges; reduction or suspension ...........................115

7-86-113.

Annual audits ..........................................................................115

7-86-114.

Bonds, notes, and debt obligations; issuance for lease


and/or lease purchase agreements ...........................................116

7-86-115.

Statutory liens; appointment of receiver on default ................118

7-86-116.

Bonds not district indebtedness ..............................................119

7-86-117.

Tax exemption.........................................................................119
62

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 81

7-86-118.

Automatic security system dialers; 911 programming;


fine...........................................................................................119

7-86-119.

Surety bonds ............................................................................119

7-86-120.

Proposed budget; contents of financial plan; filing; public


hearing .....................................................................................121

7-86-121.

Sale of bonds and notes; expenditure of revenues ..................122

7-86-122.

Idle funds; deposit and investment .........................................122

7-86-123.

Financial report .......................................................................123

7-86-124.

Financial assets; limits on authority of sole board


members ..................................................................................123

7-86-125.

Officers and employees; travel regulations ............................123

7-86-126.

Depositories; securing of funds ..............................................123

7-86-127.

Streets and roads; names; changes ..........................................124

7-86-128.

Prepaid wireless emergency telephone service charge ...........124

7-86-129.

Purchasing equipment; responsibility; liability ......................128

7-86-130 to 7-86-150. Reserved ..................................................................128


7-86-151.

General revenue-funded systems; authorization;


construction .............................................................................128

7-86-301. Establishment of emergency communication services .................128


7-86-306.

Powers and duties....................................................................129

RULES OF TENNESSEE REGULATORY AUTHORITY .................................131


Chapter 1220-4-8, Regulations for Local Telecommunications Providers ......131
OTHER PUBLICATIONS ....................................................................................146
Tenn. Op. Atty. Gen. No. 07-38 (Tenn.A.G.), 2007 WL 1054077 ..................146
Tenn. Op. Atty. Gen. No. U95-013 ..................................................................153
TECB Policy 23 ................................................................................................158
BellSouth Telecommunications, Inc. General Subscriber Services Tariff A1.
Definition of Terms .....................................................................................159

63

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 82

BellSouth Telecommunications, Inc. General Subscriber Services Tariff


A13. Miscellaneous Service Arrangements ................................................160
TENN. GEN. ASSEMBLY, JUDICIARY COMMITTEE TRANSCRIPT
OF FEBRUARY 14, 2012, SENATE BILL 2140 ......................................191

64

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 83

ALABAMA CODE OF 1975


Chapter 98 Emergency Telephone Service
11-98-1. (Effective until October 1, 2013) Definitions.
As used in this chapter, the following words and terms have the following
meanings, unless the context clearly indicates otherwise:
(1) CREATING AUTHORITY. The municipal governing body of any
municipality or the governing body of any county that, by passage of a
resolution or ordinance, creates a communication district within its
respective jurisdiction in accordance with this chapter.
(2) DISTRICT. The communication district created pursuant to this chapter.
(3) E911. Enhanced universal emergency number service or enhanced 911
service which is a telephone exchange communications service whereby a
public safety answering point (PSAP) designated by the customer may
receive telephone calls dialed to the telephone number 911. E911 service
includes lines, facilities, and equipment necessary for answering,
transferring, and dispatching public emergency telephone calls originated by
persons within the serving area who dial 911 but E911 service does not
include dial tone first which may be made available by the service provider
based on the ability to recover the costs associated with its implementation
and consistent with tariffs filed with and approved by the Alabama Public
Service Commission.
(4) EXCHANGE ACCESS FACILITIES. All lines, provided by the service
suppliers for local exchange service, as defined in existing general
subscriber services tariffs.
(5) PRIVATE SAFETY AGENCY. Any other for-profit or not-for-profit entity
providing emergency fire, ambulance, rescue, emergency management, or
emergency medical services.
(6) PUBLIC SAFETY AGENCY. An agency of the State of Alabama, or a
functional division of a political subdivision, that provides fire fighting,
rescue, natural or man-caused disaster, or major emergency response, law
enforcement, ambulance, or emergency medical services.

65

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 84

(7) SERVICE SUPPLIER. Any person providing exchange telephone service to


any service user throughout the county or municipality.
(8) SERVICE USER. Any person, not otherwise exempt from taxation, who is
provided exchange telephone service in the municipality or county.
(9) TARIFF RATE. The rate or rates billed by a service supplier as stated in the
service suppliers tariffs and approved by the Alabama Public Service
Commission, which represent the service suppliers recurring charges for
exchange access facilities, exclusive of all taxes, fees, licenses, or similar
charges whatsoever.
(10)
UNIFORM APPLICATION. The rate to be charged or applied by the
communication district to the exchange access rate charged to business and
residential access lines.
11-98-2. (Effective until October 1, 2013) Communications districts; creation;
composition; powers and duties.
The creating authority may by ordinance or resolution, as may be appropriate,
create within its respective jurisdiction communications districts composed of the
territory lying wholly within the municipality or of any part or all of the territory
lying wholly within the county. The districts shall be political and legal
subdivisions of the state, with power to sue and be sued in their corporate names
and to incur debt and issue bonds. The bonds shall be negotiable instruments and
shall be solely the obligations of the district and not the State of Alabama. The
bonds and the income thereof shall be exempt from all taxation in the State of
Alabama. The bonds shall be payable out of the income, revenues, and receipts of
the district. The bonds shall be authorized and issued by resolution or ordinance of
the creating authority of the district and shall be of such series, bear such date or
dates, mature at such time or times, not to exceed 30 years from issuance, bear
interest at such rate or rates, be in such denominations, be in such form, without
coupon or fully registered without coupon, carry such registration and
exchangeability privileges, be payable in such medium of payment and at such
place or places, be subject to such terms of redemption, and be entitled to the
priorities on the income, revenues, and receipts of the district as the resolution or
ordinance may provide.
All bonds shall contain a recital that they are issued pursuant to this chapter, which
recitals shall be conclusive that they have been duly authorized pursuant to this
chapter.

66

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 85

11-98-3. The digits 911 established as primary emergency telephone number.


It has been shown to be in the public interest to shorten the time required for a
citizen to request and receive emergency aid. The provision of a single, primary
three-digit emergency number through which emergency services can be quickly
and efficiently obtained will provide a significant contribution to law enforcement
and other public service efforts by simplifying the notification of public service
personnel. Such a simplified means of procuring emergency services will result in
the saving of life, a reduction in the destruction of property, quicker apprehension
of criminals, and ultimately the saving of moneys. Establishment of a uniform
emergency number is a matter of concern and interest to all citizens. It is the
purpose of this chapter to establish the number 911 as the primary emergency
telephone number for use in communications districts created in municipalities or
counties as herein provided.
11-98-4. (Effective until October 1, 2013) Board of commissioners.
(a) When any district is created, the creating authority may appoint a board of
commissioners composed of seven members to govern its affairs, and shall
fix the domicile of the board at any point within the district. In the case of
county districts, after the expiration of the terms of the members of the board
of commissioners holding office on May 23, 2000, there may be at least one
member of the board from each county commission district if the number of
the county commission does not exceed seven, unless a resolution dated
before January 1, 2000, was passed by a county commission establishing an
appointment process different from this section or as otherwise provided by
the enactment of a local act after May 23, 2000. The members of the board
shall be qualified electors of the district, two of whom shall be appointed for
terms of two years, three for terms of three years, and two for terms of four
years, dating from the date of the adoption of the resolution or ordinance
creating the district. Thereafter, all appointments of the members shall be for
terms of four years.
(b) The board of commissioners shall have complete and sole authority to appoint a
chairman and any other officers it may deem necessary from among the
membership of the board of commissioners.
(c) A majority of the board of commissioners membership shall constitute a
quorum and all official action of the board of commissioners shall require a
quorum.

67

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 86

(d) The board of commissioners may employ such employees, experts, and
consultants as it deems necessary to assist the board of commissioners in the
discharge of its responsibilities to the extent that funds are made available.
(e) In lieu of appointing a board of commissioners, the governing body of the
creating authority may serve as the board of commissioners of the district, in
which case it shall assume all the powers and duties of the board of
commissioners as provided in this chapter.
(f) In addition to other authority and powers necessary to establish, operate,
maintain, and replace an emergency communication system, the board of
commissioners shall have the following authority:
(1) To sue and be sued, to prosecute, and defend civil actions in any court
having jurisdiction of the subject matter and of the parties.
(2) To acquire or dispose of, whether by purchase, sale, gift, lease, devise, or
otherwise, property of every description that the board may deem necessary,
consistent with this section, and to hold title thereto.
(3) To construct, enlarge, equip, improve, maintain, and operate all aspects of an
emergency communication system consistent with subsection (i) of Section
11-98-5.
(4) To borrow money for any of its purposes.
(5) To provide for such liability and hazard insurance as the board may deem
advisable to include inclusion and continuation, or both, of district
employees in state, county, municipal, or self-funded liability insurance
programs.
(6) To enter into contracts or agreements with public or private safety agencies
for dispatch services when such terms, conditions, and charges are mutually
agreed upon, unless otherwise provided by local law.
(7) To make grants to smaller municipalities for dispatching equipment and
services.
(g) The board of commissioners may elect to form a nonprofit, public corporation
with all of the powers and authority vested in such political and legal
entities. The certificate of incorporation shall recite, in part:

68

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 87

(1) That this is a nonprofit, public corporation and is a political and legal
subdivision of the State of Alabama as defined in this chapter.
(2) The location of its principal office.
(3) The name of the corporation.
(4) That the governing body is the board of commissioners.
(h) Any other provisions of this chapter notwithstanding, the board of
commissioners shall present to the creating authority for approval the
acquisition, disposition, or improvements to real property.
(i) In addition to the provisions of subdivision (5) of subsection (f), each employee
or official of the district who receives funds or is involved in the
disbursement of funds in any manner shall be bonded in an amount not less
than the amount of total funds received by the district in the prior fiscal year.
The bonds shall be paid for by the district, and a copy shall be on file at the
offices of the district and at the office of the judge of probate of the county
in which the district is incorporated.
11-98-4.1. 911 Board created; composition; powers and duties.
(a) There is created a statewide 911 Board comprised of 13 members that shall
reflect the racial, gender, geographic, urban/rural, and economic diversity of
the state. The 911 Board shall be created effective July 1, 2012, and until the
effective date of the statewide 911 charge pursuant to Section 11-98-5, with
cooperation of the CMRS Board, shall plan for the implementation of the
statewide 911 charge and the distribution of the revenues as provided herein.
The reasonable administrative expenses incurred by the 911 Board prior to
the implementation of the statewide 911 charge may be deducted from the
existing CMRS Fund. Upon the effective date of the new statewide 911
charge, the 911 Board shall replace and supersede the CMRS Board
formerly created pursuant to this chapter, and the CMRS Fund shall be
incorporated into, and considered part of, the 911 Fund.
(b) The 13 members of the 911 Board, each of whom shall serve for a term of four
years, shall be appointed by the Governor as follows:
(1) Seven members recommended by the Alabama Association of 911 Districts,
one from each of the seven congressional districts, with each district
representative recommended selected by vote of the Alabama Association of

69

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 88

911 Districts members from that congressional district. The initial


appointments shall include the three district representatives on the CMRS
Board who shall serve through March 31, 2014, and a member from the first,
third, fifth, and seventh congressional districts as provided herein. Following
the March 31, 2014, expiration of the terms of the district representatives
drawn from the CMRS Board, the Governor shall appoint a member
recommended by the Association of 911 Districts from each of the second,
fourth, and sixth congressional districts, it being the intent of this section
that each of the seven district representatives on the board be from a
different congressional district, as such districts exist on May 8, 2012.
(2) Two members recommended by CMRS providers licensed to do business in
Alabama.
(3) Two members recommended by incumbent local exchange carriers
operating in Alabama, who shall not be from the same local exchange
carrier.
(4) Two members recommended by cable companies that provide
interconnected VoIP services in Alabama, who shall not be from the same
cable company.
(c) For purposes of the initial board appointments, (1) five members of the board
shall be appointed for a four-year term; (2) four members for a three-year
term; (3) the three members of the CMRS Board who are appointed pursuant
to subdivision (1) of subsection (b) to terms ending on March 31, 2014; and
(4) the remaining member for a two-year term. Thereafter, board members
shall serve staggered terms of four years. In the event of vacancy, the
vacancy shall be filled for the balance of the unexpired term in the same
manner as the original appointment. Any vacancy occurring on the 911
Board, whether for an expired or unexpired term, shall be filled by
appointment as soon as practicable after the vacancy occurs, whether for an
expired or unexpired term.
(d) For all terms expiring after July 1, 2015, appointments made by the Governor
shall be subject to confirmation by the Senate as provided in this subsection.
Appointments made at times when the Senate is not in session shall be
effective immediately ad interim and shall serve until the Senate acts on the
appointment as provided herein. Any appointment made while the Senate is
not in session shall be submitted to the Senate not later than the third
legislative day following the reconvening of the Legislature. In the event the

70

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 89

Senate fails or refuses to act on the appointment, the person whose name
was submitted shall continue to serve until action is taken on the
appointment by the Senate.
(e) The statewide 911 Board shall have the following powers and duties:
(1) To develop a 911 State Plan. In fulfilling this duty, the 911 Board shall
monitor trends in voice communications service technology and in enhanced
911 service technology, investigate, and incorporate Geographical
Information Systems (GIS) mapping and other resources into the plan, and
formulate recommended strategies for the efficient and effective delivery of
enhanced 911 service. In addition, the board, in conjunction with the
Permanent Oversight Commission and utilizing the information developed
by the Department of Examiners of Public Accounts pursuant to Section 1198-13.1, shall study the operational and financial condition of the current
911 systems within the State of Alabama and publish a report detailing the
same; study the rates charged for wireline 911 services and make
adjustments to the rates as provided in this chapter; recommend a long-term
plan for the most efficient and effective delivery of 911 services in Alabama
over both the long- and short-term; recommend any legislation necessary to
implement the long-term plan; and report its recommendations to the
Permanent Oversight Commission no later than February 1, 2014.
(2) To administer the 911 Fund and the monthly statewide 911 charge
authorized by Section 11-98-5.
(3) To distribute revenue in the 911 Fund in accordance with this chapter.
(4) To establish policies and procedures, adopted in accordance with the
Alabama Administrative Procedure Act, to fund advisory services and
training for districts and to provide funds in accordance with these policies
and procedures to the extent funds are available.
(5) To make and enter into contracts and agreements necessary or incidental to
the performance of its powers and duties under this chapter and to use
revenue available to the 911 Board under Section 11-98-5 for administrative
expenses to pay its obligations under the contracts and agreements.
(6) To accept gifts, grants, or other money for the 911 Fund.
(7) To undertake its duties in a manner that is competitively and technologically
neutral as to all voice communications service providers.
71

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 90

(8) To adopt rules in accordance with the Administrative Procedure Act to


implement this chapter; to establish the statewide 911 charge; and, in
response to technological changes, apply, collect, and remit the statewide
911 charge, without duplication, to the active service connections of other
originating service providers that are technically capable of accessing a 911
system, subject to the provisions applicable to voice communications service
providers under this chapter. Any proposed rule extending the application of
the 911 charge beyond those voice communication services defined in
paragraphs a. to c., inclusive, of subdivision (18) of Section 11-98-1, upon
approval by the 911 Board shall be submitted to the Permanent Oversight
Committee which, by an affirmative vote of six of its members, may
disapprove the action. If not disapproved by the Permanent Oversight
Committee within 15 days of submission, the proposed rule shall be deemed
adopted by the 911 Board on the fifteenth day after submission and shall be
certified to the Legislative Reference Service in accordance with the
Administrative Procedure Act. This authority does not include the regulation
of any 911 service, such as the establishment of technical standards.
(9) To take other necessary and proper action to implement this chapter.
11-98-5. (Effective until October 1, 2013) Emergency telephone service
charge.
(a) (1) The board of commissioners of the district may, when so authorized by a
vote of a majority of the persons voting within the district, in accordance
with law, levy an emergency telephone service charge in an amount not to
exceed five percent of the maximum tariff rate charged by any service
supplier in the district, except that in counties with populations of less than
25,000 as determined by the most recent population census, the board of
commissioners may, when so authorized by a vote of a majority of the
persons voting within the district, in accordance with law, levy an
emergency telephone service charge in an amount not to exceed two dollars
($2). The governing body of the municipality or county may, upon its own
initiative, call the special election. Any service charge shall have uniform
application and shall be imposed throughout the entire district, to the
greatest extent possible, in conformity with availability of such service in
any area of the district. 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.

72

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 91

(2) On and after January 1, 1992, the board of commissioners, once so


authorized by a vote of a majority of the persons voting in the district to levy
an emergency telephone service charge, may implement any rate of the
emergency telephone service charge permitted under this section, as it may
be amended from time to time, without further authorization.
(b) If the proceeds generated by an emergency telephone service charge exceed the
amount of moneys necessary to fund the district, the board of commissioners
shall, by ordinance or resolution, as provided in this chapter, reduce the
service charge rate to an amount adequate to fund the district. In lieu of
reducing the service charge rate, the board of commissioners may suspend
the service charge, if the revenues generated therefrom exceed the districts
needs. The board of commissioners may, by resolution or ordinance,
reestablish the original emergency telephone service charge rate, or lift the
suspension thereof, if the amount of moneys generated is not adequate to
fund the district.
(c) An emergency telephone service charge shall be imposed only upon the amount
received from the tariff rate for exchange access lines. If there is no separate
exchange access charge stated in the service suppliers tariffs, the board of
commissioners shall determine a uniform percentage not in excess of 85
percent of the tariff rate for basic exchange telephone service that shall be
deemed to be the equivalent of tariff rate exchange access lines, until the
service supplier establishes the tariff rate. No service charge shall be
imposed upon more than 100 exchange access facilities per person, per
location. Every billed service user shall be liable for any service charge
imposed under this subsection until it has been paid to the service supplier.
The duty of the service supplier to collect the service charge shall commence
upon the date of its implementation, which shall be specified in the
resolution calling the election. That emergency telephone service charge
shall be added to and may be stated separately in the billing by the service
supplier to the service user.
(d) The service supplier shall have no obligation to take any legal action to enforce
the collection of any emergency telephone service charge. The service
supplier shall quarterly provide the board of commissioners with a list of the
amount uncollected, together with the names and addresses of those service
users who carry a balance that can be determined by the service supplier to
be nonpayment of the service charge. The service charge shall be collected
at the same time as the tariff rate according to the regular billing practice of
the service supplier. Good faith compliance by the service supplier shall
73

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 92

constitute a complete defense to any legal action or claim that may result
from the service suppliers determination of nonpayment or the
identification of service users, or both.
(e) The amounts collected by the service supplier attributable to any emergency
telephone service charge shall be due monthly. The amount of service
charge collected in one calendar month by the service supplier shall be
remitted to the district no later than 30 days after the close of a calendar
month. On or before the thirtieth day after the close of a calendar month, a
return, in the form the board of commissioners and the service supplier agree
upon, shall be filed with the district, together with a remittance of the
amount of service charge collected payable to the district. The service
supplier shall maintain records of the amount of the service charge collected
for a period of at least two years from the date of collection. The board of
commissioners may, at its expense, require an annual audit of the service
suppliers books and records with respect to the collection and remittance of
the service charge. From the gross receipts to be remitted to the district, the
service supplier shall be entitled to retain an administrative fee in an amount
equal to one percent.
(f) In order to provide additional funding or additional real or personal property for
the district, the district or county or municipal governing body may receive
federal, state, county, or municipal real or personal property and funds, as
well as real or personal property and funds from private sources, and may
expend the funds or use the property for the purposes of this chapter.
(g) With the agreement of the service supplier and the creating authority, two or
more communication districts, or cities, or counties, or a city and a county in
another communication district may agree to cooperate, to the extent
practicable, to provide funding and service to their respective areas, and a
single board of commissioners of not more than seven members may be
appointed to conduct the affairs of the entities involved.
(h) A district may expend available funds to establish a common address and
location identification program and to establish the emergency service
number data base to facilitate efficient operation of the system. The
governing body and the E-911 board of the county or city affected shall
jointly be responsible for purchasing and installing the necessary signs to
properly identify all roads and streets in the district.

74

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 93

(i) Funds generated from emergency telephone service charges shall be used to
establish, operate, maintain, and replace an emergency communication
system that may, without limitation, consist of the following:
(1) Telephone communications equipment to be used in answering, transferring,
and dispatching public emergency telephone calls originated by persons
within the service area who dial 911.
(2) Emergency radio communications equipment and facilities necessary to
transmit and receive dispatch calls.
(3) The engineering, installation, and recurring costs necessary to implement,
operate, and maintain an emergency communication system.
(4) Facilities to house E-911 services as defined in this chapter, with the
approval of the creating authority, and for necessary emergency and
uninterruptable power supplies for the systems.
11-98-5.1. (Repealed effective October 1, 2013) Maximum tariff rates.
(a) The tariff rate to be utilized in determining the maximum rate of the emergency
communication district fee authorized to be levied in each district pursuant
to Section 11-98-5 shall be determined by utilizing either of the following
rates at the discretion of the board of commissioners of each emergency
communication district:
(1) The maximum tariff charged for any bundled service provided by any
service supplier in the district on the date of the levy and collection of the
fee.
(2) The maximum tariff charged for any bundled service provided by any
service supplier in the district as it existed on February 1, 2005, and adjusted
as prescribed in subsection (b).
(b) A record of maximum tariff rates for any service provided in the district as the
maximum tariff existed on February 1, 2005, shall be maintained by the
Public Service Commission and shall be published on the Internet website or
similar communication system operated by the commission. The maximum
tariff as it existed on February 1, 2005, shall be adjusted once every five
years, beginning on February 1, 2010, by the percentage increase in the
Consumer Price Index over the preceding five calendar years. This adjusted

75

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 94

rate shall also be published by the Public Service Commission beginning in


February of 2010.
(c) The emergency communication district fee authorized and levied in each
district pursuant to Section 11-98-5 shall apply to all wired telephone service
utilized within the district, including such service provided through VoiceOver-Internet Protocol (VoIP) or other similar technology. It shall be the
duty of each provider of VoIP or similar service to collect the fee for each
10-digit access number assigned to the user and to remit such fee as
provided in Section 11-98-5.
11-98-5.2. 911 Fund.
(a) Effective October 1, 2013, the 911 Fund shall be created as an insured interestbearing account into which the 911 Board shall deposit all revenues derived
from the service charge levied on voice communications service providers
under this chapter and all prepaid wireless 911 charges received from the
department. The revenues deposited into the 911 Fund shall not be monies or
property of the state and shall not be subject to appropriation by the
Legislature. The 911 Board shall administer the fund and shall credit the 911
Fund all revenues received. The fund and revenues generated by the fund
may only be used as provided in this chapter.
(b) Effective October 1, 2013, there shall first be deducted, no more than one time
during each calendar month, from the total amount of the statewide 911
charges paid over to the 911 Board during such month, a sum not to exceed
one percent of the total amount, to be applied by the 911 Board exclusively
for payment of administrative expenses theretofore incurred by it and, at the
boards discretion, the awarding of additional operational grants to districts
outside of the other distribution criteria in this subsection upon a showing of
hardship. The balance of the total amount of the statewide 911 charges paid
over to the 911 Board during each calendar month shall be deposited into the
911 Fund and shall be apportioned and distributed in accordance with the
succeeding provisions of this subsection.
(1) There shall be distributed each month among all then existing districts, from
the moneys then on deposit in the 911 Fund, an aggregate amount equal to
the sum of a. 80 percent of the portion of the statewide 911 charges remitted
to the 911 Board with respect to the month by CMRS providers and for
prepaid wireless 911 charges, plus b. 100 percent of all other statewide 911
charges remitted to the 911 Board with respect to the month.

76

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 95

(2) There shall be paid each month to each then existing district, out of the
amount described in subdivision (1), one-twelfth of the sum of the base
distribution amount defined, as applicable, in subdivisions (3) and (4), plus
the per capita distribution amount defined in subdivision (5).
(3) The term base distribution amount, as used in this section with respect to any
district with a functioning 911 system as of September 30, 2011, and except
as otherwise provided in this subdivision and subdivision (4), means the
highest dollar amount per annum of emergency telephone service charges,
excluding any fees received from the CMRS Fund, if any, received by the
district during the five prior consecutive fiscal years ending on September
30, 2011; provided, that, if the district first levied any such service charge, or
if the district by vote of the commissioners of the district, during the fiscal
year ending on September 30, 2011, or seven months thereafter, increased
the rate of the charge effective on or before January 1, 2013, then the total
dollar amount of the emergency telephone service charges with respect to
the fiscal year ending September 30, 2011, shall be deemed to be the amount
that would have been collected had the increased rate been in effect for the
entire fiscal year ending September 30, 2011. Any vote of the
commissioners authorizing an increase in fees under the preceding sentence
may be contingent upon the enactment of Act 2012-293. No adjustment shall
be made under the preceding sentence to take into account any increase in an
emergency service charge adopted by a district after January 1, 2012, if such
district shall have otherwise increased its emergency service charge since
January 1, 2011. For any district established prior to September 30, 2011,
but which initiated 911 service between September 30, 2011, and June 1,
2012, the base distribution amount shall be deemed to be the amount that
would have been collected if the 911 charge imposed by the district on
August 1, 2012, had been in effect for the entire fiscal year. For any county
or municipal district that was funding an E-911 system on September 30,
2011, without a separate 911 fee, the base distribution amount shall be the
product of: That amount determined by the board to be the county or
municipalitys total funding of its E-911 system for purposes of calculation
of the initial statewide rate under subsection (a) of Section 11-98-5,
multiplied by a fraction, the numerator of which is the total wireline 911 fees
paid to all districts as of September 30, 2011, and the denominator of which
is the total wireline and wireless 911 fees determined by the board to have
been paid to all districts and the CMRS Board for the same period. Within
90 days of the effective date of any adjustment in the statewide 911 charge
to increase the baseline 911 revenues under subdivision (2) of subsection (c)

77

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 96

of Section 11-98-5, the base distribution amount shall be increased by an


amount equal to the product of: a. the total amount distributed to the district
in the immediately preceding fiscal year, multiplied by b. the rate of growth,
determined as a percentage, in the CPI-U utilized by the 911 Board for the
prior five-year period pursuant to subdivision (2) of subsection (c) of Section
11-98-5.
(4) a.
Any district that has, prior to March 1, 2011, entered into one or more
contracts, including, without limitation, any lease, lease-purchase, or
purchase agreement or contract, to acquire equipment utilized or to be
utilized as part of a single, comprehensive, countywide radio system to be
operated within the boundaries of the district, may, no later than December
31, 2012, provide the 911 Board a copy of a pro forma financial statement
setting forth revenue and expense projections demonstrating the ability of
the district to pay all principal and interest maturing or coming due with
respect to any contracts, and any bonds or other obligations issued or
incurred by the district to evidence the borrowing of money by the district in
connection with the planning, acquisition, construction, and equipment of
the countywide radio system, and other system costs. Such revenue
projections shall set forth the districts annualized revenues that would be
included in the base distribution amount as calculated in subdivision (3), for
the fiscal year of the district ending on September 30, 2011, or any fiscal
year thereafter during which the contracts, bonds, or other obligations are
expected to be outstanding and unpaid, and the amount received by the
district during the fiscal year ending September 30, 2011, from the CMRS
Fund. The pro forma statement shall be accompanied by such supporting
information as may be reasonably requested by the 911 Board, whose review
shall be limited to the accuracy and reasonableness of the revenue and
expense projections contained therein solely for the purposes of this
subsection and which shall not extend to the approval or disapproval of any
projects authorized by the district under existing law.
b. For a district meeting the requirements of this subdivision, the base
distribution amount for the district, during any fiscal year or years in
which the contracts, bonds, or other obligations outstanding and
unpaid, shall be increased by the difference, if any, between the
revenue projections shown in the pro forma financial statement and
the base distribution amount as calculated under subdivision (3), and
the districts per capita distribution amount, as defined in subdivision
(5), shall be reduced by an amount equal to the difference, with the

78

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 97

amount of the reduction added to the amount available for payment to


other districts under subdivision (5).
(5) The term per capita distribution amount, as used in this section with respect
to any district, means the districts pro rata share, computed according to the
distribution formula, of the amount described in subdivision (1) that remains
after payment in full of the aggregate base distribution amounts required to
be paid to all districts.
(6) Notwithstanding the preceding provisions of this subsection, there shall
never be paid to any district, during any fiscal year, from the moneys
deposited into the 911 Fund, an amount less than the sum of the total dollar
amount of the initial base distribution amount received by the district as
calculated under subdivision (3) plus, without duplication, amount received
by the district from the CMRS Fund during the fiscal year ending September
30, 2011. For any county or municipal district that was funding an E-911
system on September 30, 2011, without a separate 911 fee, there shall never
be paid from the moneys deposited into the 911 Fund, during any fiscal year,
an amount less than the sum that amount determined by the board to be the
county or municipalitys funding of its E-911 system for purposes of
calculation of the initial statewide rate under this section.
(7) Except as otherwise provided in subdivision (6), there shall be set aside and
deposited each month, into a separate account, which may, but need not,
form a part of the 911 Fund, an amount equal to 20 percent of the portion of
the statewide 911 charges remitted to the 911 Board with respect to the
month by CMRS providers. All moneys in the separate account shall be used
exclusively for payment of actual and direct costs incurred by CMRS
providers in complying with wireless E-911 service requirements established
by the FCC Order and complying with any rules or regulations adopted at
any time by the FCC pursuant to the FCC Order; and the costs may include,
without limitation, costs and expenses incurred in connection with
designing, upgrading, purchasing, leasing, programming, installing, testing,
or maintaining all necessary data, hardware, and software required in order
to provide Phase II Enhanced 911, and the incremental costs of operating
Phase II Enhanced 911.
(c) Each CMRS provider wishing to participate in the payments provided in
subdivision (7) of subsection (b) for expenses related to providing Phase II
Enhanced 911 shall certify to the 911 Board that it does not then collect a
cost-recovery or other similar separate charge from its customers. CMRS
79

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 98

providers failing to provide the certification by October 1 are ineligible to


receive any payments until such certificate is provided to the 911 Board.
Any CMRS provider electing to collect cost-recovery or other similar
separate charges at any time following its October 1 certification shall
immediately notify the 911 Board and is ineligible to participate in the
payments established in this subsection until ceasing the collection from its
customers and providing the notice required herein. This requirement shall
only apply to payments for expenses related to providing Phase II Enhanced
911.
(d) Any CMRS provider wishing to receive reimbursement of costs under the
guidelines established by subsection (c) shall also comply with Section 1198-7.
(e) In the event that there are wireless emergency telephone services that cannot be
efficiently performed at the district level or there are expenses that cannot be
properly allocated at the district level, the 911 Board may determine the
smallest practical unit basis for joint implementation and provide
reimbursements in accordance with this section.
11-98-5.3. Prepaid wireless telephone service.
(a) As used in this section, the following words and terms shall have the following
meanings unless the context clearly indicates otherwise:
(1) DEPARTMENT. The Department of Revenue for the State of Alabama.
(2) PREPAID RETAIL TRANSACTION. The purchase of prepaid wireless
telecommunications service from a seller for any purpose other than resale.
(3) PREPAID WIRELESS CONSUMER. A person who purchases prepaid
wireless telecommunications service in a retail transaction.
(4) PREPAID WIRELESS TELEPHONE SERVICE. A service that meets all of
the following requirements:
a. Authorizes the purchase of CMRS, either exclusively or in
conjunction with other services.
b. Must be paid for in advance.
c. Is sold in units or dollars whose number or dollar value declines with
use and is known on a continuous basis.
80

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 99

(b) Notwithstanding any other provision of this chapter, the current CMRS
emergency telephone service charge established under subdivision (1) of
subsection (b) of Section 11-98-7 and, upon its implementation, the
replacement, statewide 911 charge to be established under subsection (a) of
Section 11-98-5 shall be collected on prepaid wireless telephone service on
each retail transaction as follows:
(1) The prepaid wireless statewide 911 charge shall be collected on prepaid
wireless by the seller from the prepaid wireless consumer with respect to
each retail transaction occurring in this state. The amount of the prepaid
wireless 911 charge shall be either separately stated on an invoice, receipt,
or other similar document that is provided to the prepaid wireless consumer
by the seller, or otherwise disclosed to the prepaid wireless consumer. If a
minimal amount of prepaid wireless telephone service is sold for a single,
non-itemized price as part of the purchase of a wireless communications
device, the seller may elect not to apply the prepaid communications charge
to the initial transaction. For these purposes, a service allotment
denominated as 10 minutes or less, or five dollars ($5) or less, is a minimal
amount. If the seller elects to collect such charge, it shall be treated as all
other prepaid communications charges under this chapter.
(2) For purposes of subdivision (1), a retail transaction that is effected in person
by a prepaid wireless consumer at a business location of the seller shall be
treated as occurring in this state if that business location is in this state, and
any other retail transaction shall be treated as occurring in this state if the
retail transaction is treated as occurring in this state for purposes of Chapter
23 of Title 40.
(3) The prepaid wireless 911 charge is the liability of the prepaid wireless
consumer and not of the seller or of any provider, except that the seller shall
be liable to remit all prepaid wireless 911 charges that the seller collects
from prepaid wireless consumers as provided in subdivisions (6) and (7) of
this subsection, including all charges that the seller is deemed to collect
where the amount of the charge has not been separately stated on an invoice,
receipt, or other similar document provided to the prepaid wireless consumer
by the seller.
(4) The amount of the prepaid wireless 911 charge that is collected by a seller
from a prepaid wireless consumer, if the amount is separately stated on an
invoice, receipt, or other similar document provided to the prepaid wireless
consumer by the seller, shall not be included in the base for measuring any
81

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 100

tax, fee, surcharge, or other charge that is imposed by this state, any political
subdivision of this state, or any intergovernmental agency.
(5) The prepaid wireless 911 charge shall be increased or decreased, as
applicable, upon any change to the rate specified in subdivision (1) of
subsection (b) of Section 11-98-7 or, upon its implementation, the statewide
911 charge. The increase or decrease shall be effective on the effective date
of the change to the postpaid charge or, if later, the first day of the first
calendar month to occur at least 60 days after the enactment of the change to
the rate specified in subdivision (1) of subsection (b) of Section 11-98-7 or,
upon its implementation, the statewide 911 charge. The department shall
provide not less than 30 days of advance notice of the increase or decrease
on the departments website.
(6) Prepaid wireless 911 charges collected by sellers shall be remitted to the
department at the times and in the manner provided by Chapter 23 of Title
40. The department shall establish registration and payment procedures that
substantially coincide with the registration and payment procedures that
apply to Chapter 23, Title 40.
(7) A seller shall be permitted to deduct and retain four percent of prepaid
wireless 911 charges that are collected by the seller from prepaid wireless
consumers.
(8) The audit and appeal procedures applicable to Chapter 23 of Title 40 shall
apply to prepaid wireless 911 charges.
(9) The department shall establish procedures by which a seller of prepaid
wireless telecommunications service may document that a sale is not a retail
transaction, which procedures shall substantially coincide with the
procedures for documenting sales for resale transactions for sales and use tax
purposes under Chapter 23 of Title 40.
(10)
The department shall pay all remitted prepaid wireless 911 charges
over to the Commercial Mobile Radio Services Board and, upon the
effective date of the statewide 911 charge, to the statewide 911 Board,
within 30 days of receipt, for use by the board in accordance with the
purposes permitted by this chapter, after deducting an amount, not to exceed
two percent of collected charges, that shall be retained by the department to
reimburse its direct costs of administering the collection and remittance of
prepaid wireless 911 charges.

82

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 101

(c) The enactment of this section does not constitute an expression as to the
application of the CMRS service charge to prepaid service before the
adoption of Act 2012-293.
11-98-6. (Effective October 1, 2013) Disposition of funds.
(a) Funds received by a district pursuant to Section 11-98-5.2 shall be used to
establish, operate, maintain, and replace an emergency communication
system that, without limitation, may consist of the following:
(1) Telephone communications equipment to be used in answering, transferring,
and dispatching public emergency telephone calls originated by persons
within the service area who dial 911.
(2) Emergency radio communications equipment and facilities necessary to
transmit and receive dispatch calls.
(3) The engineering, installation, and recurring costs necessary to implement,
operate, and maintain an emergency communication system.
(4) Facilities to house E-911 operators and related services as defined in this
chapter, with the approval of the creating authority, and for necessary
emergency and uninterruptable power supplies for the systems.
(5) Administrative and other costs related to subdivisions (1) to (4), inclusive.
(b) A district or county or municipal governing body may receive federal, state,
county, or municipal real or personal property and funds, as well as real or
personal property and funds from private sources, and may expend the funds
or use the property for the purposes of this chapter.
(c) Subject to the remaining provisions of this chapter and the approval of the 911
Board and the creating authority, two or more districts, cities, or counties, or
a city and a county in another district may agree to cooperate, to the extent
practicable, to provide funding and service to their respective areas, and a
single board of commissioners of not more than seven members may be
appointed to conduct the affairs of the entities involved. In the event that two
or more districts are consolidated for purposes of this chapter, the base
distribution amount as defined in Section 11-98-5.2 (b)(3) shall include the
combined base distribution amounts that would have been calculated for the
individual districts.

83

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 102

(d) Subject to rules that may be adopted by the 911 Board, a district may expend
available funds to establish a common address and location identification
program and to establish the emergency service number data base to
facilitate efficient operation of the system. The governing body and the E911 board of each county or city affected shall be jointly responsible for
purchasing and installing the necessary signs to properly identify all roads
and streets in the district.
(e) Beginning with fiscal year 2013, the Department of Examiners of Public
Accounts shall audit each district on a biennial basis to ensure compliance
with the requirements of this chapter regarding both revenues and
expenditures.
11-98-7. (Effective until October 1, 2013) Commercial Mobile Radio Service -Board created; powers and duties; Sunset provision.
(a) There is created a Commercial Mobile Radio Service (CMRS) Board,
consisting of seven members who shall be citizens of this state and shall
reflect the racial, gender, geographic, urban and rural, and economic
diversity of the state.
(1) The first five members of the board, each of whom shall serve for a term of
four years, shall be appointed by the Governor, subject to confirmation by
the Senate, as follows:
a. Two members recommended by the ECDs.
b. Two members recommended by CMRS providers licensed to do
business in Alabama.
c. One member recommended by the State Auditor.
(2) The next two members of the board, each of whom shall serve for a term of
four years, shall be appointed as follows:
a. One member of the House of Representatives appointed by the
Speaker of the House.
b. One member of the Senate appointed by the Lieutenant Governor.
(3) The term of each member shall be four years, except that of the members
first appointed, one representing ECDs shall serve for three years and one
representing CMRS providers shall serve for three years, one representing
84

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 103

ECDs shall serve two years and one representing CMRS providers shall
serve two years. The Governor shall designate the term which each of the
members first appointed shall serve when he or she makes appointments.
The two legislative members shall serve for the length of their elective
service, but no more than four years.
(4) In the event of a vacancy, a vacancy shall be filled for the balance of the
unexpired term in the same manner as the original appointment. Any
vacancy occurring on the board, whether for an expired or unexpired term,
shall be filled by appointment by the appointing authority as soon as
practicable after a vacancy occurs, whether for an expired or unexpired term.
(5) For all terms expiring after October 1, 2007, appointments made by the
Governor shall be subject to confirmation by the Senate as provided in this
subdivision. Appointments made at times when the Senate is not in session
shall be effective immediately ad interim and shall serve until the Senate
acts on the appointment as provided herein. Any appointment made by the
Governor while the Senate is in session shall be submitted to the Senate not
later than the third legislative day following the date of the appointment.
Any appointment made while the Senate is not in session shall be submitted
not later than the third legislative day following the reconvening of the
Legislature. In the event the Senate fails or refuses to act on the
appointment, the person whose name was submitted shall continue to serve
until action is taken on the appointment by the Senate.
(b) The board shall have the following powers and duties:
(1) To levy a CMRS emergency telephone service charge on each CMRS
connection that has a place of primary use within the geographical
boundaries of the State of Alabama. The rate of the CMRS service charge
shall be seventy cents ($.70) per month per CMRS customer on each CMRS
connection beginning on May 1, 1998, which amount shall not be increased
except by the Legislature. The CMRS service charge shall have uniform
application and shall be imposed throughout the state. The board shall
receive all revenues derived from the CMRS service charge levied in the
state and collected pursuant to Section 11-98-8.
(2) To establish and maintain the CMRS Fund as an insured, interest-bearing
account into which the board shall deposit all revenues derived from the
CMRS service charge levied on CMRS connections and collected pursuant
to Section 11-98-8. The revenues deposited into the CMRS Fund shall not

85

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 104

be moneys or property of the state and shall not be subject to appropriation


by the Legislature.
(3) To make disbursements from the CMRS Fund in the following amounts and
in the following manner:
a. Out of the funds collected by the board and after deduction of
administrative expenses, 56 percent shall be distributed to ECDs in
accordance with the distribution formula and may only be used for the
lease, purchase, or maintenance of wireless enhanced emergency
telephone equipment, including necessary computer hardware,
software, and data base provisioning, for incremental expenses
directly related to the FCC Order and the handling of wireless
emergency calls.
b. Beginning on October 1, 2007, 24 percent shall be distributed to
ECDs in accordance with Section 11-98-7.1.
c. Twenty percent shall be deposited into a bank account and shall be
used solely for the purpose of payment of the actual costs incurred by
CMRS providers in complying with the wireless E-911 service
requirements established by the FCC Order and any rules and
regulations which are or may be adopted by the FCC pursuant to the
FCC Order, including, but not limited to, costs and expenses incurred
for designing, upgrading, purchasing, leasing, programming,
installing, testing, or maintaining all necessary data, hardware, and
software required in order to provide the service as well as the
incremental costs of operating the service. Verified itemized
statements shall be presented to the board in connection with any
request for payment by any CMRS provider and shall be approved by
a majority vote of the board prior to any disbursement. Approval shall
not be withheld or delayed unreasonably. In no event shall any invoice
be approved for the payment of costs that are not related to
compliance with the wireless E-911 service requirements established
by the FCC Order and any rules and regulations which are or may be
adopted by the FCC pursuant to the FCC Order.
d. Beginning no later than October 1, 2007, and no later than each
October 1 thereafter, each CMRS provider wishing to participate in
the payments provided in paragraph c. for expenses related to the
providing of Phase II Enhanced 911 Service shall certify to the board

86

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 105

that it does not then collect a cost-recovery or other similar separate


charge from its customers. CMRS providers failing to provide such
certification by October 1 shall be ineligible to receive such payments
for any such Phase II expenses incurred until such certificate is
provided to the board. Any CMRS provider electing to collect costrecovery or other similar separate charges at any time following its
October 1 certification shall immediately notify the board and shall be
ineligible to participate in the payments established in this subsection
until ceasing such collection from its customers and providing the
notice required herein. This requirement shall only apply to payments
for expenses related to the provision of Phase II Enhanced 911
Services.
e. In the event that there are wireless emergency telephone services
which cannot be efficiently performed at the ECD level or there are
expenses which cannot be properly allocated at the ECD level, any
ECD or CMRS provider may submit invoices directly to the board
and the board shall determine the smallest practical unit basis for joint
implementation.
(4) To obtain, pursuant to subdivision (5), from an independent, third-party
auditor retained by the board a copy of the annual reports to the Department
of Examiners of Public Accounts no later than 120 days after the close of
each fiscal year, which shall provide an accounting for all CMRS service
charges deposited into the CMRS Fund during the preceding fiscal year and
all disbursements to ECDs during the preceding fiscal year. The Department
of Examiners of Public Accounts shall conduct an annual audit of the
expenditures of the board from all CMRS service charges from the CMRS
Fund.
(5) To retain, upon majority vote of the members of the board who are present
and voting, an independent, third-party auditor for the purposes of receiving,
maintaining, and verifying the accuracy of any and all information,
including all proprietary information, that is required to be collected, or that
may have been submitted to the board by CMRS providers and ECDs, and
the accuracy of the collection of the CMRS service charge required to be
collected. An audit, if conducted pursuant to this subdivision, shall be
conducted pursuant to Chapter 2A of Title 40.
(6) To conduct a cost study on or before July 1, 1999, to be submitted to the
Governor, the Lieutenant Governor, and the Speaker of the House of
87

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 106

Representatives for the purpose of determining whether legislation should be


proposed during the 2000 Regular Session of the Alabama Legislature to
adjust the amount of the CMRS service charge to reflect actual costs to be
incurred by CMRS providers and ECDs in order to comply with the wireless
E-911 service requirements established by the FCC Order and any rules and
regulations which are or may be adopted by the FCC pursuant to the FCC
Order.
(7) To promulgate such rules and regulations as may be necessary to effect the
provisions of this section.
(8) To make the determinations and disbursements as provided by Section 1198-8(c).
(9) Neither the board nor any ECD shall require the CMRS providers to select
or to deploy particular commercial solutions to meet the requirements of the
FCC Order, provided the solutions chosen are compatible with the
operations of the ECDs.
(c) The CMRS service charge provided in subdivision (b)(1) shall be the sole
charge assessed to CMRS providers relating to emergency telephone
services.
(d) The board shall serve without compensation, provided, however, that members
of the board shall be entitled to be reimbursed for actual expenses and travel
costs associated with their service.
(e) Nothing in this chapter shall be construed to constitute the regulation of the
entry of or rates charged by CMRS providers for any service or feature
which they provide to their CMRS service customers, or to prohibit a CMRS
provider from charging a CMRS service customer for any service or feature
provided to the customer.
(f) Subsection (k) of Section 40-21-121 shall apply to the CMRS emergency
telephone service charge imposed in this section.
(g) The board shall be subject to the Alabama Sunset Law under Chapter 20 of
Title 41, shall be classified an enumerated agency under Section 41-20-3,
and shall terminate on October 1, 2000, and every four years thereafter,
unless continued as therein provided. If continued, the board shall be
reviewed every four years thereafter and terminated unless continued into
law.
88

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 107

11-98-7.1. (Repealed effective October 1, 2013) Phase II Enhanced 911


Implementation Fund; reimbursement of costs; disposition of funds.
(a) Beginning on October 1, 2007, the first $2 million of funds collected by the
CMRS Board to be distributed under Section 11-98-7(b)(3)b shall be
deposited into a Phase II Enhanced 911 Implementation Fund. The proceeds
from this fund shall be distributed to any ECD for reimbursement of actual
costs associated with implementation of a Phase II Enhanced 911 system,
provided that the ECD: (1) Does not have a Phase II Enhanced 911 system
in place on June 14, 2007; (2) submits a Phase II Enhanced 911 system
implementation plan to the CMRS Board for approval; and (3) upon
approval of the implementation plan by the CMRS Board, completes
implementation of the Phase II Enhanced 911 system to the satisfaction of
the CMRS Board within 24 months of June 14, 2007.
(b) Once an ECDs Phase II Enhanced 911 system has been fully implemented, the
ECD may apply to the CMRS Board for reimbursement of its actual costs. The
CMRS Board shall review the performance of the equipment, and when
satisfied that the plan is fully and properly implemented, the CMRS Board shall
reimburse the ECD for its actual costs of implementation and endorse the
ECDs participation in the additional funding as provided in subsection (b).
(c) Once the Phase II Enhanced 911 Implementation Fund reaches $2 million, all
additional monies from the CMRS charge which are required to be
distributed under Section 11-98-7(b)(3)b shall be distributed to all ECDs
which have been approved by the board as operating a Phase II Enhanced
911 system based upon each such ECDs population in relation to the
population of all ECDs which have been approved by the board as operating
a Phase II Enhanced 911 system. Any ECD which implements a Phase II
Enhanced 911 system under the provisions of subsection (a) shall be allowed
to participate in this distribution beginning on the first day of the first month
after the CMRS Board has endorsed its participation as a Phase II Enhanced
911 system.
(d) The Phase II Enhanced 911 Implementation Fund created under subsection (a)
shall be dissolved on September 30, 2009, and thereafter, all monies from
the CMRS charge which are required to be distributed under Section 11-987(b)(3)b and any funds remaining in the Phase II Enhanced 911
Implementation Fund, shall be distributed to all ECDs which have
implemented or thereafter shall implement a Phase II Enhanced 911 system
as approved by the board.
89

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 108

11-98-8. (Repealed effective October 1, 2013) Commercial Mobile Radio


Service -- Duties of providers; service charges.
(a) Each CMRS provider shall act as a collection agent for the CMRS Fund and
shall collect the CMRS service charges levied upon CMRS connections
pursuant to Section 11-98-7(b)(1) from each CMRS connection to whom the
CMRS provider provides CMRS service and shall, not later than 60 days
after the end of the calendar month in which such CMRS service charges are
collected, remit to the board the net CMRS service charges collected after
deducting the fee authorized by subsection (b). Each billing provider shall
list the CMRS service charge as a separate entry on each bill which includes
a CMRS service charge.
(b) Each CMRS provider shall be entitled to deduct and retain from the CMRS
service charges collected by the provider during each calendar month an
amount not to exceed one percent of the gross aggregate amount of the
CMRS service charges collected as reimbursement for the costs incurred by
the provider in collecting, handling, and processing the CMRS service
charges.
(c) The board shall be entitled to retain from the CMRS service charges collected
during each calendar month an amount not to exceed two percent of the
gross aggregate amount of such CMRS service charges collected as
reimbursement for the costs incurred by the board in administering this
chapter, including, but not limited to, retaining and paying the independent,
third-party auditor to review and disburse the cost recovery funds and to
prepare the reports contemplated by this chapter.
(d) The CMRS provider shall have no obligation to take any legal action to enforce
the collection of the CMRS service charge. If a CMRS provider receives
partial payment for a monthly bill from a CMRS subscriber, the CMRS
provider shall apply the payment against the amount the CMRS subscriber
owes the CMRS provider first, and shall remit to the board the lesser
amount, if any, as shall result therefrom.
(e) The charges and fees collected under this section shall not be subject to taxes or
charges levied on or by the CMRS provider, nor shall the charges and fees
be considered revenue of the CMRS provider for any purposes. The CMRS
provider shall annually provide to the emergency communications district
management review board an accounting of the amounts billed and collected
and of the disposition of the amounts.

90

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 109

(f) State and local taxes do not apply to the CMRS service charge.
(g) If a CMRS provider collects, but fails to remit, the CMRS service charges as
provided herein or fails to collect the CMRS service charges, the provider
shall be required to remit to the board the actual fees collected or that should
have been collected and interest on the fees not remitted. The amount of the
annual interest due shall be determined in accordance with Section 40-1-44.
The board may seek the enforcement of this section in the Circuit Court of
Montgomery County.
(h) The board shall treat as confidential the remittance information submitted by a
CMRS provider, including the total dollar amount remitted, the number of
service charges remitted, or any other information that the board could
reasonably believe would reveal the number of CMRS customers who are
being serviced by a particular carrier or any other proprietary information.
11-98-9. (Effective October 1, 2013) Technical proprietary information.
All technical proprietary information submitted to the board or to the independent
third-party auditor as provided by Section 11-98-13 shall be retained by the board
and the auditor in confidence and shall be subject to review only by the Examiners
of Public Accounts. Notwithstanding any other provision of the law, no technical
proprietary information submitted shall be subject to subpoena or otherwise
released to any person other than to the submitting voice communication provider,
the board, and the independent third-party auditor without the express permission
of the administrator and the submitting voice communication provider. General
information collected by the independent third-party auditor shall only be released
or published in aggregate amounts which do not identify or allow identification of
numbers of subscribers or revenues attributable to an individual voice
communication provider. Notwithstanding any other provision of the law, no
district, political subdivision, voice communication provider, or its employees,
directors, officers, or agents shall be liable for any damages in a civil action or
subject to criminal prosecution resulting from death, injury, or loss to persons or
property incurred by any person in connection with establishing, developing,
implementing, maintaining, operating, and otherwise providing 911 service in
compliance with the requirements established by the FCC or other state or federal
requirement, except in the case of willful or wanton misconduct.

91

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 110

11-98-10. Restrictions on 911 use; secondary backup emergency number


authorized; certain automatic alerting devices connected to network prohibited;
possible penalties for misuse.
(a) The telephone number 911 is restricted to emergency calls that may result in
dispatch of the appropriate response for: Fire suppression and rescue,
emergency medical services or ambulances, hazardous material, disaster, or
major emergency occurrences, and law enforcement activities.
(b) The digits 911 shall be the primary emergency telephone number, but the
involved agencies may maintain a separate secondary backup number and
shall maintain a separate number for non-emergency telephone calls.
(c) No person shall connect to a service suppliers network or to a CMRS
providers network any automatic alarm, or other automatic alerting device
that automatically dials, without human initiation, and provides a prerecorded message in order to directly access the services that may be
obtained through dialing 911.
(d) The making of a false alarm, complaint, or knowingly reporting false
information using the E-911 system, may subject the caller to penalties as
provided by law.
11-98-11. Methods of response to emergency calls.
(a) The emergency telephone system shall be designed to have the capability of
utilizing at least one of the following four methods in response to emergency
calls:
(1) Direct dispatch method, which is a telephone service to a centralized
dispatch center providing for the dispatch of an appropriate emergency
service unit upon receipt of a telephone request for such services and a
decision as to the proper action to be taken.
(2) Relay method, which is a telephone service whereby pertinent information is
noted by the recipient of a telephone request for emergency services, and is
relayed to appropriate public safety agencies or other providers of
emergency services for dispatch of an emergency service unit.
(3) Transfer method, which is a telephone service which receives telephone
requests for emergency services and directly transfers such requests to an
appropriate public safety agency or other provider of emergency services.

92

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 111

(4) Referral method, which is a telephone service which, upon the receipt of a
telephone request for emergency services, provides the requesting party with
the telephone number of the appropriate public safety agency or other
provider of emergency services.
(b) The board of commissioners of the district shall select the method which it
determines to be the most feasible for the county or municipality.
11-98-12. Release of audio recording; public records; transcript.
(a) After April 21, 2010, an emergency communications district may not release
the audio recording of a 911 telephone call except pursuant to a court order
finding that the right of the public to the release of the recording outweighs
the privacy interests of the individual who made the 911 call or any person
involved in the facts or circumstances relating to the 911 call. This section
shall not apply to law enforcement personnel conducting an investigation
where the 911 telephone call is or may be relevant to the investigation.
(b) An audio recording may be released without a court order to the caller whose
voice is on the 911 audio recording or, in the event that the caller is deceased
or incapacitated, to the legal representative of the caller or the callers estate,
provided the person seeking the 911 audio recording submits a sworn
affidavit to include sufficient information so that the emergency
communications district director may verify the statements which attest to
the following facts:
(1) That the person signing the affidavit is the caller or that the caller is
deceased or incapacitated and the person signing the affidavit is the legal
representative of the caller or the callers estate.
(2) That release of the 911 audio recording is pertinent to the investigation of a
legal matter resulting from the events necessitating the making of the 911
call at issue.
(c) Notwithstanding subsection (a), any written or electronic record detailing the
circumstances, response, or other events related to a 911 call which is kept
by the emergency communications district in its regular course of business
shall be deemed a public writing under Section 36-12-40, and subject to
public inspection as otherwise provided by law.
(d) Upon payment of a reasonable fee, not to exceed the actual cost of transcription,
an emergency communications district shall provide a transcript of any
93

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 112

requested audio recording of a 911 telephone call which is retained by the


emergency communications district.
11-98-13. Biennial audit.
On a biennial basis, if not more frequently, the 911 Board shall retain an
independent, third-party auditor for the purposes of receiving, maintaining, and
verifying the accuracy of any and all information, including all proprietary
information, that is required to be collected, or that may have been submitted to the
board by voice communication providers and districts, and the accuracy of the
collection of the 911 service charge required to be collected.
11-98-13.1.

Permanent Oversight Commission on 911.

(a) The Permanent Oversight Commission on 911 is established. The commission


shall do the following:
(1) Study the operational and financial condition of the current 911 systems
within the State of Alabama and publish a report detailing the same.
(2) Study the rate charged for 911 services and make recommendations to the
board regarding adjustments to the rate.
(3) Develop recommendations for the most efficient and effective delivery of
911 services in Alabama over both the long- and short-term.
(4) Study the charges levied by each telecommunications provider to each
communications district for both data base and network charges.
(5) Develop legislation necessary to implement its long-term 911 plan.
(6) Report its findings, recommendations, and proposed legislation to the
Legislature prior to the last day of the 2014 Regular Session.
(b) The commission shall remain in place until the later of the end of the 2014
Regular Session or the time necessary to complete any pending review of a
proposed adjustment to the statewide 911 charge adjustment under Section
11-98-5 after which the duties, responsibilities, and powers of the Permanent
Oversight Committee under this chapter shall be assumed by the Joint
Committee on Administrative Regulation Review. Any action under this
chapter requiring an affirmative vote of six of the members of the Permanent
Oversight Committee, following its termination, may be taken by a vote of a
majority of the members of the Joint Committee on Administrative
94

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 113

Regulation Review, and any requirement for prior submission of a proposed


rule to the Permanent Oversight Committee under Section 11-98-4.1(e)(8),
shall be replaced in its entirety by the normal procedure for adoption and
legislative review of an agency rule under the Alabama Administrative
Procedure Act.
(c) The commission shall be comprised of the following members:
(1) Three members of the House of Representatives, to be appointed by the
Speaker of the House of Representatives.
(2) Three members of the Senate, to be appointed by the President Pro Tempore
of the Senate.
(3) Three members to be appointed by the Governor, who shall include a
representative of the districts and the State 911 Coordinator.
(d) The membership of the commission shall be inclusive and reflect the racial,
gender, geographic, urban/rural, and economic diversity of the state.
(e) The chair and vice chair of the commission shall be elected at the first meeting
by the members of the commission.
(f) Upon request of the chair, the Secretary of the Senate and the Clerk of the
House of Representatives shall provide necessary clerical assistance for the
work of the commission.
(g) Each legislative member of the commission shall be entitled to his or her
regular legislative compensation, his or her per diem, and travel expenses for
each day he or she attends a meeting of the commission. Upon requisitions
signed by the chair of the commission, these payments shall be paid out of
any funds appropriated to the use of the Legislature by means of warrants
drawn by the Comptroller on the State Treasury. Notwithstanding the
foregoing, no member shall receive additional legislative compensation or
per diem when the Legislature is in session or if a member is being paid any
other payments on the same dates for attendance on other state business.
(h) The Department of Examiners of Public Accounts shall gather and report to the
Permanent Oversight Commission the information necessary to evaluate 911
emergency communications funding across the State of Alabama. Each
communications district established pursuant to Section 11-98-2 and the
Commercial Mobile Radio Service Emergency Telephone Services Board

95

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 114

and the statewide 911 Board, unless exempted by the Department of


Examiners of Public Accounts for good cause, shall provide at least the
information specified following to the Department of Examiners of Public
Accounts no later than 180 days after May 8, 2012.
(1) For wireline 911 and for fiscal years ending 2009, 2010, and 2011, the
information provided by communications districts shall include:
a. 911 rates in effect for residence telephone service and for business
telephone service in the communications district for each fiscal year.
b. 911 revenues collected by the communications district by month for
each fiscal year.
c. The amount of any funding provided to the communications district
by a county or municipality in which the communications district
resides by month for each fiscal year.
d. The amount of revenues received by the communications district from
the Commercial Mobile Radio Service Emergency Telephone
Services Board by month for each fiscal year.
e. The amount of any direct grants from federal or state government and
any state matches for federal, state, local, or private grants for each
fiscal year.
f. Gifts or other amounts not otherwise reported in this section.
g. Amounts held in any savings or investment accounts or reserve or
escrow accounts by fiscal year.
h. Identification and specification in detail how the 911 funds were spent
in each fiscal year. The Department of Examiners of Public Accounts
shall identify any areas of noncompliance with this chapter.
i. Monthly charges paid to each telecommunications service provider for
both data base and network charges.
(2) Each communications district that fails to provide the information required
by this section to the Department of Examiners of Public Accounts by the
deadline specified in this subsection, unless exempted by the Department of
Examiners of Public Accounts for good cause, shall not be eligible to receive

96

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 115

distributions from the Commercial Mobile Radio Service Emergency


Telephone Services Board after the deadline.
(3) For wireless 911 and for fiscal years ending 2009, 2010, and 2011, the
information provided by the Commercial Mobile Radio Service Emergency
Telephone Services Board shall include:
a. 911 revenues received by month for each fiscal year segregated
between postpaid wireless service and prepaid wireless service.
b. 911 revenues disbursed to each communications district by month by
fiscal year.
c. Amounts of any direct grants from federal or state government and
any state matches for federal, state, local, or private grants for each
fiscal year.
d. Gifts or other amounts not otherwise reported in this section.
e. Amounts held in any savings or investment accounts or reserve or
escrow accounts by fiscal year.
f. The amount of funds retained by the board for operation of the board
and identify how the funds retained were spent in each fiscal year.
g. The amount of funds that were escrowed for the purpose of
reimbursing wireless carriers for cost recovery or implementation for
Phase I and Phase II 911 implementation costs and the amounts paid
to the wireless carriers for cost recovery in each fiscal year segregated
by Phase I and Phase II.
(i) The Commercial Mobile Radio Service Emergency Telephone Services Board
and the statewide 911 Board shall track monthly wireless 911 prepaid
revenue following implementation of the prepaid 911 point-of-sale
mechanism specified in Section 11-98-5.3 and shall file a monthly report
with the Permanent Oversight Commission detailing and comparing prepaid
911 revenues received in the 2012 fiscal year to the prepaid revenues
received in the 2011 fiscal year. The first monthly report shall be filed with
the commission no later than 60 days following implementation of the pointof-sale system and on a monthly basis thereafter.

97

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 116

(j) The Department of Examiners of Public Accounts shall promulgate rules and a
common financial reporting format to establish annual reporting
requirements applicable to all communications districts and the Commercial
Mobile Radio Service Emergency Telephone Services Board or statewide
911 Board that the committee shall need to monitor 911 surcharge rates, 911
revenues, and the use of 911 funds on an ongoing annual basis. The
Department of Examiners of Public Accounts shall gather and report to the
commission the information necessary to evaluate 911 emergency
communications funding across the State of Alabama on an ongoing basis.
(k) The annual reports of the communications districts and the Commercial Mobile
Radio Service Emergency Telephone Services Board and any reports
developed by the commission shall be posted no later than 60 days following
the end of the fiscal year on a website to be determined by the Department of
Examiners of Public Accounts.
(l) To assist in the development of the long-term plan for 911 in the state, the
statewide 911 Board and Permanent Oversight Commission may solicit
input from members of the 911 districts in the state, from members of the
communications industry operating in the state, and, if deemed necessary,
from 911 experts outside the state.
11-98-14. Sunset provision.
The 911 Board shall be subject to the Alabama Sunset Law, Chapter 20, Title 41,
as an enumerated agency as provided in Section 41-20-3, and shall have a
termination date of October 1, 2016, and every four years thereafter, unless
continued pursuant to the Alabama Sunset Law.
11-98-15. Reimbursement for unused funds retained for 911 Board
administrative expenses; annual costs.
The 911 Board shall reimburse the Department of Examiners of Public Accounts to
the extent of any unused funds retained for administrative expenses under this
section or Section 11-98-5.2(b) for the amount of actual costs incurred in carrying
out the requirements placed upon the Department of Examiners of Public Accounts
by this chapter, as evidenced by invoice presented to the board. By January 1,
2013, the Department of Examiners of Public Accounts shall provide the 911
Board with a projection of its annual costs in meeting the requirements of this
chapter, which shall be treated and retained by the 911 Board as an administrative

98

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 117

fee in addition to the administrative allowance specified in Section 11-98-5.2(b).


The invoiced amount shall be due and payable within 30 days of presentment.
TENNESSEE CODE ANNOTATED
Chapter 86 Emergency Communications
7-86-101. Short title
This part shall be known and may be cited as the Emergency Communications
District Law.
7-86-102. Legislative findings and declarations
(a) The general assembly finds and declares that the establishment of a uniform
emergency number to shorten the time required for a citizen to request and
receive emergency aid is a matter of public concern and interest. The general
assembly finds and declares that the establishment of the number 911 as the
primary emergency telephone number provides a single, primary, three-digit
emergency telephone number through which emergency service can be quickly
and efficiently obtained, and make a significant contribution to law enforcement
and other public service efforts requiring quick notification of public service
personnel. It is the intent to provide a simplified means of securing emergency
services, which will result in saving of life, a reduction in the destruction of
property, quicker apprehension of criminals and, ultimately, the saving of
money.
(b) (A)
The general assembly finds that the establishment of a uniform
emergency number to shorten the time required for a citizen to request and
receive emergency aid is a matter of public interest and concern. The general
assembly finds also that the continued viability of the lifesaving 911 emergency
communications service is of the highest priority for the health and safety of the
citizens of Tennessee.
(2) The general assembly further finds that the effectiveness of 911 service
depends on the ability of emergency service providers to timely respond to
persons requiring emergency assistance; further, that the response by such
providers is directly affected by the nature and coverage of the telephone
and radio communications network available within a community, the
quality of which is often limited by the availability of financial resources in
the community.

99

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 118

(3) The general assembly further finds that rapid technological advancements
have provided the public with non-wireline services, including, but not
limited to, commercial mobile radio service (CMRS) and IP-enabled service,
which are capable of connecting users dialing or entering the digits 911 to
public safety answering points (PSAPs). The general assembly also finds
that in various rules and orders, the federal communications commission
(FCC) has mandated wireless enhanced 911 service for all CMRS users and
subscribers. The FCC also has addressed enhanced 911 service requirements
for IP-enabled service. The general assembly recognizes that all subscribers
and users of non-wireline services, including CMRS and IP-enabled service,
which are capable of connecting users dialing or entering the digits 911 to
PSAPs should share in the benefits of 911 service and should participate in
the funding of the service.
(c) Further, the general assembly finds that, while a competitive market for the
public safety answering point equipment associated with the provision of 911
service is in the public interest, limited oversight by the Tennessee regulatory
authority of the provision of such equipment is also in the public interest.
Therefore, public safety answering point equipment shall be regulated by the
authority only for the purpose of adopting standards for the equipment and for
the protection of proprietary customer specific information and to assure the
integrity of 911 service and the privacy and safety of Tennesseans; provided,
that such standards shall be consistent with the FCC Part 68 standards.
(d) It is the intent that all funds received by the district are public funds and are
limited to purposes for the furtherance of this part. The funds received by the
district are to be used to obtain emergency services for law enforcement and
other public service efforts requiring emergency notification of public service
personnel, and the funds received from all sources shall be used exclusively in
the operation of the emergency communications district.
7-86-103. Definitions
As used in this chapter, unless the context otherwise requires:
(1) Appropriate county or municipality means the legislative body of the
county or municipality that, by resolution or ordinance, respectively, created
the emergency communications district;
(2) Automatic dialer means an unattended customer premise device or
equipment that generates pulses or tones that activate telephone company

100

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 119

central office equipment and causes the calling line to be connected with the
telephone line of the called number;
(3) Commercial mobile radio service or CMRS means commercial mobile
radio service under 3(27) and 332(d) of the Federal Telecommunications
Act of 1996, 47 U.S.C. 151, et seq., the Omnibus Budget Reconciliation Act
of 1993, and 47 CFR 20.9, and includes service provided by any wireless
two-way communication device, including radio telephone communication
used in cellular telephone service, personal communication service, or the
functional or competitive equivalent of a radio-telephone communications
line used in cellular telephone service, a personal communication service, or
a network access line. Commercial mobile radio service also includes, but
is not limited to, any and all broadband personal communications service,
cellular radio telephone service, geographic area specialized mobile radio
(SMR) services in all bands that offer real-time, two-way voice service that
is interconnected with the public switched network, incumbent wide area
SMR service, or any other cellular or wireless telecommunications service.
Nothing in this definition shall be construed to require compliance by any
amateur radio operator or such radio system;
(4) Commercial mobile radio service provider means any person, corporation,
or entity licensed by the federal communications commission to offer CMRS
in the state of Tennessee, and includes, but is not limited to, broadband
personal communications service, cellular radio telephone service,
geographic area SMR services in the 800 MHz and 900 MHz bands that
offer real-time, two-way voice service that is interconnected with the public
switched network, incumbent wide area SMR licensees, or any other cellular
or wireless telecommunications service to any service user;
(5) Direct dispatch method means a 911 service in which a public service
answering point, upon receipt of a telephone request for emergency services,
provides for the dispatch of appropriate emergency service units and a
decision as to the proper action to be taken;
(6) District means any emergency communications district created pursuant to
this part;
(7) Exchange access facilities means all lines, provided by the service supplier
for the provision of exchange telephone service, as defined in existing
general subscriber services tariffs filed by the service supplier with the
Tennessee regulatory authority;

101

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 120

(8) Federal communications commission order means the Order of the Federal
Communications Commission, FCC Docket 94-102, adopted on June 12,
1996, and released on July 26, 1996, and any subsequent amendments, and
includes other federal communications commission rules and orders relating
to CMRS providers, CMRS, and wireless enhanced 911 service;
(9) IP-enabled services means services and applications making use of
Internet protocol (IP) including, but not limited to, voice over IP and other
services and applications provided through wireline, cable, wireless, and
satellite facilities, and any other facility that may be provided in the future
through platforms that may not be deployable at present, that are capable of
connecting users dialing or entering the digits 911 to public safety answering
points (PSAPs);
(10)
911 service means regular 911 service enhanced universal
emergency number service or enhanced 911 service that is a telephone
exchange communications service whereby a public safety answering point
may receive telephone calls dialed to the telephone number 911. 911
service includes lines and may include the equipment necessary for the
answering, transferring and dispatching of public emergency telephone calls
originated by persons within the serving area who dial 911, but does not
include dial tone first from pay telephones that may be made available by the
service provider based on the ability to recover the costs associated with its
implementation and consistent with tariffs filed with the Tennessee
regulatory authority;
(11)
Non-wireline service means any service provided by any person,
corporation or entity, other than a service supplier as defined in this part, that
connects a user dialing or entering the digits 911 to a PSAP, including, but
not limited to, commercial mobile radio service and IP-enabled services;
(12)
Prepaid wireless telecommunications service means a wireless
telecommunications service that allows a caller to dial 911 to access the 911
system, which service must be paid for in advance and is sold in
predetermined units or dollars of which the number declines with use in a
known amount;
(13)
Public safety emergency services provider means any municipality
or county government that provides emergency services to the public. Such
providers or services include, but are not limited to, emergency fire
protection, law enforcement, police protection, emergency medical services,

102

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 121

poison control, animal control, suicide prevention, and emergency rescue


management;
(14)
Relay method means a 911 service in which a public safety
answering point, upon receipt of a telephone request for emergency services,
notes the pertinent information from the caller and relays such information
to the appropriate public safety agency or other agencies or other providers
of emergency service for dispatch of an emergency unit;
(15)
Service supplier means any person, corporation or entity providing
exchange telephone service to any service user;
(16)
Service user means any person, corporation or entity that is
provided 911 service;
(17)
Tariff rate means the flat monthly recurring rate for one-party
residence or business exchange access service within the base rate area of
the principal exchange of the predominant service supplier within the
geographical confines of the district, as stated in such service suppliers
tariffs filed with the Tennessee regulatory authority, but does not include
taxes, fees, licenses, end-user access charges or any similar charges
whatsoever;
(18)
Transfer method means a 911 service in which a public safety
answering point, upon receipt of a telephone request for emergency services,
directly transfers such request to an appropriate public safety agency or other
provider of emergency services;
(19)
Wireless enhanced 911 service means service with location and
number identification technology whereby users of non-wireline service may
contact a PSAP by entering or dialing the digits 911; such service includes,
but is not limited to, wireless enhanced 911 service as set forth in the federal
communications commission order; and
(20)
Wireless telecommunications service means commercial mobile
radio service as defined by 47 CFR 20.3.
7-86-104. Methods of creation; referendum
(a) The legislative body of any municipality or county may, by ordinance or
resolution, respectively, create an emergency communications district within all
or part of the boundaries of such municipality or county. Prior to the

103

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 122

establishment of such district, an election shall be held as provided in


subsection (b).
(b) The legislative body of any municipality or county shall, by resolution, request
the county election commission to submit to the voters within the boundaries of
a proposed emergency communications district the question of creating such
district in an election to be held pursuant to 2-3-204. In the election, the
questions submitted to the qualified voters shall be, For the Emergency
Communications District or Against the Emergency Communications
District. The county election commission shall certify the results of the
election to such legislative body. The expenses of such election shall be paid by
such local government.
7-86-105. Creation upon majority approval; board of directors
(a) Upon approval by a majority of the eligible voters within the area of the
proposed district voting at such referendum, the legislative body may create an
emergency communications district.
(b) (1) Except as otherwise provided by law, an emergency communications district
shall have a board of directors composed of no fewer than seven (7) nor
more than nine (9) members to govern the affairs of the district. For districts
created by a county legislative body, the county mayor shall appoint the
members of the board of directors subject to confirmation by the county
legislative body. When the county mayor names an appointee to the board,
the county legislative body has ninety (90) days or until the conclusion of its
next regularly scheduled meeting, whichever is later, to confirm or reject the
appointment. If the legislative body does not act within this time period, the
appointment shall take effect without confirmation. In any municipality
having a population of less than thirty thousand (30,000), according to the
1980 federal census or any subsequent federal census, having adopted home
rule pursuant to the Constitution of Tennessee, article XI, 9, and having an
incorporated area lying in two (2) counties, the board of directors may be the
legislative body of such municipality, if the emergency services are provided
by such municipality.
(2) In any county having a metropolitan form of government and having a
population of not less than four hundred thousand (400,000) nor more than
five hundred thousand (500,000), according to the 1980 federal census or
any subsequent federal census, the chief executive officer of the
metropolitan government may appoint a board of directors, composed of no

104

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 123

fewer than seven (7) nor more than nine (9) members, subject to
confirmation by the chief legislative body of the metropolitan government,
which shall govern the affairs of the district. Appointments to the board of
directors shall include members selected from minorities as well as members
of the sex that historically has been underrepresented on boards and
commissions of the metropolitan government.
(3) In emergency communication districts established by counties with a
population greater than three hundred thousand (300,000) and less than
seven hundred fifty thousand (750,000), according to the 1980 federal
census or any subsequent federal census, except in counties with a
metropolitan form of government, the mayor, the chief of police and the fire
chief of the municipality, or their representatives, with the largest population
in the district, the county sheriff in the district, and the county mayor in the
district, shall be members of the board of directors of the district. If, at the
time this subdivision (b)(3) takes effect, any person or persons holding any
one (1) of the positions mentioned in this subdivision (b)(3) is not a member
of the board of directors of the district, then the board shall be immediately
expanded to include such person or persons. In districts covered by this
subsection (b), the legislative body may appoint up to eleven (11) members
to govern the affairs of the district to allow for the appointment of two (2)
additional directors, one (1) of whom shall be a woman and one (1) of whom
shall be a representative of the nongovernmental emergency agencies
servicing such district. Such additional members shall serve for an initial
term of one (1) year. Each term thereafter shall be for a period of four (4)
years. The method of appointment of the board of directors by the county
legislative body referred to in this subdivision (b)(3) shall be by the
confirmation process described in subdivision (b)(1).
(4) Notwithstanding the provisions of this subsection (b) to the contrary, in any
county having a population of not less than forty-three thousand seven
hundred (43,700) nor more than forty-three thousand eight hundred
(43,800), according to the 1980 federal census or any subsequent federal
census, the legislative body may appoint an additional two (2) members to
the board of directors for an initial term of two (2) years. Each term
thereafter of such members shall be for a period of four (4) years.
(5) Notwithstanding any provisions of this section to the contrary, in any county
having a population of not less than eight hundred thousand (800,000),
according to the 2000 federal census or any subsequent federal census, the
county mayor may appoint a board of directors, composed of no fewer than
105

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 124

seven (7) nor more than eleven (11) members, subject to confirmation by the
chief legislative body of the county, which shall govern the affairs of the
district. The county mayor and legislative body shall ensure that the views
and opinions of all participating governmental entities are given full
consideration in the selection of members of the board, with the exact
methodology to be determined by local ordinance or resolution. The county
mayor and legislative body shall make every effort to appoint members who
represent the diversity of the community, including women and minorities.
(6) In emergency communication districts established in any county having a
population in excess of eight hundred thousand (800,000), according to the
1990 federal census or any subsequent federal census, one (1) of the
members of the board of the directors of the district shall be an actively
engaged firefighter, police officer or emergency medical technician;
provided, that, if, on April 5, 1995, one (1) such person is not a member of
the board in such county, when a vacancy occurs on the board or at the
expiration of the term of office of a member of the board, at least one (1)
person meeting the qualifications established in this subdivision (b)(6) shall
be appointed to the board.
(7) It is the public policy of this state to encourage the consolidation of
emergency communications operations in order to provide the best possible
technology and service to all areas of the state in the most economical and
efficient manner possible. Pursuant to this policy, if two (2) or more
counties, cities, or existing emergency communications districts, or any
combination of these, desire to consolidate their emergency communications
operations, a joint emergency communications district may be established by
the parties using an interlocal agreement as authorized by title 5, chapter 1,
part 1, and title 12, chapter 9; provided, that, notwithstanding the language
of this subdivision (b)(7) or any other law to the contrary, no such
consolidation of emergency communications operations shall result in the
creation of a separate emergency communications district within the
boundaries of an existing emergency communications district. Under such
an agreement, the funding percentages for each party, and the size and
appointment of the board of directors of such combined emergency
communications district shall be determined by negotiation of the parties,
notwithstanding the provisions of this subsection (b) to the contrary;
provided, that the board of directors of such combined district shall be
composed of no fewer than seven (7) members to govern the affairs of the
district. The terms, remuneration, and duties stated in subsections (c)-(i)

106

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 125

shall apply to any board of directors of any combined emergency


communications district.
(8) (A) Notwithstanding the provisions of this section to the contrary, in any
emergency communications district created by a municipality after July 1,
2002, the board of directors of the district may be the legislative body of
such municipality. If the board of the directors of the district is comprised of
the legislative body, then the terms of the members of the board of directors
shall run concurrently with their terms as members of the legislative body.
The terms of the members of the legislative body shall run concurrently with
their terms as members on the board of directors.
(B)
In the event subdivision (b)(8)(A) is in effect for an emergency
communications district, and any member of the emergency
communications district board is removed pursuant to 7-86-314,
then the mayor shall appoint a private citizen to serve in the members
place until such time as the replaced member no longer serves on the
legislative body of the municipality. Such appointment shall be
subject to confirmation by the remaining members of the board of
directors of the district.
(C)
In the event subdivision (b)(8)(A) is in effect for an emergency
communications district, and the entire emergency communications
district board is removed pursuant to 7-86-314, then the mayor shall
appoint private citizens to serve in each such members place until
such time as the replaced members no longer serve on the legislative
body of the municipality. Such appointment shall be subject to
confirmation by the board.
(D)
Nothing in this subdivision (b)(8) shall be construed to be
contrary to 7-86-310.
(c) The members shall serve for a term of four (4) years. The initial members shall
be appointed for staggered terms of two (2), three (3) and four (4) years, dating
from the effective date of the ordinance or resolution creating such district.
Members shall serve until a successor is duly appointed and, if required by this
section or any other provision of law, confirmed.
(d) The members shall serve without compensation.

107

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 126

(e) The board of directors shall have complete and sole authority to appoint a chair
and any other officers the board may deem necessary from among the
membership of the board of directors.
(f) A majority of the board of directors shall constitute a quorum, and all official
action of the board shall require a quorum.
(g) The board has the authority to employ such employees, experts and consultants
as the board may deem necessary to assist the board in the discharge of its
responsibilities to the extent that funds are made available.
(h) The board has the authority to establish or make available for the benefit and
welfare of the boards employees such pension, insurance or other employee
benefit plans as the board may deem appropriate, including participation in the
Tennessee consolidated retirement system in accordance with title 8, chapter
35, part 2.
(i) No member of the board of directors shall be an employee of the emergency
communications district.
7-86-106. Status; powers; service charges
The emergency communications district so created shall be a municipality or
public corporation in perpetuity under its corporate name, and the district shall in
that name be a body politic and corporate with power of perpetual succession, but
without any power to levy or collect taxes. Charges for services authorized in this
chapter shall not be construed as taxes and shall be payable as bona fide service
charges by all service users, whether private or public, profit making, or not-forprofit, including governmental entities. The powers of each district shall be vested
in and exercised by a majority of the members of the board of directors of the
district.
7-86-107. Emergency calls, response methods; 911 service; backup and
nonemergency numbers
(a) (1) The board of directors of the district shall create an emergency
communications service designed to have the capability of utilizing at least one
(1) of the following three (3) methods in response to emergency calls:
(A)

Direct dispatch method;

(B)

Relay method; or

108

Case: 16-5149

(C)

Document: 17

Filed: 04/11/2016

Page: 127

Transfer method.

(2) The board of directors of the district shall elect the method that it determines
to be the most feasible for the district.
(b) Each public safety emergency services provider retains the right to dispatch its
own services, unless a voluntary agreement is made between such provider and
the board of directors of the emergency communications district.
(c) The primary emergency telephone number is the digits 911.
(d) The board of directors has the authority to subscribe to the appropriate
telephone services from the service supplier.
(e) The involved agencies may maintain a separate secondary backup number and
shall maintain a separate number for nonemergency telephone calls.
(f) No service supplier shall be required to provide 911 service if the equipment for
such service is not available.
7-86-108. Emergency telephone service charges
(a) (1) (A) The board of directors of the district may levy an emergency
telephone service charge in an amount not to exceed sixty-five cents (65)
per month for residence-classification service users, and not to exceed two
dollars ($2.00) per month for business-classification service users, to be used
to fund the 911 emergency telephone service. Any such service charge shall
have uniform application and shall be imposed throughout the entire district
to the greatest extent possible in conformity with the availability of such
service within the district. No such service charge shall be imposed upon
more than one hundred (100) exchange access facilities per service user per
location.
(B)
(i)
(a) Effective April 1, 1999, commercial mobile radio
service (CMRS) subscribers and users shall be subject to the
emergency telephone service charge, a flat statewide rate, not to
exceed the business classification rate established in subdivision
(a)(2)(A). The specific amount of such emergency telephone service
charge, and any subsequent increase in such charge, shall be
determined by the board, but must be ratified by a joint resolution of
the general assembly prior to implementation. It is the intent of the
general assembly that such rate be established at the lowest rate

109

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 128

practicable consistent with the purposes of this section. The board


shall report annually to the finance, ways and means committees of
the senate and the house of representatives on the status of statewide
implementation of wireless enhanced 911 service and compliance
with the federal communications commission order, the status and
level of the emergency telephone service charge for CMRS
subscribers and users, and the status, level, and solvency of the 911
Emergency Communications Fund. A written copy of such report
shall be submitted to the office of legislative budget analysis. At such
time that the requirements of the federal communications commission
order and this subdivision (a)(1)(B)(i)(a) have been met, the board
may reduce the amount of the emergency telephone service charge for
CMRS; provided, that such reduced amount must be adequate to
cover all reasonable and necessary administrative and operating costs
of the board, provide for the long-term solvency of the 911
Emergency Communications Fund, which shall include compliance
with the federal communications commission order, and those
purposes stated in this subdivision (a)(1)(B)(i)(a).
(b) The board shall notify the department of revenue and each
CMRS provider of such rate, or any rate change, within seven
(7) business days of the effective date of the ratification
resolution. Each CMRS provider shall implement the
emergency telephone service charge not later than sixty (60)
days after being notified of the rate, or rate change, by the
board. The charge shall be assessed on all CMRS subscribers
and users whose place of primary use, as defined in 67-6-102,
is in Tennessee. No such service charge shall be levied on the
trunks or service lines used to supply such service to CMRS
systems. Such proceeds shall be paid to the board, and shall be
deposited in the 911 Emergency Communications Fund. No
other state agency or local governmental entity may levy an
additional surcharge relating to the provision of wireless
enhanced 911 service.
(ii) (a) Each CMRS provider shall remit the funds collected as the
service charge to the board every two (2) months. Such funds shall
be remitted to the board no later than thirty (30) days after the last
business day of such two-month period. The commercial mobile
radio service provider shall be entitled to retain as an

110

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 129

administrative fee an amount equal to three percent (3%) of its


collections of the service charge. The CMRS provider shall be
authorized to demand payment from any service user who fails to
pay any proper service charge, and may take legal action, if
necessary, to collect the service charge from such service user, or
may, in the alternative, and without any liability whatsoever to
such service user for any losses or damages that result from
termination, terminate all service to such CMRS provider;
provided, that any service user so terminated shall have the right to
resume service from the CMRS provider, as long as the service
user is otherwise in compliance with the regulation of the CMRS
provider, upon full payment of all past due service charges and any
other costs or expenses, including reasonable interest, or normal
costs or charges of the CMRS provider for the resumption of
service, incurred by the CMRS provider as the result of any
nonpayment.
(b) Each CMRS provider shall annually provide to the board an
accounting of the amounts billed and collected and of the
disposition of such amounts. Such accounting shall be subject
to audit or review by the comptroller of the treasury.
(iii) For customers who are billed retrospectively, known as
standard customers, (CMRS) providers shall collect the service
charge on behalf of the board as part of their monthly billing
process and as a separate line item within that billing process.
(iv) The service charge shall not be imposed upon customers who
pay for service prospectively, known as prepaid wireless
telecommunications service customers. Prepaid wireless
telecommunications service customers shall be subject to the fee
imposed under 7-86-128.
(v) The service charges imposed under this subsection (a) shall not be
subject to taxes or charges levied on or by the CMRS provider, nor
shall such service charges be considered revenue of the CMRS
provider for any purposes. Collection of the wireless 911 surcharge
shall not reduce the sales price for purposes of taxes that are
collected at point of sale.

111

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 130

(vi) Effective July 1, 2006, this subdivision (a)(1)(B) shall apply to


all subscribers and users of non-wireline service, to the extent such
application is not inconsistent with the orders, rules and regulations
of the federal communications commission.
(C)
The board shall also use such funds created in subdivision
(a)(1)(B) for the purposes described in 7-86-303.
(2) (A) Notwithstanding subdivision (a)(1), the board of directors of a district
may vote to submit to the people of the district the question of whether to
increase the emergency telephone service charge. In no event shall the
charge exceed one dollar fifty cents ($1.50) per month for residenceclassification service users, nor exceed three dollars ($3.00) per month for
business-classification service users, to be used to fund the 911 emergency
telephone service.
(B)
If the chair of the board of directors conveys a certified copy of
the vote of the board to submit such question to the people to the
county election commission not less than sixty (60) days before the
date on which a regular election is scheduled to be held, the county
election commission shall include the referendum question contained
in subdivision (a)(2)(C) on the ballot.
(C)
At any such election, the only question submitted to the voters
shall be in the following form:For the increase in emergency
telephone service charges (here insert the amounts).
Against the increase in emergency telephone service charges (here
insert the amounts).
(D)
The county election commission shall certify the results of the
election to the county mayor and to the chair of the board of directors
of the emergency communications district.
(E)Not more than one (1) election in any county shall be held under this
section within any period of twenty-four (24) months.
(b) Before any initial levy or increase to an existing levy that is approved by the
board of directors as provided in subsection (a) becomes effective, the district
shall provide a thirty-day notice prior to the next scheduled meeting of the
legislative body that created the district, and request a hearing before the
legislative body of the appropriate county or municipality regarding such levy.
112

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 131

The district shall present to the legislative body the amount of the levy and the
justification for such levy, including a plan for the use of the funds. The
legislative body may make recommendations to the district regarding such levy
for consideration by the district before the levy is imposed upon the user. This
subsection (b) shall not apply when the initial levy or any increase to an
existing levy has been approved by a public referendum.
(c) Every billed user shall be liable for any service charge imposed under this
chapter until it has been paid to the service supplier. Such service charge shall
be added to and may be stated separately in the billing by the service supplier to
its telephone subscribers within the geographical area of the district. The
service charge shall be collected at regular billing intervals in accordance with
the regular billing practice of the service supplier. The service charge collected
by the service supplier and remitted to the district shall be excluded from the
computation of any gross receipts, sales, or any other kind of tax to which such
service supplier may be subject.
(d) The legislative body of the appropriate county or municipality may, by its own
two-thirds ( ) vote, adopt an ordinance or resolution that would reduce the
levy established by the board of directors of the district; provided, that no such
ordinance or resolution shall reduce such levy below the level reasonably
required to fund the authorized activities of the emergency communications
district. Such decreased levy shall be in effect until the legislative body, by
majority vote, rescinds the ordinance or resolution calling for the decreased
levy.
(e) (1) The board of directors shall pass a resolution specifying the date on which
the 911 service is to begin and the date on which the service supplier will begin
to bill service users for such service.
(2) The board of directors may authorize the service supplier to begin billing
service users for such service prior to the date on which the 911 service is to
begin.
(f) Revenues from the tariffs authorized in this section shall be used for the
operation of the district and for the purchases of necessary equipment for the
district.
(g) Notwithstanding 7-86-303(d)(1), the board may withhold such distribution to
an emergency communications district, if the district is operating in, or fails to
correct a specific violation of state law. This may include, but not be limited to,

113

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 132

the failure to submit an annual budget or audit, operating contrary to the open
meeting requirements of title 8, chapter 44, part 1, or failure to comply with any
part or parts required by this chapter. Further, the board may also withhold such
distribution if it deems that the district is not taking sufficient actions or acting
in good faith to establish, maintain or advance wireline or wireless E-911
service for the citizens of an emergency communications district.
7-86-109. Additional funding
In order to provide additional funding for the district and the service, the governing
body of the district may receive funds from federal, state and local government
sources, as well as funds from private sources, including funds from the issuance
of bonds, and may expend such funds for the purposes of this part. Any legislative
body of a municipality or county creating a district under the terms of this chapter
may appropriate funds to the district to assist in the establishment, operations and
maintenance of such district.
7-86-110. Remittance of funds; rights and duties of service supplier
(a) The service supplier shall remit the funds collected as the service charge to the
district every two (2) months. Such funds shall be remitted to the district no
later than thirty (30) days after the last business day of such two-month period.
(b) The service supplier shall be entitled to retain as an administrative fee an
amount equal to three percent (3%) of the collections of the service charge.
(c) The service supplier or the board of directors of the district shall be authorized
to demand payment from any service user who fails to pay any proper service
charge, and may take legal action, if necessary, to collect the service charge
from such service user, or may, in the alternative, and without any liability
whatsoever to such service user for any losses or damages that result from
termination, terminate all service to such service user; provided, that any
service user so terminated shall have the right to resume service from the
service supplier as long as the service user is otherwise in compliance with the
regulation of the service supplier, upon full payment of all past due service
charges and any other costs or expenses, including reasonable interest, or
normal costs or charges of the service supplier for the resumption of service,
incurred by the service supplier and the district as the result of any nonpayment.
(d) However, the service supplier shall annually provide to the board of directors of
the district an accounting of the amounts billed and collected and of the
disposition of such amounts.
114

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 133

(e) Good faith compliance by the service supplier with this chapter shall constitute
a complete defense to any legal action or claim against the service supplier
arising in connection with this part.
7-86-111. 911 service; billing rate
The service supplier shall bill the district for the 911 service provided by the
service supplier to the district at the applicable rate as set forth in the service
suppliers tariff on file with the Tennessee regulatory authority for such service,
and the district shall pay the service supplier the charge for the service.
7-86-112. Rates and charges; reduction or suspension
If the proceeds generated by an emergency telephone service charge exceed the
amount of moneys necessary to fund the service, the board of directors of the
district shall reduce the service charge rate or suspend the service charge. The
board of directors may, by resolution, reestablish the service charge rate, or lift the
suspension of the service charge, if the amount of moneys generated is not
adequate to fund the service.
7-86-113. Annual audits
(a) The board of directors of each district shall cause an annual audit to be made of
the books and records of the district. Within thirty (30) days after receipt by the
district, a copy of the annual audit shall be filed with the clerk or recorder of the
appropriate county or municipality who shall then distribute copies to members
of the appropriate legislative body. Within thirty (30) days after receipt by the
district, a copy of the annual audit shall also be filed with the chief
administrative officer of the appropriate county or municipality. The
comptroller of the treasury, through the department of audit, shall be
responsible for determining that such audits are prepared in accordance with
generally accepted governmental auditing standards and that such audits meet
the minimum standards prescribed by the comptroller of the treasury. The
comptroller of the treasury shall promulgate such rules and regulations as are
required to assure that the books and records are kept in accordance with
generally accepted accounting procedures and that audit standards prescribed by
the comptroller of the treasury are met.
(b) These audits shall be prepared by certified public accountants, public
accountants or by the department of audit. In the event the governing body of
the district shall fail or refuse to have the audit prepared, then the comptroller of
the treasury may appoint a certified public accountant, or public accountant or
115

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 134

direct the department of audit to prepare the audit, the cost of such audit to be
paid by the district.
(c) The comptroller of the treasury is authorized to modify the requirements for an
audit as set out in this section for any districts whose activity, in the comptroller
of the treasurys judgment, is not sufficient to justify the expenses of a complete
audit. Furthermore, the comptroller of the treasury is authorized to direct the
department of audit to make an audit of financial review of the books and
records of districts.
7-86-114. Bonds, notes, and debt obligations; issuance for lease and/or lease
purchase agreements
(a) Subject to the approval of the legislative body of a county or municipality in
which a district is established, each district has the power and is hereby
authorized, from time to time, to issue negotiable bonds, notes and debt
obligations for lease or lease purchases in anticipation of the collection of
revenues for the purpose of constructing, acquiring, reconstructing, improving,
bettering or expanding any facility or service authorized by this part, or any
combination of facility or service, and to pledge to the payment of the principal
of and interest on such bonds, notes or debt obligations all or any part of the
revenues derived from the operation of such facility, service or combination of
facility or service. There may be included in the costs for which bonds or notes
are to be issued, reasonable allowances for legal, engineering and fiscal
services, interest during construction, and for six (6) months after the estimated
date of completion of construction, and other preliminary expenses, including
the expenses of incorporation of the district.
(b) No bond, note or debt obligation authorized in this section may be issued until
the resolution authorizing the issuance of the bonds, notes or debt obligations,
together with a statement, shall show in detail the total outstanding bonds,
notes, warrants, refunding bonds, and other evidences of indebtedness of the
district, together with the maturity dates of the bonds, notes, warrants, refunding
bonds, and other evidences of indebtedness, interest rates, special provisions for
payment, the project to be funded by the bonds, notes or debt obligation, the
current operating financial statement of the district and any other pertinent
financial information, is submitted to the comptroller of the treasury or the
comptrollers designee for review, and the comptroller of the treasury or the
comptrollers designee may report on the financial information to the district
within fifteen (15) days from the date the plan was received by the comptroller
of the treasury or the comptrollers designee, and the comptroller of the treasury
116

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 135

or the comptrollers designee shall immediately acknowledge receipt in writing


of the proposed issue statement and information. The report thus received by
the district shall be published once in a newspaper of general circulation in the
county of the principal office of the district, during the week following its
receipt. After receiving the report of the comptroller of the treasury or the
comptrollers designee, and after publication of such report, or after the
expiration of fifteen (15) days from the date the statement and information are
received by the comptroller of the treasury or the comptrollers designee,
whichever date is earlier, the district may take such action with reference to the
proposed issue as it deems advisable. Such report of the comptroller of the
treasury or the comptrollers designee shall also be made a part of the bond,
note or debt obligation transcript.
(c) The bonds may be issued in one (1) or more series, may bear such date or dates,
shall mature at such time or times, not exceeding forty (40) years from their
respective dates, may bear interest at such rate or rates payable semi-annually,
may be in such denomination, may be in such form, either coupon or registered,
may be payable at such place or places, may carry such registration and
conversion privileges, may be executed in such manner, may be payable in such
medium of payment at such place or places, may be subject to such terms of
redemption, with or without premium, all as may be provided by resolution of
the legislative body of the county. The bonds shall be fully negotiable for all
purposes.
(d) If any issue of such bonds or notes is to be sold to an agency of the federal
government or an agency of the state of Tennessee, such bond or note issue
may, at the request of such agency, be delivered as an installment bond or note
payable as to principal and interest in equal or approximately equal installments
for the term of such bond or note issue in accordance with the resolution
authorizing such bond or note issue. Such authorizing resolution shall stipulate
the annual principal and interest requirements during the full term of the bond
or note issue.
(e) Nothing in this section shall prohibit or limit the authority of the board of
directors from entering into leases or lease purchases, so long as the term of the
lease or leases does not exceed five (5) years, and no other approvals of the
lease or leases shall be required.
(f) Notes may be issued in the same manner as bonds, but shall mature at such time
or times, not exceeding five (5) years.

117

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 136

(g) (1) The lease/lease purchase agreements authorized under this section shall be
issued in the manner prescribed by chapter 51, part 9 of this title. For the
purposes of applying chapter 51, part 9 of this title, the district board of
directors is deemed to be the governing body except that, all lease/lease
purchase agreements exceeding five (5) years shall be subject to the approval of
the appropriate county or municipal governing body.
(2) For the purposes of this section, and in 7-86-115 -- 7-86-117, bond or
bonds are deemed to include notes.
(3) For the purposes of this section, in 7-86-116 and 7-86-117, bond or
bonds includes debt obligations for lease/lease purchases.
7-86-115. Statutory liens; appointment of receiver on default
(a) There shall be and there is created a statutory lien in the nature of a mortgage
lien upon any facility acquired or constructed in accordance with this part,
including all extensions and improvements to the facilities or combinations of
extensions and improvements to facilities subsequently made, which lien shall
be in favor of the holder or holders of any bonds issued pursuant to this part,
and all such property shall remain subject to such statutory lien until the
payment in full of the principal of and interest on the bonds. Any holder of the
bonds or any of the coupons representing interest of the bonds may either at law
or in equity, by suit, action, mandamus, or other proceeding, in any court of
competent jurisdiction, protect and enforce such statutory lien and compel
performance of all duties required by this part, including the making and
collection of sufficient rates for the service or services, the proper accounting
for the collections, and the performance of any duties required by covenants
with the holders of any bond issued in accordance with this section. The
statutory lien shall not apply to any property, liens, or equipment owned by the
service supplier.
(b) If any default be made in the payment of the principal of or interest on such
bonds, any court having jurisdiction of the action may appoint a receiver to
administer the district, and the facility or service, with power to charge and
collect rates sufficient to provide for the payment of all bonds and obligations
outstanding against the facility or service and for the payment of operating
expenses, and to apply the income and revenues of the bonds, in conformity
with this part, and any covenants with bondholders.

118

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 137

7-86-116. Bonds not district indebtedness


No holder or holders of any bonds issued pursuant to this part shall ever have the
right to compel the levy of any tax to pay the bonds or the interest on the bonds.
Each bond shall recite in substance that the bond and interest on the bond are
payable solely from the revenue pledged to the payment of the bonds and that the
bond does not constitute a debt of the district within the meaning of any statutory
limitation.
7-86-117. Tax exemption
The district, and all properties at any time owned by it and the income from the
properties and all bonds issued by it and the income from the bonds, shall be
exempt from all taxation in the state of Tennessee.
7-86-118. Automatic security system dialers; 911 programming; fine
(a) The board of directors of an emergency communications district may, by
resolution, vote to preclude service users from programming the emergency
number 911 in automatic dialers used in conjunction with security alarm
systems.
(b) A fine not to exceed fifty dollars ($50.00) may be assessed by the board against
any person violating such board decision.
7-86-119. Surety bonds
(a) Any board member, executive committee member, employee, officer, or any
other authorized person of an emergency communications district, who receives
public funds, has authority to make expenditures from public funds, or has
access to any public funds is hereby required to give bond made payable to the
state of Tennessee with such sureties as provided in this section. Such bond is to
be conditioned in all cases in which a different condition is not prescribed, upon
the faithful discharge of the duties of such office, employment or other
authorized activity in which such person is engaged during the time such person
continues in the duties, or in the discharge of any part of such duties.
(b) Provisions for bonds of all state and county officers set forth in title 8, chapter
19, shall also govern the bonds of all persons covered under this section, so far
as the provisions of title 8, chapter 19, are not inconsistent with this section.

119

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 138

(c) (1) The amount of such required bond shall be a reasonable amount as
determined by the amount of public funds received, expended, or the amount of
such bond shall be reasonable to protect the public from breach of the condition
of faithful discharge of the duties of such office or position, when the amount of
public funds to be received, or expended, or to which that person will have
access is considered.
(2) Effective July 1, 1994, the minimum amount of such required bond shall be
determined from the amount of revenues handled by the respective
emergency communications district during the last audit approved by the
comptroller of the treasury. The minimum amount of the bond shall be based
on revenues as follows:
(A)
Less than fifty thousand dollars ($50,000)--a base bond of five
thousand dollars ($5,000);
(B)
From fifty thousand dollars ($50,000) to five hundred thousand
dollars ($500,000)--an amount equal to ten percent (10%) of the
revenues handled by the district;
(C)
Five percent (5%) of the excess of five hundred thousand
dollars ($500,000) to one million dollars ($1,000,000) shall be added;
(D)
Three percent (3%) of the excess of one million dollars
($1,000,000) to three million dollars ($3,000,000) shall be added;
(E)Two percent (2%) of the excess of three million dollars ($3,000,000)
shall be added; and
(F) The amounts indicated in subdivisions (2)(A)-(E) shall be cumulative.
(d) All such official bonds shall be signed by authorized individuals of a corporate
surety, and such corporation shall be duly licensed to do business in the state of
Tennessee as a surety.
(e) The official bonds required under this section are hereby required to be
transmitted to the comptroller of the treasury, to be filed in the comptroller of
the treasurys office, and be receipted for by the comptroller of the treasury.
(f) The respective emergency communications district shall pay the premiums for
such bonds.

120

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 139

7-86-120. Proposed budget; contents of financial plan; filing; public hearing


(a) The board of each district shall adopt and operate under an annual budget. The
budget shall present a financial plan for the ensuing fiscal year, including at
least the following information:
(1) Estimates of proposed expenditures for each department, board, office or
other agency of the district showing, in addition, the expenditures for
corresponding items for the last preceding fiscal year, projected expenditures
for the current fiscal year and reasons for recommended departures from the
current appropriations pattern in such detail as may be prescribed by the
board. It is the intent of this subdivision (a)(1) that all moneys received and
expended by a district shall be included in the budget. Therefore,
notwithstanding any other provision of law, no district may expend any
moneys regardless of their source, including moneys derived from bond and
long-term note proceeds, federal, state or private grants or loans, or special
assessments, except in accordance with a budget adopted under this section;
(2) Statements of the bonded and other indebtedness of the district, including
the debt redemption and interest requirements, the debt authorized and
unissued, and the condition of the sinking fund;
(3) Estimates of anticipated revenues of the district from all sources, including
non-tax revenues and proceeds from the sale of any bonds, notes or other
debt obligations with a comparative statement of the amounts received by
the district from each of such sources for the last preceding fiscal year, the
current fiscal year, and the coming fiscal year in such detail as may be
prescribed by the board;
(4) A schedule of salaries by position and the number of people employed by
the district;
(5) A statement of the estimated balance or deficit, as of the end of the current
fiscal year;
(6) A statement of pending capital projects and proposed new capital projects,
relating to respective amounts proposed to be raised for capital projects by
appropriations in the budget and the respective amounts, if any, proposed to
be raised for capital projects by the issuance of bonds, notes or other debt
obligations during the fiscal year; and

121

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 140

(7) Such other supporting schedules as the board deems necessary, or is


otherwise required by law.
(b) Prior to adoption by the district, a copy of the proposed budget shall be filed
with the clerk or recorder of the appropriate county or municipality, who shall
then distribute copies to members of the appropriate legislative body and to
members of municipal legislative bodies participating in the district, at least
thirty (30) days before the next scheduled meeting of the legislative body. A
copy of the proposed budget shall also be filed with the chief administrative
officer of the appropriate county or municipality at the same time the budget is
filed with the clerk or recorder. Prior to adoption of the budget, the board of
directors shall hold a public hearing on the proposed budget for which adequate
public notice has been given. Nothing in this subsection (b) shall prohibit a
district from adopting the proposed budget or delay the orderly adoption of the
annual budget by the districts board of directors.
(c) Within thirty (30) days after the budgets adoption by the district board, the
budget, and any amendments to the budget, shall be filed with the clerk or
recorder of the appropriate county or municipality, who shall then distribute
copies to members of the appropriate legislative body. Within thirty (30) days
after its adoption by the district board, the budget, and any amendments to the
budget shall be filed with the chief administrative officer of the appropriate
county or municipality. Nothing in this subsection (c) shall prohibit or limit the
authority of the board of directors from amending a budget after adoption.
7-86-121. Sale of bonds and notes; expenditure of revenues
(a) Bonds or notes issued pursuant to this part may be sold at either public sale or
private negotiated sale.
(b) All revenues, including any debt obligation issued for the purpose of a
lease/lease purchase, must be expended according to the County Purchasing
Law of 1983, compiled in title 5, chapter 14, part 2. For the purposes of
applying title 5, chapter 14, part 2, the district board of directors is deemed to
be the governing body.
7-86-122. Idle funds; deposit and investment
In order to provide a safe temporary medium for the investment of idle funds,
emergency communications districts shall deposit and invest idle funds according
to 5-8-301.

122

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 141

7-86-123. Financial report


At every regularly scheduled meeting of the board of directors, the board must be
provided with a financial report of the emergency communication districts
activities, in accordance with guidelines developed by the comptroller of the
treasury.
7-86-124. Financial assets; limits on authority of sole board members
No member of the board of directors shall have control or custody of the financial
assets of an emergency communications district. No member of the board of
directors, on such members sole authority, may authorize the disbursement,
transfer, withdrawal or investment of any financial assets belonging to the
emergency communications district.
7-86-125. Officers and employees; travel regulations
(a) The board of directors of each district shall adopt comprehensive travel
regulations applicable to all officers and employees of the district. The
minimum regulations shall be the same as those of the appropriate county or
municipality that created the district. Nothing in this subsection (a) shall
prohibit a district from adopting a more stringent policy. However, the district
may establish a mileage allowance for travel up to, but not in excess of, the
business standard mileage rate established by the Internal Revenue Code,
compiled in 26 U.S.C.
(b) If the appropriate county or municipality does not have comprehensive travel
regulations as described in subsection (a), the board shall adopt travel
regulations. Such regulations shall determine how expenses will be reimbursed
and what expenses are reimbursable. A copy of such travel regulations shall be
open for public inspection and kept on file in the district office.
7-86-126. Depositories; securing of funds
All funds deposited with a bank or other financial institution shall be secured by
collateral in the same manner and under the same conditions as state deposits under
title 9, chapter 4, parts 1 and 4, or as provided in a collateral pool created under
title 9, chapter 4, part 5.

123

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 142

7-86-127. Streets and roads; names; changes


(a) Unless expressly provided otherwise by law, the authority to name public and
private roads and streets, including roads and streets located within residential
developments, and to assign property numbers relating to the roads and streets,
is exclusively vested in the legislative bodies of counties for unincorporated
areas, and municipalities within their incorporated boundaries; provided, that
the exercise of this authority must be in a manner acceptable to the United
States postal service.
(b) The legislative bodies of any county or municipality may delegate the authority
provided under this section to the emergency communications district, if there
be one; provided, that the legislative body shall approve road or street name
changes made by the district under such terms as the legislative body may
determine.
(c) Any county or city, including districts with delegated authority, may establish
and impose reasonable fees and enforce policies relating to the changing of
names of roads and streets, and may establish and enforce policies for the
assignment and posting requirements of property numbers.
(d) The legislative bodies of all counties and municipalities, or their designees,
shall provide their local county election commissions an updated list of any
modifications or changes to all house, road, or street names or numbers every
six (6) months.
(e) This section may not be construed to require a local government to maintain
any portion of a road that the local government has not accepted.
7-86-128. Prepaid wireless emergency telephone service charge
(a) As used in this section, unless the context otherwise requires:
(1) Board means the emergency communications board established under 786-302;
(2) Consumer means a person who purchases prepaid wireless
telecommunications service in a retail transaction;
(3) Department means the department of revenue;

124

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 143

(4) Prepaid wireless emergency telephone service charge means the charge
that is required to be collected by a seller from a consumer in the amount
established under this section;
(5) Prepaid wireless telecommunications service means a wireless
telecommunications service that allows a caller to dial 911 to access the 911
system, which service must be paid for in advance and is sold in
predetermined units or dollars of which the number declines with use in a
known amount;
(6) Provider means a person that provides prepaid wireless
telecommunications service pursuant to a license issued by the federal
communications commission;
(7) Retail transaction means the purchase of prepaid wireless
telecommunications service from a seller for any purpose other than resale,
and the purchase of more than one (1) item that provides prepaid wireless
telecommunications service, when such items are sold separately, constitutes
more than one (1) retail transaction;
(8) Seller means a person who sells prepaid wireless telecommunications
service to another person; and
(9) Wireless telecommunications service means commercial mobile radio
service as defined by 47 CFR 20.3.
(b) (1) (A) A statewide prepaid wireless emergency telephone charge of fiftythree cents (53), or an adjusted amount as provided in subdivision (b)(6),
shall be imposed on each retail transaction in lieu of the charge imposed
pursuant to 7-86-108.
(B)
Notwithstanding (b)(1)(A), if a minimal amount of prepaid
wireless telecommunications service is sold with a prepaid wireless
device and a single, non-itemized price is charged for the service, then
the seller may elect not to apply the service charge imposed by this
subdivision (b)(1). For purposes of this subdivision (b)(1)(B), a
minimal amount of service means an amount of service denominated
as either ten (10) minutes or less or five dollars ($5.00) or less.
(2) The prepaid wireless emergency telephone service charge shall be collected
by the seller from the consumer with respect to each retail transaction
occurring in this state. The amount of the prepaid wireless emergency
125

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 144

telephone service charge shall be either separately stated on an invoice,


receipt, or other similar document that is provided to the consumer by the
seller, or otherwise disclosed to the consumer.
(3) For purposes of this subsection (b), a retail transaction that is effected in
person by a consumer at a business location of the seller shall be treated as
occurring in this state if that business location is in this state, and any other
retail transaction shall be treated as occurring in this state if the retail
transaction is treated as occurring in this state for purposes of 67-6-230.
(4) The prepaid wireless emergency telephone service charge is the liability of
the consumer and not of the seller or of any provider, except that the seller
shall be liable to remit all charges that the seller is deemed to collect where
the amount of the charge has not been separately stated on an invoice,
receipt, or other similar document provided to the consumer by the seller.
(5) The amount of the prepaid wireless emergency telephone service charge that
is collected by a seller from a consumer, if such amount is separately stated
on an invoice, receipt, or other similar document provided to the consumer
by the seller, shall not be included in the base for measuring any tax, fee,
surcharge, or other charge that is imposed by this state, any political
subdivision of this state, or any intergovernmental agency.
(6) (A) If the emergency telephone service charge imposed under 7-86108(a)(1)(B)(i)(a) is increased or reduced pursuant to the provisions of such
subdivision, then the prepaid wireless emergency telephone charge imposed
by subdivision (b)(1) shall be increased or reduced in proportion to such
change.
(B)
The proportional increase or reduction shall be effective on the
first day of the first calendar month to occur at least sixty (60) days
after notification is received by the department from the board as
provided in 7-86-108(a)(1)(B)(i)(b).
(C)
The department shall provide notice on its web site of an
increase or reduction that occurs pursuant to this subdivision (b)(6) at
least thirty (30) days before such change takes effect.
(c) (1) Prepaid wireless emergency telephone service charges collected by sellers
shall be remitted to the department at the times and in the manner provided
by title 67, chapter 6, with respect to the sales and use taxes. The department
shall establish registration and payment procedures that substantially
126

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 145

coincide with the registration and payment procedures that apply under title
67, chapter 6.
(2) A seller shall be permitted to deduct and retain three percent (3%) of prepaid
wireless E911 charges that are collected by the seller from consumers.
(3) The audit and appeal procedures applicable under title 67, chapter 1 shall
apply to the prepaid wireless emergency telephone service charge.
(4) The department shall establish procedures by which a seller of prepaid
wireless telecommunications service may document that a sale is not a retail
transaction, which procedures shall substantially coincide with the
procedures for documenting sale for resale transactions for sales and use
purposes under title 67, chapter 6.
(5) The department shall pay all remitted prepaid wireless emergency telephone
service charges over to the board within thirty (30) days of receipt, for use
by the board in accordance with part 3 of this chapter. The department may
deduct an amount, not to exceed two percent (2%) of collected charges, to be
retained by the department to reimburse its direct costs of administering the
collection and remittance of prepaid wireless emergency telephone service
charges.
(d) (1) A seller that is not a provider shall be entitled to the immunity and liability
protections under 7-86-319 and 7-86-320, notwithstanding the
requirement in 7-86-320(a) regarding compliance with federal
communications commission order number 05-116.
(2) A provider shall be entitled to the immunity and liability protections under
7-86-319 and 7-86-320.
(3) In addition to the protection from liability provided by subdivisions (d)(1)
and (2), each provider and seller shall be entitled to the further protection
from liability, if any, that is provided to providers and sellers of wireless
telecommunications service that is not prepaid wireless telecommunications
service pursuant to 7-86-319 and 7-86-320.
(e) The prepaid wireless emergency telephone service charge imposed by this
section shall be the only E911 funding obligation imposed with respect to
prepaid wireless telecommunications service in this state, and no tax, fee,
surcharge, or other charge shall be imposed by this state, any political
subdivision of this state, or any intergovernmental agency, for E911 funding
127

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 146

purposes, upon any provider, seller, or consumer with respect to the sale,
purchase, use or provision of prepaid wireless telecommunications service.
7-86-129. Purchasing equipment; responsibility; liability
(a) Any emergency communications district may purchase equipment under the
same terms of a legal bid initiated by any other district.
(b) (1) Any emergency communications district may purchase directly from a
vendor the same goods and equipment at the same price and under the same
terms as provided in a contract for such equipment entered into by any other
district.
(2) Any emergency communications district that purchases goods and
equipment under this subsection (b) shall directly handle payment, refunds,
returns, and any other communications or requirements involved in the
purchase of the equipment without involving the district that originated the
contract. The originating district shall have no liability or responsibility for
any purchases made by another district under a contract that the originating
district negotiated and consummated.
7-86-130 to 7-86-150. Reserved
7-86-151. General revenue-funded systems; authorization; construction
(a) The legislative body of any municipality or county is authorized by ordinance
or resolution, respectively, to establish, operate and maintain an emergency
communications system providing 911 service within its boundaries when
funded by general revenues.
(b) No provisions of this chapter shall be construed to prohibit such service by such
municipality or county.
7-86-301. Establishment of emergency communication services
The general assembly finds that the Emergency Communications District Law
has been successfully embraced by the vast majority of Tennessee counties, most
of which have already initiated basic or enhanced 911 service and are developing
or maintaining this lifesaving service in furtherance of the purposes stated in the
law. The general assembly also finds that the establishment of emergency
communications services for all citizens of the state will promote the public

128

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 147

interest. The general assembly further finds that statewide wireless enhanced 911
service is in the public interest.
7-86-306. Powers and duties
(a) In order to effectuate the purposes of this part, the board has the power and
authority to:
(1) Promulgate rules and regulations in accordance with the Uniform
Administrative Procedures Act, compiled in title 4, chapter 5, for the
conduct of the affairs of the board;
(2) Adopt a seal for the board, prescribe the style of the seal, and alter the seal at
pleasure;
(3) Subject to title 9, chapter 4, part 51 appoint and fix the salaries and duties of
such experts, agents, and employees as it deems necessary. Notwithstanding
any provision of law to the contrary, for the purposes of 8-30-201 and 830-202, the executive director of the board shall be considered the
equivalent of an assistant commissioner;
(4) Subject to title 12, make and enter into contracts and purchases;
(5) Adopt a proposed budget, which shall be included in the proposed budget of
the department of commerce and insurance;
(6) Accept gifts, grants, or other moneys, and to receive appropriations that may
be made by law;
(7) Provide advisory technical assistance to any emergency communications
district upon request;
(8) Administer the deployment of 911 service for emerging communications
technologies, including, but not limited to, IP-enabled service, that are
capable of connecting users dialing or entering the digits 911 to public safety
answering points and other non-wireline services;
(9) Establish technical operating standards for emergency communications
districts and periodically review and revise wireless enhanced 911 standards
based on orders and rulings by the federal communications commission
(FCC);

129

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 148

(10) Establish operating standards concerning acceptable uses of revenue for


emergency communications districts and periodically review and revise
these standards;
(11) Respond to requests from emergency communications districts,
commercial mobile radio service (CMRS) providers or other parties and
subject to availability of funds, review and approve requests for
reimbursements for expenditures or payment of obligations incurred to
implement, operate, maintain, or enhance statewide wireless enhanced 911
service in conformance with any rules or orders of the FCC, and other
federal and state requirements that pertain to wireless enhanced 911 service;
(12) Raise the emergency telephone service charge rates of an individual
emergency communications district up to the maximum established in 786-108(a)(2)(A); provided, that the district meets financial and operational
criteria established by the board in consultation with the comptroller of the
treasury;
(13) From time to time, submit to the speakers of the general assembly any
recommended amendments to this chapter; and
(14) Exercise all the powers and take all the actions necessary, proper, or
convenient for the accomplishment of the purposes enumerated in this
section.
(b) (1) Any party adversely affected by a decision or order of the board may, within
sixty (60) days of the boards action, initiate a contested case as provided by the
Uniform Administrative Procedures Act, compiled in title 4, chapter 5, which
shall be heard by an administrative law judge sitting alone.
(2) In the conduct of any hearing upon request or complaint, the administrative
law judge may receive evidence in the form of affidavits in addition to minutes,
transcripts, and other evidence of actions by an emergency communications
district.
(c) Nothing contained within subdivision (a)(12) or this section shall be construed
to authorize the board to establish CMRS rates other than a flat, statewide,
uniform rate.

130

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 149

RULES OF TENNESSEE REGULATORY AUTHORITY


Chapter 1220-4-8, Regulations for Local Telecommunications Providers
1220-4-80-.01 Definitions
(1)

In the interpretation of the rules in this Chapter, the following definitions


shall apply:
(a)

Authority - The Tennessee Regulatory Authority.

(b)

Automatic Emergency Communications District (ECD) Routing - E911 call routing to the proper Tandem Central Office where the End
Office has subscribers in more than one ECD and the Incumbent
Emergency 911 Service provider has different Tandem Central offices
serving those ECDs.

(c)

Basic Local Exchange Service - The telecommunications services


comprised of an access line, dial tone, touch tone, and usage provided
to the premises of residential customers or business customers for the
provision of high quality, two-way switched voice, or data
transmission over voice grade facilities, within a local calling area,
Lifeline, Link-up Tennessee, 911 Emergency Services, and
educational discounts existing on the effective date of Chapter 408
Public Acts of 1995. Said service shall be provided at the same level
of quality as was provided on the effective date of Public Chapter 408.
This shall include recurring and nonrecurring charges.

(d)

Bona Fide Request - A request to an Incumbent Local Exchange


Telephone Company or a Competing Local Telecommunications
Service Provider that demonstrates a good faith showing by the
requesting provider that it intends to purchase the services within a
reasonable time.

(e)

Common Channel Signaling - A method of digitally transmitting call


set-up and network control data over a special network fully separate
from the public switched network that carries the actual call.

(f)

Competing Telecommunications Service Provider - A company,


entity, or an individual that offers or provides any two-way
communications service, telephone service, paging service, or

131

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 150

communications service similar to such services and telegraph


services certificated for such services after June 6, 1995.
(g)

Emergency Communications District (ECD) - Any Emergency


Communications District created pursuant to the provisions of T.C.A.
7-86-101, et seq.

(h)

Enhanced 911/911 Service - An emergency service available to the


general public and activated by dialing the digits 911 on the
telephone.

(i)

Gross Domestic Product Price Index (GDP-PI) - The final estimate of


the chain-weighted Gross Domestic Product Price Index as prepared
by the U.S. Department of Commerce and published in the Survey of
Current Business or its successor.

(j)

Incumbent Enhanced 911 Emergency Service Provider - A public


utility offering Enhanced 911 Service on June 6, 1995 to any ECD or
other governing authority referred to in T.C.A. 7-86-101, et seq.

(k)

Interconnection - Refers to telecommunication services, including


intrastate switched access that allows a Telecommunications Service
Provider to interconnect with the networks of other
Telecommunications Service Providers.

(l)

Interexchange Access Service - A telecommunications service to


provide access between end users and an Interexchange carrier and/or
private line services between end users.

(m)

Interexchange Carrier - A facilities based telecommunications service


provider of intrastate, interLATA telecommunications services.

(n)

IntraLATA Long Distance Service - a long distance service within


any LATA.

(o)

Local Calling Area - The geographic area encompassing one (1) or


more local exchanges in maps, tariffs, and rate schedules approved by
the Authority, including the expanded service area as that term is used
in such maps, tariffs, and rate schedules within which toll charges do
not apply.

132

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 151

(p)

Local Exchange - A switching center serving a 10,000 line grouping


or less that can be uniquely identified by an area code and the first
three (3) digits of a telephone number (NXX code).

(q)

Incumbent Local Exchange Telephone Company - A public utility


offering and providing basic local exchange service pursuant to tariffs
approved by the Authority prior to June 6, 1995, or as designated by
the Federal Communications Commission pursuant to 47 U.S.C.
251(h)(2).

(r)

Local Service - Any service provided within a local calling area.

(s)

Local Telecommunications Service Providers - All providers of local


telecommunications services certificated by the Authority after June
6, 1995 and all Incumbent Local Exchange Telephone Companies
serving more than 100,000 access lines or which are otherwise subject
to this rule chapter.

(t)

Long Run Incremental Cost - The additional forward-looking cost the


company would incur in offering an existing or new service, group of
services or basic network function for the current or reasonably
expected level of service demand, excluding shared expenses and
overheads not directly attributable to the service or function.

(u)

Non-basic Services - Telecommunications services which are not


defined as basic local exchange telephone services and which are not
otherwise exempted from this category by the provisions of T.C.A.
65-5-108. Rates for this service shall include recurring and
nonrecurring charges.

(v)

Number Portability - The technical capability to allow a customer to


retain his local number, which includes:
1.

service provider portability - the ability to retain ones


telephone number within a local telecommunications providers
service area when changing service providers;

2.

geographic portability - the ability to take ones telephone


number when moving to a different permanent location within a
local calling area (business or residential);

133

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 152

3.

service portability - the ability to retain ones telephone number


when changing service types, an example would be when a
customer changes from voice grade telephone service to
Integrated Services Digital Network (ISDN) and retains the
same telephone number; and

4.

E911 service portability - the ability to provide and display


subscriber numbers (old number and new number) and a
designation that this is a remote call forwarding (RCF) call in
the ALI database, where RCF is used to accomplish number
portability.

(w)

Price List - The prices, or a range of prices, charged for services


provided by a local telecommunications service provider on file with
the Authority.

(x)

Price Regulation - A method for setting affordable prices through the


use of a combination of caps, floors, and indexes or adjustment
mechanisms, other than methods which use earnings, rate base and
rate of return regulation.

(y)

Rate - The price of a telecommunication service. Whenever the term


price is used in this rule chapter it shall be synonymous with rate and
vice versa.

(z)

Shared Tenant Service Provider - A basic local exchange service


subscriber who shares or resells basic local exchange service,
generally occurring under a single owner or common development
with a single name identity.

(aa)

Stand-alone Cost - Those costs that an efficient firm would incur,


using least-cost technology, to produce a service or group of services
by themselves without reference to the rest of the services produced
by the firm.

(bb) Tariff - The schedule, or a range of prices and regulations for a


particular service, which is filed with the Authority and serves as the
official published list of charges, terms and conditions governing the
provision of the service or facility. Tariffs function in lieu of a
contract between an end user and a service provider.

134

Case: 16-5149

(cc)

Document: 17

Filed: 04/11/2016

Page: 153

Tariff or Price Filing Date - The date on which the new tariff filing or
price filing is first published in the Authoritys weekly tariff sheet.

(dd) Telecommunications Resale Service - A service provided by a


Telecommunications Service Provider, including Shared Tenant
Services Providers, that purchases telecommunications services or
functions from another certificated provider for resale to the public.
(ee)

Telecommunications Services - A generic term describing two-way


communications services transmitted over communications facilities.
These services include voice, data, and video transmissions. These
services exclude the transmission of one-way or two-way television
and radio communications over traditional cable television and
broadcast facilities provided exclusively between TV or radio
subscribers and the TV or radio service provider.

(ff)

Universal Service - The provision of affordable residential basic local


exchange telephone service and carrier-of- last-resort obligations.

(gg) Usage Based Service - A service for which the rate applies to each
additional increment of service usage. Usage based service does not
include a message-rated service or any local exchange service for
which usage rates do not apply after a maximum dollar amount or
level of usage is consumed.
1220-4-8-.02

Certification Policy and Requirement

(1)

The purpose of this rule chapter is to provide specific rules for the Authority
to use in certifying additional service providers in local telecommunications
markets.

(2)

It is the Authoritys policy to ensure that all consumers receive high quality
telecommunications services, regardless of the service provider they select
and that such providers shall be supervised by the Authority.

(3)

Every provider of telecommunications service, unless otherwise exempted


by state or federal law, shall obtain a certificate pursuant to application
under this rule before providing local telecommunications service, and shall
not provide local telecommunications service without a certificate to provide
such service. Any certificate or other Authority approved authority to
provide local telecommunications service existing on the effective date of
this rule shall remain in effect unless otherwise revoked by the Authority.
135

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 154

1220-4-8-.03 General Application Requirement Procedures for all Competing


Telecommunications Service Providers - Local Service.
(1)

Any individual company or entity applying for a certificate of convenience


and necessity under this rule chapter to provide competing local
telecommunications services shall file a petition in accordance with the
provisions of T.C.A. 65-2-103 with the Chair of the Authority.

(2)

Falsification or failure to disclose any required information in the petition


for certification may be grounds for denial or revocation of any certificate.

1220-4-8-.04 Application and Certification Requirements for Competing


Telecommunications Service Providers - Local Service.
(1)

Petitions to obtain certificates to provide competing local telecommunication


services shall include the following:
(a)

demonstration of the ability and willingness to adhere to all applicable


Authority policies, rules and orders;

(b)

documentation of managerial, financial and technical ability to


provide such services;

(c)

the name of the service provider, the address of the corporate


headquarters, and the names and addresses of the service providers
principle corporate officers;

(d)

if different than above, the names and addresses of all officers and
corporate officers located in Tennessee and the name(s) and
address(es) of employee(s) responsible for Tennessee operations;

(e)

information about the structure of the business organization and,


where applicable, a copy of any articles of incorporation, partnership
agreement or by-laws of the service provider, and a copy of any
license to do business in Tennessee;

(f)

repair and maintenance information including the name, address and


telephone number of a Tennessee contact person responsible for and
knowledgeable about the providers operations;

(g)

a list of other states where the provider is authorized to operate and a


list of those states which have denied any requested authority;

136

Case: 16-5149

(2)

(3)

Document: 17

Filed: 04/11/2016

Page: 155

(h)

such other information as the Authority may require;

(i)

a description of the category and types of services to be offered, the


facilities and arrangements to be made available to end users and/or
carriers, where applicable, and the geographic areas in which the
services shall be offered.

After public notice and hearing, the Authority shall grant a certificate of
convenience and necessity to a Competing Local Telecommunications
Service Provider if, after examining the evidence presented, the Authority
finds:
(a)

the applicant possesses sufficient managerial, financial and technical


abilities to provide the applied for services;

(b)

the applicant has demonstrated that it will adhere to all applicable


Authority policies, rules and orders.

Conditions of Certification
(a)

Certificates awarded to Competing Local Telecommunications


Service Providers shall designate those incumbent local exchange
companies which serve those areas in which the competing provider
intends to operate. If the competing provider wishes to expand into
areas served by other incumbent providers, the competing provider
must file a petition to modify the certificate. The Authority shall act
upon that petition within sixty (60) days of filing.

(b)

With entry into the local exchange communications markets in


Tennessee comes basic obligations and responsibilities to serve the
public interest. Therefore, all Competing Telecommunications Service
Providers providing basic local exchange telephone service or its
equivalent shall either directly or through arrangements with other
carriers or companies:
1.

Provide access to 911 and E 911 emergency service.

2.

Provide white page directory listings and directory assistance.

3.

Provide consumer access to and support for the Tennessee


Relay Center in the same manner as incumbent local exchange
telephone companies.

137

Case: 16-5149

(c)

Document: 17

Filed: 04/11/2016

Page: 156

4.

Provide free blocking service for 900, 976 type services in


accordance with Authority policy.

5.

Provide Lifeline and Link-up services to qualifying citizens of


this state.

6.

Provide educational discounts in existence as of June 6, 1995.

All telecommunications service providers certified pursuant to this


rule shall at a minimum be required to:
1.

Provide support for universal service in a manner determined


by the Authority. This requirement shall not be construed as
prohibiting the granting of a certificate before the universal
service issues are determined by the Authority.

2.

Provide interconnection with other certificated carriers or


Authority authorized carriers on a nondiscriminatory basis
under reasonable terms and conditions.

3.

Comply with Authority basic service standards as defined in


any applicable rules and decisions of the Authority.

4.

Provide equal access to authorized inter-and intraLATA long


distance providers, unless otherwise exempted by the Authority.

1220-4-8-.05

Abandonment or Transfer of a Certificate.

(1)

Abandonment of a certificate. Any Local Telecommunications Service


Provider, except a telecommunications service provider with carrier of last
resort obligations, which plans to discontinue providing all local services
under its certificate in any or all local calling areas shall file formal
notification with the Authority and all its affected customers by direct mail
ninety (90) days in advance of the last anticipated day of service.

(2)

Transfer of a certificate. The transfer of a certificate or any services by any


Local Telecommunications Services Provider shall be approved by the
Authority so long as the new provider meets the requirements of T.C.A. 654-201(c). The Authority shall render a decision regarding the transfer of the
certificate, whether in whole or in part, within sixty (60) days of the filing
date of the petition to transfer. If the Authority determines, based on the
information presented, that the recipient is financially and technically

138

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 157

capable of providing the service, and will adhere to all applicable Authority
rules, policies and orders, the Authority shall approve the transfer of the
certificate.
1220-4-8-.06
Providers.
(1)

Inspection Fees for Competing Telecommunications Service

All Competing Telecommunications Service Providers shall be subject to the


provisions of T.C.A., Title 65, Chapter 4, Part 3, and shall pay any fees
required by that part.

1220-4-8-.07 Tariff and Pricing Requirements for Competing Local


Telecommunications Service Providers Local Service.
(1)

Tariff Requirements
(a)

(2)

Competing Telecommunications Service Providers providing local


service unless otherwise exempted by the Authority from these
requirements at the time of certification, shall be required to comply
with the following:
1.

File informational tariffs describing all offered services;

2.

file lists of individual service prices or a price range with the


highest price listed to be no greater than twenty-five percent
(25%) above the lowest price in the range for all services
offered;

3.

file tariffs for any interconnection arrangements entered into as


described in Rule 1220-4-8-.10.

(b)

Any tariff filed under this rule sub-section shall constitute notice to
customers of the terms and conditions under which the services shall
be provided, and shall be binding upon the providers subject to this
rule and their customers. Any such tariff shall be nondiscriminatory.

(c)

Tariffs and price lists for new services shall be effective on the tariff
or price filing date as defined in this rule chapter.

Pricing
(a)

A price may be decreased at any time, if such decrease is within the


range of prices for a service on file with the Authority.

139

Case: 16-5149

(3)

Document: 17

Filed: 04/11/2016

Page: 158

(b)

Price increases for all local services, that are within the range of prices
for a service on file with the Authority shall become effective thirty
(30) days following notification by direct mail to affected customers
or by publication of a notice for the increase in a newspaper of general
circulation in the affected service area. New price increases that are
not within such range shall not become effective until a new
informational tariff is filed with the Authority.

(c)

Withdrawal of a non-basic local service offering shall be permitted on


thirty (30) days notice to the Authority, and on thirty (30) days direct
or public notification to customers.

(d)

Withdrawal of a basic local service offering may be permitted after


ninety (90) days prior notice to the Authority, and after sixty (60) days
prior notice to individual customers by direct mail or by publication of
a notice in a newspaper of general circulation in the affected service
area. Any such withdrawal shall be approved by the Authority before
implementation.

Special Contract Provisions


(a)

Special contracts and any tariffs for interconnection services shall


comply with the provisions of Rule 1220-4-8-.10.

(b)

Special contracts with end users which are not unduly discriminatory
shall be permitted. However, the Authority shall be notified of the
existence of the contract upon execution, and shall be provided with a
written summary of the contract provisions including a description of
the services provided. The Authority shall make a copy of the
summary available for inspection by any interested party. A copy of
the contract shall be made available for Authority review upon
request.

(c)

Any special pricing package, contract, or discount shall be made


available to any similarly situated customer satisfying the required
terms and conditions of the special agreement upon request.

140

Case: 16-5149

1220-4-8-.08

Document: 17

Filed: 04/11/2016

Page: 159

Reserved.

1220-4-8-.09 Consumer Complaints, Anti-Competitive Complaints, and


Violations of Applicable State Law and Authority Rules.
(1)

All Competing Telecommunications Service Providers shall comply with


Authority Rule 1220-4-2-.09, all applicable statutes, and Authority policies
regarding customer complaints and provisions of this rule.

(2)

Anti-competitive provisions.
(a)

Upon filing of any increase in a non-basic rate or establishment of a


new non-basic service by a Incumbent Local Exchange Telephone
Company, any interested party may file a complaint with the
Authority alleging that this rate is priced below its long run
incremental cost in violation of the provisions of these rules. The
Authority shall require the Incumbent Local Exchange Telephone
Company to file cost support justifying the challenged rate with an
opportunity for the party challenging the rate to demonstrate that it
violates the price floor requirements. The Authority shall allow the
rate to go into effect but shall resolve the complaint within thirty (30)
days of its receipt, and may order the adjustment of the rate if found to
be in violation of price floor requirements and thus anti-competitive.

(b)

Upon the complaint of any interested party that any


telecommunications service provider has violated any of the anticompetitive or discriminatory rate prohibitions found in applicable
rules or statutes, the Authority shall investigate the complaint and may
convene a contested case proceeding if such complaint is found to
have merit. However, the complaining party must allege with
specificity the action by the telecommunications service provider that
appears to be in violation of said prohibitions or the complaint is
subject to dismissal by the Authority.

(c)

All Incumbent Local Exchange Telephone Companies subject to price


cap regulation shall be required to do the following:
1.

Utilize consistent cost methods so that it does not apply


different unit costs to network capabilities that are used to
furnish monopoly services than it applies to those used to
furnish competitive services.

141

Case: 16-5149

(d)

(3)

Document: 17

Filed: 04/11/2016

Page: 160

2.

Impute to its competing service(s) the tariffed rates for essential


elements utilized by Competing Telecommunications Service
Providers plus the total long run incremental costs of all other
elements composing the Incumbent Local Exchange Telephone
Companys competing service(s).

3.

Adhere to all other anti-competitive provisions found in this


Rule Chapter pertaining to the provision of nondiscriminatory
interconnection with other providers under reasonable terms
and conditions, the compliance with price floor and cost
imputation restrictions on the pricing of competitive services,
and compliance with applicable tariff and special contract
provisions.

Any party, service provider, or consumer may file a discrimination


claim with the Authority regarding any service or rate. Any similarly
situated customer (individual or other provider) who is denied upon
request the same contractual provisions or rate or service offered to
other customers may file a complaint with the Authority for
appropriate resolution. Such resolution may include imposition of a
fine for willful violations.

Violation of state law or the Authoritys rules applicable to providers


certificated pursuant to this Rule Chapter may result in the imposition of
fines or the revocation of the providers certificate in accordance with the
following procedure.
(a)

If the Authority has cause to believe that any provider certificated


pursuant to this rule chapter is in violation of an Authority rule,
applicable decision or state law, it shall notify the provider of the
alleged violation and include copies of any documents supporting the
alleged violation.

(b)

The provider shall have thirty (30) days from receipt of the notice of
violation to provide a written response to the Authority.

(c)

If after receipt and review of the response it is found to be


unsatisfactory, the Authority may issue a Show Cause Order pursuant
to T.C.A. 65-2-106.

(d)

After hearing and upon determination that a provider is in violation of


a statute, Authority rules or applicable decisions, the Authority may
142

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 161

impose fines, revoke the providers certificate or take any other


appropriate action as authorized by law.
1220-4-8-.10

Reserved.

1220-4-8-.11

Reserved.

1220-4-8-.12

Reserved.

1220-4-8-.13

Enhanced 911 Service Requirements After Deregulation.

(1)

The purpose of this rule chapter is to provide specific rules for Incumbent
Local Telecommunications Service Providers and Competing Local
Telecommunications Service Providers to ensure the continuation of reliable
and affordable Enhanced 911 Emergency Service after deregulation occurs
as provided for in T.C.A. 7-86-101, et seq.

(2)

For a period of four (4) years from June 6, 1995, the date of the Act, within
each Emergency Communications District, the Incumbent Enhanced 911
Emergency Service Provider shall continue to offer Enhanced 911 service
and shall:
(a)

Provide an Enhanced 911 Tandem Central Office to:


1.

Provide Enhanced 911 trunks to each Public Service Answering


Point (PSAP).

2.

Deliver Automatic Number Identification (ANI) with each 911


call.

3.

Provide Selective Routing to route 911 calls to the proper


PSAP.

(b)

Provide Automatic ECD Routing.

(c)

Provide a Data Management System (DMS) to provide Automatic


Location Identification (ALI) with each Enhanced 911 call.

(d)

Offer Interconnection Agreements to all other Incumbent Local


Telecommunications Service Providers, Competing Local
Telecommunications Service Providers and Shared Tenant Service
Providers which will provide for:

143

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 162

1.

The connection of dedicated 911 Centralized Automatic


Message Accounting (CAMA) trunks to the Enhanced 911
Tandem Central office.

2.

The acceptance of Automatic Number Identification (ANI)


associated with the Enhanced 911 call.

3.

The acceptance of the daily update of Automatic Location


Identification (ALI) database information by the DMS.

4.

The assurance of confidentiality in the use of the ALI data-base


information so provided and a stipulation that such data-base
will be restricted to providing emergency response to inprogress Enhanced 911 calls.

5.

Fair and equitable agreements with the other Service Providers


referenced above based on the Incumbent Enhanced 911
Service Provider billing the ECD for its portion of the
Enhanced 911 service as provided for in the tariffs, and the
other service providers billing the ECD for their portions of the
Enhanced 911 service.

(e)

Provide an Enhanced 911 trouble-reporting center for the reporting of


all Enhanced 911 repair, maintenance, data-base and technical
problems by an ECD and be responsible for determining and
dispatching the trouble report to the appropriate Local Service
Provider for correction.

(f)

Maintain Enhanced Universal Emergency Number Service (E911)


tariffs at the rate on file with the Authority consistent with price
regulations and the requirements of the Telecommunications Reform
Act of 1995.

(g)

Bill, collect and remit the Enhanced 911 fees associated with its
subscribers (including nonfacilities based resellers) to the appropriate
Emergency Communications District unless authorized by an
Emergency Communications District to do otherwise on a customer
specific basis; and to provide a mutually agreeable means of auditing
the subscriber base by number and type by the Emergency
Communications District auditor.

144

Case: 16-5149

(3)

(4)

Document: 17

Filed: 04/11/2016

Page: 163

All other Incumbent Local Telecommunications Service Providers,


Competing Local Telecommunications Service Providers and Shared Tenant
Service Providers providing basic local exchange telephone service or its
equivalent shall enter into Interconnection Agreements with the Incumbent
Enhanced 911 Emergency Service Provider to provide Emergency 911
Service and shall:
(a)

Provide dedicated CAMA trunks to the Incumbent Enhanced 911


Service Providers designated demarcation point in the network.

(b)

Provide Automatic Number Identification (ANI) of the 911 caller with


each 911 call.

(c)

Provide Automatic ECD Routing.

(d)

Provide an initial download and daily down-loads of existing


subscribers, new subscribers, changes to subscribers information and
the disconnection of existing subscribers to the Incumbent Enhanced
911 Service Providers DMS system.

(e)

Bill, collect and remit the Enhanced 911 fees associated with its
subscribers (including nonfacilities based resellers) to the appropriate
Emergency Communications District unless authorized by an
Emergency Communications District to do otherwise on a customer
specific basis; and to provide a mutually agreeable means of auditing
the subscriber base by number and type by the Emergency
Communications District auditor.

(f)

Bill the ECD for its reasonable cost to provide E-911 Service to the
District for its subscribers.

After June 6, 1999, the incumbent Enhanced 911 Service Provider or the
dominant Local Telecommunications Service Provider within an ECD
territory shall be required to offer Enhanced 911 service as provided for in
Paragraph (2) above to the ECD at a reasonable cost until such time as the
Authority determines that an ECD has a minimum of two (2) or more
Enhanced 911 Service Provider alternatives based on cost, service and
support to choose Enhanced 911 service from within the ECD territory.

145

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 164

OTHER PUBLICATIONS
Tenn. Op. Atty. Gen. No. 07-38 (Tenn.A.G.), 2007 WL 1054077

146

Case: 16-5149

Document: 17

147

Filed: 04/11/2016

Page: 165

Case: 16-5149

Document: 17

148

Filed: 04/11/2016

Page: 166

Case: 16-5149

Document: 17

149

Filed: 04/11/2016

Page: 167

Case: 16-5149

Document: 17

150

Filed: 04/11/2016

Page: 168

Case: 16-5149

Document: 17

151

Filed: 04/11/2016

Page: 169

Case: 16-5149

Document: 17

152

Filed: 04/11/2016

Page: 170

Case: 16-5149

Document: 17

Tenn. Op. Atty. Gen. No. U95-013

153

Filed: 04/11/2016

Page: 171

Case: 16-5149

Document: 17

154

Filed: 04/11/2016

Page: 172

Case: 16-5149

Document: 17

155

Filed: 04/11/2016

Page: 173

Case: 16-5149

Document: 17

156

Filed: 04/11/2016

Page: 174

Case: 16-5149

Document: 17

157

Filed: 04/11/2016

Page: 175

Case: 16-5149

Document: 17

TECB Policy 23

158

Filed: 04/11/2016

Page: 176

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 177

BellSouth Telecommunications, Inc. General Subscriber Services Tariff


A1. Definition of Terms

159

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 178

BellSouth Telecommunications, Inc. General Subscriber Services Tariff


A13. Miscellaneous Service Arrangements

160

Case: 16-5149

Document: 17

161

Filed: 04/11/2016

Page: 179

Case: 16-5149

Document: 17

162

Filed: 04/11/2016

Page: 180

Case: 16-5149

Document: 17

163

Filed: 04/11/2016

Page: 181

Case: 16-5149

Document: 17

164

Filed: 04/11/2016

Page: 182

Case: 16-5149

Document: 17

165

Filed: 04/11/2016

Page: 183

Case: 16-5149

Document: 17

166

Filed: 04/11/2016

Page: 184

Case: 16-5149

Document: 17

167

Filed: 04/11/2016

Page: 185

Case: 16-5149

Document: 17

168

Filed: 04/11/2016

Page: 186

Case: 16-5149

Document: 17

169

Filed: 04/11/2016

Page: 187

Case: 16-5149

Document: 17

170

Filed: 04/11/2016

Page: 188

Case: 16-5149

Document: 17

171

Filed: 04/11/2016

Page: 189

Case: 16-5149

Document: 17

172

Filed: 04/11/2016

Page: 190

Case: 16-5149

Document: 17

173

Filed: 04/11/2016

Page: 191

Case: 16-5149

Document: 17

174

Filed: 04/11/2016

Page: 192

Case: 16-5149

Document: 17

175

Filed: 04/11/2016

Page: 193

Case: 16-5149

Document: 17

176

Filed: 04/11/2016

Page: 194

Case: 16-5149

Document: 17

177

Filed: 04/11/2016

Page: 195

Case: 16-5149

Document: 17

178

Filed: 04/11/2016

Page: 196

Case: 16-5149

Document: 17

179

Filed: 04/11/2016

Page: 197

Case: 16-5149

Document: 17

180

Filed: 04/11/2016

Page: 198

Case: 16-5149

Document: 17

181

Filed: 04/11/2016

Page: 199

Case: 16-5149

Document: 17

182

Filed: 04/11/2016

Page: 200

Case: 16-5149

Document: 17

183

Filed: 04/11/2016

Page: 201

Case: 16-5149

Document: 17

184

Filed: 04/11/2016

Page: 202

Case: 16-5149

Document: 17

185

Filed: 04/11/2016

Page: 203

Case: 16-5149

Document: 17

186

Filed: 04/11/2016

Page: 204

Case: 16-5149

Document: 17

187

Filed: 04/11/2016

Page: 205

Case: 16-5149

Document: 17

188

Filed: 04/11/2016

Page: 206

Case: 16-5149

Document: 17

189

Filed: 04/11/2016

Page: 207

Case: 16-5149

Document: 17

190

Filed: 04/11/2016

Page: 208

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 209

TENN. GEN. ASSEMBLY, JUDICIARY COMMITTEE


TRANSCRIPT OF FEBRUARY 14, 2012, SENATE BILL 2140
TENNESSEE GENERAL ASSEMBLY
JUDICIARY COMMITTEE
FEBRUARY 14, 2012
SENATE BILL 2140
(HOUSE BILL 2809)
HTTP://TNGA.GRANICUS.COM/MEDIAPLAYER.PHP?VIEW_ID=196&C
LIP_ID=4898&META_ID=89943
Chairman Beavers:

Senate Bill 2140.

Senator Brian
Kelsey:

Thank you Madam Chairman, and if I remember correctly,


we had a motion and a second on the Bill and then we had
adopted Amendment No. 1,
Thats right.

Chairman Beavers:
Senator Brian
Kelsey:

Chairman Beavers:

Which has now been included in a larger amendment that I


have and I believe Senator Yager has another amendment
that I am hoping is included in this comprehensive
amendment I have as well, so if, if Senator Barnes would,
would withdraw his motion on that amendment, I will, I
will incorporate that in a larger one.
Okay.

Senator Brian
Kelsey:
Madam Secretary:

Okay, okay, and

Senator Brian
Kelsey:
Chairman Beavers:

Ill defer to Senator Yager Madam Chairman.

Senator Ken Yager:

Madam Chairman, I believe I have filed an amendment


with the Committee on this subject. Madam Chairman, if
I could get it on the floor, what I would like to do is Id
like to put it behind Senator Kelseys amendment because
I think that Senator Kelseys amendment will take care of
mine, but I would, Id like to just get it behind his and then
we can see.

Amendment No. 1 is withdrawn.

Senator Yager.

191

Case: 16-5149

Chairman Beavers:
Senator Brian
Kelsey:
Senator Ken Yager:

Document: 17

Filed: 04/11/2016

Page: 210

Okay. Senator Kelsey. And if you could give us the


drafting code on that amendment.
Madam Chairman, it would be

Chairman Beavers:

Are you talking about my amendment Madam Chairman?


Did you ask for the drafting code on my
Whichever one were going to talk about first.

Senator Ken Yager:

Senator Kelsey.

Senator Brian
Kelsey:
Chairman Beavers:

Madam Chairman, its being passed out right now.

Senator Brian
Kelsey:
Chairman Beavers:

And the drafting code is 01310471.

Senator Brian
Kelsey:
Chairman Beavers:

Its being, its being passed out

Senator Brian
Kelsey:
Chairman Beavers:

As we speak. And Im comparing it right now to make


sure it includes Senator Yagers language.
Senator Bell.

Senator Mike Bell:

Thank you Madam Chair, and while, while Senator Kelsey


and Senator Yager are looking to make sure their
amendments line up, I just, I do want to publicly thank
Senator Kelsey for working with myself, for working with,
especially the State 911Board and the local counties to, to
address their concerns. I appreciate the work that hes put
into this Bill and also the amendment to make sure those
concerns are taken care of.
Senator Yager.

Chairman Beavers:
Senator Ken Yager:

Okay.

Thats not the number we

Okay.

Madam Chairman, I would echo what my colleague has


said. I think I, Im not sure Ive expressed it to the
Committee but I surely shared it with Senator Kelsey, that
I had some real concerns about his Bill that had been
shared with ______ my constituents, the Directors of the
911 organizations in my counties. Ive since had the
opportunity to meet with, to talk to them and it, it,
accordingly, I had filed my amendment that I referred to

192

Case: 16-5149

Chairman Beavers:
Senator Brian
Kelsey:

Document: 17

Filed: 04/11/2016

Page: 211

earlier, but it appears that Senator Kelseys amendment


does incorporate my proposed amendment and takes care
of my concern because I was very concerned that your,
your 911 organizations might lose their, their right to
recover fees for services from a party that might be
obligated to pay those fees, so I think it takes care of it and
Im satisfied.
Okay, Senator Kelsey.
Thank you Madam Chairman. Ill just go through this
comprehensive amendment briefly, section by section.
Section 1, 1-3-119, a new section, (a) and (b) are exactly
the same from the original Bill and that is the point of the
Bill, really, is to, to ensure that we are not creating any
new private rights of action unless we expressly do so. (c)
is, includes the number of savings clauses. Number (1)
says that this Bill will only apply prospectively. In other
words, it will only, it will not effect any private rights of
action that already exists at the date of passage of this Bill.
Number (2) incorporates Senator Barnes amendment
from the last time, and that is a savings clause for any
common law actions. Any actions that are brought under
common law will not be effected by this Bill in any way
and, and it includes actions that are brought under multiple
counts as Senator Barnes had brought up the last time we
discussed this Bill. Those would live on if they are
common law actions, even if one particular count were,
were somehow struck down by this Bill. Section 3, since
the intention there was to, to have a savings clause for
negligence per se, and Senator Overbey had brought up
some concerns about potentially conflicting language in
section 3 and back in (a) and (b), we just made it a lot
simpler here. It just simply says utilize the doctrine, the
doctrine of negligence, per se. Section 4 is the section
from Senator Yagers amendment thats already been
described. And then, actually, (d) now says and explains
that theres nothing in the section that, of course, will
impair any State, State or regulatory or licensing agency
from enforcing its own rules and that, that, of course,
again was, was the point of this Bill in the first place, is

193

Case: 16-5149

Chairman Beavers:

Senator Brian
Kelsey:
Chairman Beavers:

Document: 17

Filed: 04/11/2016

Page: 212

that theres certain statutes that are passed that have


regulatory enforcement, some of them have criminal
enforcement and those, those will continue to exist, but the
Legislature, were hoping to make clear with this statute
that the Legislature, when it is providing a civil right of
action, that it does so explicitly. That was actually the
very conversation that was brought up by Senator
Campfield earlier when we were discussing one of Senator
Barnes actions on synthetic drugs. Thats, that Bill very
explicitly creates a civil right of action. So, with that, I
would move an option of this as a new Amendment 1.
Before we do that Senator Kelsey, we either need to
reconsider our action since Amendment No. 1 had already
been filed with the Clerk, we need to reconsider our action
or just let it go to the Floor. Make this No. 2 and we can
withdraw it on the Floor.
I would rather us go ahead and reconsider our actions if
thats okay,
Okay.

Senator Brian
Kelsey:
Chairman Beavers:

And Ill make that motion since I voted in favor of it.

Chairman Beavers:
Many:

Seconded by Senator Bell. All in favor of reconsidering


our action say aye.
Aye.

Chairman Beavers:

Opposed.

Chairman Beavers:

Okay. And then we need a motion to withdraw.

Chairman Beavers:

Okay. Senator Barnes makes a motion to withdraw.


Senator Bell seconds. All in favor of withdrawing
Amendment No. 1, say aye.
Aye.

Many:
Chairman Beavers:

Okay. Do I hear a second?

Many:

Amendment No. 1 is withdrawn. We have a motion on


what will now be Amendment No. 1 by Senator Kelsey.
Motion by Senator Kelsey. Seconded by Bell. All in
favor of Amendment No. 1 say aye.
Aye.

Chairman Beavers:

Opposed.

194

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 213

Chairman Beavers:

Okay. Amendment No. 1 is adopted. Senator Kelsey.

Chairman Beavers:

Okay. Senator Yager.

Senator Ken Yager:

[Unintelligible]

Chairman Beavers:

Okay, Senator Yagers proposed amendment is


withdrawn. Were back on, Senator Overbey.
Thank you Madam Chairman and first of all I want to, to
commend the, the gentleman from, from Shelby for his
patience and his continued work on, on this Bill and I
know he believes in it very strongly and has worked on it
and certainly with Amendment 1, it is a better Bill than, in
my opinion, than it was at the time it was filed. I continue
to have reservations about the Bill, not in the intent, but in
trying to, to put that intent on paper. Trying to put it into
black and white. Certainly, as I indicated to the gentleman
from Shelby County when he talked with me about this, I
think after Finance Committee initially, the, the intent I, I
agree with. I dont, Im not going to be able to vote in
favor of this Bill for two or three reasons. One, I continue,
just like when we consider the codifying the unclean
hands doctrine, when you start putting a lot of things in
code that the courts traditionally deal with, I think you run
into unintended consequences and Im very concerned
about unintended consequences from adoption of this Bill
as, as amended. I continue to have difficulties with the
parts of the Bill dealing with imposed and affirmative duty
because I think everything we do here imposes a duty
upon somebody. Thats probably overstated. Most
everything we do here I think, imposes a duty. Why else
are we passing statutes but to tell folks here is the law,
here is your duty, and I think thats exactly what were
doing and now to say we have to put that language in
every statute we pass so that the courts will say there was
an affirmative duty, strikes me as problematical. I know
the mov, the proponent of the Bill, the sponsor feels
differently as does, Im sure, the folks who seconded it
and I respect your opinions, but that, respectfully, is my
opinion, that we are in fact imposing duties when we enact
legislation. So I, I have that reservation. Finally, I
remember when the gentleman from Shelby first brought

Senator Doug
Overbey:

195

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 214

this Bill forward, he said, well this shouldnt be a problem


because similar language is in the Board of Claims statute,
and I searched and searched for it and finally he directed
me to it, and, and clearly there is some language in the
Board of Claims statute, T.C.A. 9-8-307, which in the
pocket part goes on for seven pages. Its a, its a long
statute, and in letter (n), it does say the claimant must
prove under this subdivision A(1)(n), that the General
Assembly expressly conferred a private right of action in
favor of the claimant against the State for the States
violation of the particular statutes provision, but even that
language only dealt with claims for negligent deprivation
of statutory rights created under Tennessee law, so it
made, it made abundant sense to put that saying in, in that
provision, but it only dealt with a small fraction of the
entire statute. And probably, I would feel better about this
Bill if it said no more than a plaintiff must prove that the
General Assembly expressly conferred a private right of
action in favor of the plaintiff, per, period. I could
probably go along with that. But I think a lot of the
verbiage that has been added, especially that including
imposing affirmative duty of, of care and really not
knowing where, where this takes us continues to trouble
me. Finally, there is a recent Supreme Court case from the
State of Tennessee and Senator Kelsey, you may need to,
need to help me with it. I thought I had it in my notebook.
I dont. The Brown case I believe from 2010, 2011, 2010
or 2011 that developed a three-pronged test to, to
determine whether a statute creates a private right of
action and in that case, the Supreme Court found there was
no private right of action in the statute before the Court. I
was unaware of that Supreme Court decision when
Senator Kelsey and I had our first discussion about, about
this Bill and I think that case strikes a, a balance and it
shows that the Court, courts in this State have some
standards to apply in determining whether a statute creates
a private right of action and there is a three-prong test. A
pla, a plaintiff must establish all three of those prongs and
in that case, the Court found the plaintiff had failed to so
establish that there was a private right of action but it
196

Case: 16-5149

Chairman Beavers:
Chairman Beavers:

Document: 17

Filed: 04/11/2016

Page: 215

seems to be a well reasoned decision in striking a proper


balance and in other words, may be saying we dont need
to codify what the court has already, has already
articulated and in fact, this statute, this language would go
beyond that three-prong test. Were not just codifying the
three-prong test, were saying something different, so I
actually think this statute will likely create more litigation
than it will cease, and I know that was the sponsors
reason for bringing it. He wants to, to cut back on
litigation, but I think because of the Supreme Court has
clearly articulated the three-prong test, has struck a proper
balance, then if we try to take that and put it into statute,
were actually going to create more, more litigation.
Those are my, my thoughts on, on it and why, why I
cannot, cannot support it, but I do compliment you on your
work and your willingness to talk and listen and make
improvements on it.
Any other comments?

Madam Secretary:

Were voting on Senate Bill 2140 as amended. Madam


Secretary, call the roll.
Senator Barnes.

Senator Barnes:

Aye.

Madam Secretary:

Senator Barnes votes aye. Senator Bell.

Senator Mike Bell:

Aye.

Madam Secretary:

Senator Bell votes aye. Senator Campfield.

Senator Campfield:

Aye.

Madam Secretary:

Senator Campfield votes aye. Senator Ford.


[No answer.]

Madam Secretary:

Senator Kelsey.

Senator Brian
Kelsey:
Madam Secretary:

Aye.

Senator Marrero:

No.

Madam Secretary:

Senator Marrero votes no. Senator Overbey.

Senator Doug

Pass.

Senator Kelsey votes aye. Senator Marrero.

197

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 216

Overbey:
Madam Secretary:

Senator Overbey passes. Senator Yager.

Senator Ken Yager:

Aye.

Madam Secretary:

Senator Yager votes aye. Chairman Beavers.

Chairman Beavers:

Aye.

Madam Secretary:
Chairman Beavers:

Chairman Beavers votes aye. Six ayes, one no, and two,
well, one pass and one absent.
Okay. Senate Bill 2140 goes to Calendar Committee.

Chairman Beavers:

Senate Bill 2140.

Senator Brian
Kelsey:

Thank you Madam Chairman, and if I remember correctly,


we had a motion and a second on the Bill and then we had
adopted Amendment No. 1,
Thats right.

Chairman Beavers:
Senator Brian
Kelsey:

Chairman Beavers:

Which has now been included in a larger amendment that I


have and I believe Senator Yager has another amendment
that I am hoping is included in this comprehensive
amendment I have as well, so if, if Senator Barnes would,
would withdraw his motion on that amendment, I will, I
will incorporate that in a larger one.
Okay.

Senator Brian
Kelsey:
Madam Secretary:

Okay, okay, and

Senator Brian
Kelsey:
Chairman Beavers:

Ill defer to Senator Yager Madam Chairman.

Senator Ken Yager:

Madam Chairman, I believe I have filed an amendment


with the Committee on this subject. Madam Chairman, if
I could get it on the floor, what I would like to do is Id
like to put it behind Senator Kelseys amendment because
I think that Senator Kelseys amendment will take care of
mine, but I would, Id like to just get it behind his and then
we can see.
Okay. Senator Kelsey. And if you could give us the
drafting code on that amendment.

Chairman Beavers:

Amendment No. 1 is withdrawn.

Senator Yager.

198

Case: 16-5149

Senator Brian
Kelsey:
Senator Ken Yager:

Document: 17

Filed: 04/11/2016

Page: 217

Madam Chairman, it would be

Chairman Beavers:

Are you talking about my amendment Madam Chairman?


Did you ask for the drafting code on my
Whichever one were going to talk about first.

Senator Ken Yager:

Senator Kelsey.

Senator Brian
Kelsey:
Chairman Beavers:

Madam Chairman, its being passed out right now.

Senator Brian
Kelsey:
Chairman Beavers:

And the drafting code is 01310471.

Senator Brian
Kelsey:
Chairman Beavers:

Its being, its being passed out

Senator Brian
Kelsey:
Chairman Beavers:

As we speak. And Im comparing it right now to make


sure it includes Senator Yagers language.
Senator Bell.

Senator Mike Bell:

Thank you Madam Chair, and while, while Senator Kelsey


and Senator Yager are looking to make sure their
amendments line up, I just, I do want to publicly thank
Senator Kelsey for working with myself, for working with,
especially the State 911Board and the local counties to, to
address their concerns. I appreciate the work that hes put
into this Bill and also the amendment to make sure those
concerns are taken care of.
Senator Yager.

Chairman Beavers:
Senator Ken Yager:

Okay.

Thats not the number we

Okay.

Madam Chairman, I would echo what my colleague has


said. I think I, Im not sure Ive expressed it to the
Committee but I surely shared it with Senator Kelsey, that
I had some real concerns about his Bill that had been
shared with ______ my constituents, the Directors of the
911 organizations in my counties. Ive since had the
opportunity to meet with, to talk to them and it, it,
accordingly, I had filed my amendment that I referred to
earlier, but it appears that Senator Kelseys amendment
does incorporate my proposed amendment and takes care

199

Case: 16-5149

Chairman Beavers:
Senator Brian
Kelsey:

Document: 17

Filed: 04/11/2016

Page: 218

of my concern because I was very concerned that your,


your 911 organizations might lose their, their right to
recover fees for services from a party that might be
obligated to pay those fees, so I think it takes care of it and
Im satisfied.
Okay, Senator Kelsey.
Thank you Madam Chairman. Ill just go through this
comprehensive amendment briefly, section by section.
Section 1, 1-3-119, a new section, (a) and (b) are exactly
the same from the original Bill and that is the point of the
Bill, really, is to, to ensure that we are not creating any
new private rights of action unless we expressly do so. (c)
is, includes the number of savings clauses. Number (1)
says that this Bill will only apply prospectively. In other
words, it will only, it will not effect any private rights of
action that already exists at the date of passage of this Bill.
Number (2) incorporates Senator Barnes amendment
from the last time, and that is a savings clause for any
common law actions. Any actions that are brought under
common law will not be effected by this Bill in any way
and, and it includes actions that are brought under multiple
counts as Senator Barnes had brought up the last time we
discussed this Bill. Those would live on if they are
common law actions, even if one particular count were,
were somehow struck down by this Bill. Section 3, since
the intention there was to, to have a savings clause for
negligence per se, and Senator Overbey had brought up
some concerns about potentially conflicting language in
section 3 and back in (a) and (b), we just made it a lot
simpler here. It just simply says utilize the doctrine, the
doctrine of negligence, per se. Section 4 is the section
from Senator Yagers amendment thats already been
described. And then, actually, (d) now says and explains
that theres nothing in the section that, of course, will
impair any State, State or regulatory or licensing agency
from enforcing its own rules and that, that, of course,
again was, was the point of this Bill in the first place, is
that theres certain statutes that are passed that have
regulatory enforcement, some of them have criminal

200

Case: 16-5149

Chairman Beavers:

Senator Brian
Kelsey:
Chairman Beavers:

Document: 17

Filed: 04/11/2016

Page: 219

enforcement and those, those will continue to exist, but the


Legislature, were hoping to make clear with this statute
that the Legislature, when it is providing a civil right of
action, that it does so explicitly. That was actually the
very conversation that was brought up by Senator
Campfield earlier when we were discussing one of Senator
Barnes actions on synthetic drugs. Thats, that Bill very
explicitly creates a civil right of action. So, with that, I
would move an option of this as a new Amendment 1.
Before we do that Senator Kelsey, we either need to
reconsider our action since Amendment No. 1 had already
been filed with the Clerk, we need to reconsider our action
or just let it go to the Floor. Make this No. 2 and we can
withdraw it on the Floor.
I would rather us go ahead and reconsider our actions if
thats okay,
Okay.

Senator Brian
Kelsey:
Chairman Beavers:

And Ill make that motion since I voted in favor of it.

Chairman Beavers:
Many:

Seconded by Senator Bell. All in favor of reconsidering


our action say aye.
Aye.

Chairman Beavers:

Opposed.

Chairman Beavers:

Okay. And then we need a motion to withdraw.

Chairman Beavers:

Okay. Senator Barnes makes a motion to withdraw.


Senator Bell seconds. All in favor of withdrawing
Amendment No. 1, say aye.
Aye.

Many:
Chairman Beavers:

Okay. Do I hear a second?

Many:

Amendment No. 1 is withdrawn. We have a motion on


what will now be Amendment No. 1 by Senator Kelsey.
Motion by Senator Kelsey. Seconded by Bell. All in
favor of Amendment No. 1 say aye.
Aye.

Chairman Beavers:

Opposed.

Chairman Beavers:

Okay. Amendment No. 1 is adopted. Senator Kelsey.

201

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 220

Chairman Beavers:

Okay. Senator Yager.

Senator Ken Yager:

[Unintelligible]

Chairman Beavers:

Okay, Senator Yagers proposed amendment is


withdrawn. Were back on, Senator Overbey.
Thank you Madam Chairman and first of all I want to, to
commend the, the gentleman from, from Shelby for his
patience and his continued work on, on this Bill and I
know he believes in it very strongly and has worked on it
and certainly with Amendment 1, it is a better Bill than, in
my opinion, than it was at the time it was filed. I continue
to have reservations about the Bill, not in the intent, but in
trying to, to put that intent on paper. Trying to put it into
black and white. Certainly, as I indicated to the gentleman
from Shelby County when he talked with me about this, I
think after Finance Committee initially, the, the intent I, I
agree with. I dont, Im not going to be able to vote in
favor of this Bill for two or three reasons. One, I continue,
just like when we consider the codifying the unclean
hands doctrine, when you start putting a lot of things in
code that the courts traditionally deal with, I think you run
into unintended consequences and Im very concerned
about unintended consequences from adoption of this Bill
as, as amended. I continue to have difficulties with the
parts of the Bill dealing with imposed and affirmative duty
because I think everything we do here imposes a duty
upon somebody. Thats probably overstated. Most
everything we do here I think, imposes a duty. Why else
are we passing statutes but to tell folks here is the law,
here is your duty, and I think thats exactly what were
doing and now to say we have to put that language in
every statute we pass so that the courts will say there was
an affirmative duty, strikes me as problematical. I know
the mov, the proponent of the Bill, the sponsor feels
differently as does, Im sure, the folks who seconded it
and I respect your opinions, but that, respectfully, is my
opinion, that we are in fact imposing duties when we enact
legislation. So I, I have that reservation. Finally, I
remember when the gentleman from Shelby first brought
this Bill forward, he said, well this shouldnt be a problem

Senator Doug
Overbey:

202

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 221

because similar language is in the Board of Claims statute,


and I searched and searched for it and finally he directed
me to it, and, and clearly there is some language in the
Board of Claims statute, T.C.A. 9-8-307, which in the
pocket part goes on for seven pages. Its a, its a long
statute, and in letter (n), it does say the claimant must
prove under this subdivision A(1)(n), that the General
Assembly expressly conferred a private right of action in
favor of the claimant against the State for the States
violation of the particular statutes provision, but even that
language only dealt with claims for negligent deprivation
of statutory rights created under Tennessee law, so it
made, it made abundant sense to put that saying in, in that
provision, but it only dealt with a small fraction of the
entire statute. And probably, I would feel better about this
Bill if it said no more than a plaintiff must prove that the
General Assembly expressly conferred a private right of
action in favor of the plaintiff, per, period. I could
probably go along with that. But I think a lot of the
verbiage that has been added, especially that including
imposing affirmative duty of, of care and really not
knowing where, where this takes us continues to trouble
me. Finally, there is a recent Supreme Court case from the
State of Tennessee and Senator Kelsey, you may need to,
need to help me with it. I thought I had it in my notebook.
I dont. The Brown case I believe from 2010, 2011, 2010
or 2011 that developed a three-pronged test to, to
determine whether a statute creates a private right of
action and in that case, the Supreme Court found there was
no private right of action in the statute before the Court. I
was unaware of that Supreme Court decision when
Senator Kelsey and I had our first discussion about, about
this Bill and I think that case strikes a, a balance and it
shows that the Court, courts in this State have some
standards to apply in determining whether a statute creates
a private right of action and there is a three-prong test. A
pla, a plaintiff must establish all three of those prongs and
in that case, the Court found the plaintiff had failed to so
establish that there was a private right of action but it
seems to be a well reasoned decision in striking a proper
203

Case: 16-5149

Chairman Beavers:
Chairman Beavers:

Document: 17

Filed: 04/11/2016

Page: 222

balance and in other words, may be saying we dont need


to codify what the court has already, has already
articulated and in fact, this statute, this language would go
beyond that three-prong test. Were not just codifying the
three-prong test, were saying something different, so I
actually think this statute will likely create more litigation
than it will cease, and I know that was the sponsors
reason for bringing it. He wants to, to cut back on
litigation, but I think because of the Supreme Court has
clearly articulated the three-prong test, has struck a proper
balance, then if we try to take that and put it into statute,
were actually going to create more, more litigation.
Those are my, my thoughts on, on it and why, why I
cannot, cannot support it, but I do compliment you on your
work and your willingness to talk and listen and make
improvements on it.
Any other comments?

Madam Secretary:

Were voting on Senate Bill 2140 as amended. Madam


Secretary, call the roll.
Senator Barnes.

Senator Barnes:

Aye.

Madam Secretary:

Senator Barnes votes aye. Senator Bell.

Senator Mike Bell:

Aye.

Madam Secretary:

Senator Bell votes aye. Senator Campfield.

Senator Campfield:

Aye.

Madam Secretary:

Senator Campfield votes aye. Senator Ford.


[No answer.]

Madam Secretary:

Senator Kelsey.

Senator Brian
Kelsey:
Madam Secretary:

Aye.

Senator Marrero:

No.

Madam Secretary:

Senator Marrero votes no. Senator Overbey.

Senator Doug
Overbey:

Pass.

Senator Kelsey votes aye. Senator Marrero.

204

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 223

Madam Secretary:

Senator Overbey passes. Senator Yager.

Senator Ken Yager:

Aye.

Madam Secretary:

Senator Yager votes aye. Chairman Beavers.

Chairman Beavers:

Aye.

Madam Secretary:

Chairman Beavers votes aye. Six ayes, one no, and two,
well, one pass and one absent.
Okay. Senate Bill 2140 goes to Calendar Committee.

Chairman Beavers:

205

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 224

ADDENDUM
APPELLANTS DESIGNATION OF RELEVANT DOCUMENTS
Appellants, pursuant to Sixth Circuit Rule 28(b)(1)(A)(i), hereby designate
the following filings in the District Courts record as relevant documents:
Hamilton County Emergency Communications District v. Bellsouth
Telecommunications, LLC
Case No. 1:11-cv-00330
Date Filed

Description

Doc#

11/14/2011 Complaint
12/08/2011 BellSouths Memorandum of
Law in Support of its Motion to
Dismiss
01/01/2012 First Amended Complaint
01/01/2012 Response in Opposition to
Motion to Dismiss
01/27/2012
01/27/2012

02/06/2012

02/06/2012

02/06/2012

R.1
R.7

R.13
R.14
R.14-1
R.14-2
BellSouths Motion to Dismiss R.20
First Amended Complaint
BellSouths Memorandum of
R.21
Law in Support of Motion to
R.21-1
Dismiss First Amended
R.21-2
Complaint
R.21-3
R.21-4
Motion for Partial Summary
R.22
Judgment Granting Declaratory
and Injunctive Relief
Memorandum in Support of
R.23
Motion for Partial Summary
R.23-1
Judgment
R.23-2
R.23-3
Affidavit of John Stuermer in
R.24
Support of Motion for Partial

206

P.1-P.15
P.1-P.74

Page ID#
Range
1-15
31-104

P.1-P.39
P.1-P.25
P.1-P.35
P.1-P.2
P.1-P.4

114-152
153-177
178-212
213-214
233-236

P.1-P.34
P.1-P.9
P.1-P.2
P.1-P.21
P.1-P.4
P.1-P.4

237-270
271-279
280-281
282-302
303-306
307-310

P.1-P.14
P.1-P.35
P.1-P.2
P.1-P.16
P.1-P.64

311-324
325-359
360-361
362-377
378-441

Pages

Case: 16-5149

Date Filed

Document: 17

Description

Doc#

Summary Judgment
02/20/2012 Response in Opposition to
Defendants Second Motion to
Dismiss

03/01/2012 BellSouths Opposition to


Motion for Partial Summary
Judgment
03/12/2012 Second Affidavit of John
Stuermer

05/31/2012

08/20/2012

08/20/2012

09/26/2012
10/01/2012
11/20/2012
12/07/2012

08/28/2013

Filed: 04/11/2016

R.25
R.25-1
R.25-2
R.25-3
R.25-4
R.25-5
R.26

R.31
R.31-1
R.31-2
R.31-3
R.31-4
Joint Motion to Consolidate
R.34
Cases for Resolution of Pending R.34-1
Motions to Dismiss
Memorandum (re: Motion to
R.38
Dismiss and Motion for
Summary Judgment)
Order (granting in part and
R.39
denying in part Motion to
Dismiss and denying Motion for
Partial Summary Judgment
Order (designating lead caseR.46
1:11-cv-330)
Answer and Affirmative
R.47
Defenses
Second Amended Complaint
R.61
Answer and Affirmative
R.66
Defenses to Second Amended
Complaint
Motion for Partial Summary
R.152
Judgment on Joint Liability

207

Page: 225

Pages

Page ID#
Range

P.1P.1-P.3P.25
P.1-P.18
P.1-P.8
P.1-P.3
P.1-P.35
P.1-P.30

442-466
467-469
470-487
488-495
496-498
499-533
534-563

P.1-P.4
P.1-P.38
P.1-P.7
P.1-P.9
P.1-P.252
P.1-P.5
P.1-P.4

624-627
628-665
666-672
673-681
682-933
960-964
965-968

P.1-P.32

993-1024

P.1-P.2

1025-1026

P.1

1040

P.1-P.23

1041-1063

P.1-P.38
P.1-P.24

1478-1515
1583-1606

P.1-P.4

4725-4728

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

Claims
08/28/2013 BellSouths Memorandum in
Support of Motion for Partial
Summary Judgment on Joint
Liability Claims
09/23/2013 Response in Opposition to
Motion for Partial Summary
Judgment

09/23/2013 Unredacted Exhibit F to


Districts Response in
Opposition to Motion for Partial
Summary Judgment
10/08/2013 BellSouths Reply in Support of
Motion for Partial Summary
Judgment on Joint Liability
Claims
11/12/2013 Plaintiffs Motion to Compel
Production of Line Count and
Billing Information
11/12/2013 Plaintiffs Memo in Support of
Its Motion to Compel
Production of Line Count and
Billing Information
12/04/2013 BellSouths Opposition to
Motion to Compel

12/04/2013 Declaration of Kathy Reed in


Support of Opposition to
208

Page: 226

Pages

Page ID#
Range

R.153

P.1-P.29

4729-4757

R.154
R.154-1
R.154-2
R.154-3
R.154-4
R.154-5
R.154-6
R.154-7
R.156

P.1-P.25
P.1-P.32
P.1-P.255
P.1-P.4
P.1-P.691
P.1-P.30
P.1-P.47
P.1-P.15
P.1-P.47

4758-4782
4783-4814
4815-5069
5070-5073
5074-5764
5765-5794
5795-5841
5842-5856
5859-5905

R.162
P.1-P.15
R.162-1 P.1-P.4
R.162-2 P.1-P.8

5923-5937
5938-5941
5942-5949

R.189
R.189-1
R.189-2
R.190
R.190-1
R.190-2
R.190-3
R.210
R.210-1
R.210-2
R.210-3
R.210-4
R.210-5
R.211

6405-6408
6409-6481
6482-6518
6519-6529
6530-6534
6535-6536
6537-6540
7650-7670
7671-7695
7696-7698
7699-7701
7702-7704
7705-7708
7709-7712

P.1-P.4
P.1-P.73
P.1-P.37
P.1-P.11
P.1-P.5
P.1-P.2
P.1-P.4
P.1-P.21
P.1-P.25
P.1-P.3
P.1-P.3
P.1-P.3
P.1-P.4
P.1-P.4

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

Motion to Compel
12/04/2013 Declaration of Steven Turner in R.212
Support of Opposition to
R.212-1
Motion to Compel
R.212-2
R.212-3
01/06/2014 Ex L to Motion to Seal R.227
Proposed Sealed Document TN 911 Exclusion Table - 03-11
01/06/2014 Ex F Part 1 to Motion to Seal - R.228
Proposed Sealed Document MP 1931 Reports 2007-2011
01/06/2014 Ex F Part 2 to Motion to Seal - R.229
Proposed Sealed Document MP1931 Reports 2012
01/06/2014 Ex F Part 3 to Motion to Seal - R.230
Proposed Sealed Document MP1931 Reports 2012
01/06/2014 Ex F Part 4 to Motion to Seal - R.231
Proposed Sealed Document MP 1931 Reports 2012
03/31/2014 Plaintiffs Supplemental
R.247
Response in Opposition to
Defendants Motion for Partial
Summary Judgment on Joint
Liability Claims
03/31/2014 Plaintiffs Joint Motion for
R.248
Partial Summary Judgment
03/31/2014 Plaintiffs Memorandum in
R.249
Support of Joint Motion for
Partial Summary Judgment
03/31/2014 Exhibit 6 to Districts MSJ
R.251
(UNE-P Billing Change - User
Requirements Package - Billing
System ChangeCONFIDENTIAL)

209

Page: 227

Pages

Page ID#
Range

P.1-P.5
P.1-P.194
P.1-P.2
P.1-P.2
SEALED

7713-7717
7718-7911
7912-7913
7914-7915
SEALED

SEALED

SEALED

SEALED

SEALED

SEALED

SEALED

SEALED

SEALED

P.1-P.15

9449-9463

P.1-P.8

9464-9471

P.1-P.35

9472-9506

P.1-P.2

9510-9511

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

03/31/2014 Exhibit 13 to Districts MSJ (K. R.252


Sager email string on Write-off
Schedule (Nov. 13, 2008) - Dep.
Exhibit 126-CONFIDENTIAL)
03/31/2014 Exhibit 17 to Districts MSJ
R.253
(Business Requirements
Package Template - Dep Exhibit
19-CONFIDENTIAL)
03/31/2014 Exhibit 47 to Districts MSJ
R.254
(Declaration of Tom Greenholtz
(Federal Billings) (Mar. 25,
2014)-CONFIDENTIAL)
03/31/2014 Exhibit 50 to Districts MSJ
R.255
(Declaration of Tom Greenholtz
(100-Line Cap) (Mar. 25, 2014)CONFIDENTIAL)
03/31/2014 BellSouths Motion for
R.256
Summary Judgment
03/31/2014 Brief in Support of BellSouths R.257
Motion for Summary Judgment
03/31/2014 Declaration of Michael J.
R.258
Breslin, Esq.
R.258-1
R.258-2
T/258-3
03/31/2014 Notice of Filing (Expert Report R.259
of Steven E. Turner, Second
R.259-1
Supplement)
R.259-2
03/31/2014 Declaration of Maureen
R.260
Culberson
R.260-1
03/31/2014 Declaration of Jeffrey H. Fisher, R.261
Esq.
R.261-1
R.261-2
R.261-3
03/31/2014 Declaration of Linda Fisher
R.262
R.262-1

210

Page: 228

P.1-P.5

Page ID#
Range
9512-9516

P.1-P.12

9517-9528

P.1-P.12

9529-9540

P.1-P.28

6541-9568

P.1-P.3

9569-9571

P.1-P.45

9572-9616

P.1-P.12
P.1-P.397
P.1-P.393
P.1-P.269
P.1-P.2
P.1-P.80
P.1-P.2851
P.1-P.3
P.1-P.22
P.1.-P.3
P.1-P.2
P.1-P.5
P.1-P.5
P.1-P.6
P.1-P.2

9617-9628
9629-10025
10026-10418
10419-10687
10688-10689
10690-10769
10770-13620
13621-13623
13624-13645
13646-13648
13649-13650
13651-13655
13656-13660
13661-13666
13667-13668

Pages

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

Pages

R.262-2
R.262-3
R.263
R.264

P.1-P.11
P.1-P.2
P.1-P.4
P.1-P.4

Page ID#
Range
13669-13679
13680-13681
13682-13685
13686-13689

P.1-P.5
P.1-P.6
P.1-P.32
P.1-P.13
P.1-P.78
P.1-P.2
P.1-P.2
P.1-P.3
P.1-P.3
P.1-P.5
P.1-P.24
P.1-P.8
P.1-P.3
P.1-P.3
P.1-P.3
P.1-P.2
P.1-P.4
P.1-P.2
P.1-P.5
P.1-P.4
P.1-P.3
P.1-P.2
P.1-P.2
P.1-P.14
P.1
P.1-P.2
P.1-P.8
P.1-P.22
P.1-P.8
P.1-P.125

13690-13694
13695-13700
13701-13732
13733-13745
13746-13823
13824-13825
13826-13827
13828-13830
13831-13833
13834-13838
13839-13862
13863-13870
13871-13873
13874-13876
13877-13879
13880-13881
13882-13885
13886-13887
13888-13892
13893-13896
13897-13899
13900-13901
13902-13903
13904-13917
13918
13919-13920
13921-13928
13929-13950
13951-13958
13959-14083

03/31/2014 Declaration of David Gleason


03/31/2014 Declaration of Jeannie
Gustafson
03/31/2014 Declaration of Jimmy Kelley, Jr. R.265
03/31/2014 Declaration of Audrey Madkins R.266
R.266-1
R.266-2
R.266-3
R.266-4
R.266-5
03/31/2014 Declaration of Kathy Reed
R.267
03/31/2014 Declaration of Jean-Claude Rizk R.268
03/31/2014 Declaration of Curtis Sutton, Jr. R.269
R.269-1
R.269-2
R.269-3
R.269-4
R.269-5
R.269-6
03/31/2014 Declaration of Steven E. Turner R.270
R.270-1
03/31/2014 Districts Notice of Filing
R.271
Exhibits in Support of Their
R.271-1
Joint Motion for Partial
R.271-2
Summary Judgment
R.271-3
R.271-4
R.271-5
R.271-6
R.271-7
R.271-8
R.271-9
R.271-10
R.271-11

211

Page: 229

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#
R.271-12
R.271-13
R.271-14
R.271-15
R.271-16
R.271-17
R.271-18
R.271-19
R.271-20
R.271-21
R.271-22
R.271-23
R.271-24
R.271-25
R.271-26
R.271-27
R.271-28
R.271-29
R.271-30
R.271-31
R.271-32
R.271-33
R.271.34
R.271-35
R.271-36
R.271-37
R.271-38
R.271-39
R.271-40
R.271-41
R.271-42
R.271-43
R.271-44
R.271-45
R.271-46
R.271-47
R.271-48

212

Page: 230

Pages
P.1-P.98
P.1-P.5
P.1-P.7
P.1-P.5
P.1-P.32
P.1-P.6
P.1-P.13
P.1-P.9
P.1-P.6
P.1-P.7
P.1-P.6
P.1-P.5
P.1-P.6
P.1-P.4
P.1-P.3
P.1-P.4
P.1-P.5
P.1-P.6
P.1-P.35
P.1-P.5
P.1-P.2
P.1
P.1-P.29
P.1-P.4
P.1-P.2
P.1-P.3
P.1-P.31
P.1-P.10
P.1-P.7
P.1-P.17
P.1-P.5
P.1-P.8
P.1-P.31
P.1-P.9
P.1-P.67
P.1-P.75
P.1-P.2

Page ID#
Range
14084-14181
14182-14186
14187-14193
14194-14198
14199-14230
14231-14236
14237-14249
14250-14258
14259-14264
14265-14271
14272-14277
14278-14282
14283-14288
14289-14292
14293-14295
14296-14299
14300-14304
14305-14310
14311-14345
14346-14350
14351-14352
14353
14354-14382
14383-14386
14387-14388
14389-14391
14392-14422
14423-14432
14433-14439
14440-14456
14457-14461
14462-14469
14470-14500
14501-14509
14510-14576
14577-14651
14652-14653

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

03/31/2014 Notice of Corrected Filing Re


Declaration of Michael J.
Breslin

R.271-49
R.271-50
R.271-51
R.271-52
R.271-53
R.271-54
R.271-55
R.271-56
R.271-57
R.271-58
R.271-59
R.271-60
R.271-61
R.271-62
R.272
R.272-1
R.272-2
R.272-3
R.272-4
R.273
R.273-1

04/10/2014 Reply to Plaintiffs


Supplemental Opposition to
Motion for partial Summary
Judgment on Joint Liability
Claims
04/10/2014 Declaration of Jeffrey H. Fisher, R.274
Esq.
R.274-1
R.274-2
R.274-3
04/10/2014 Declaration of William
R.275
Greenlaw
04/10/2014 Declaration of Patricia H.
R.276
Pellerin
04/24/2014 Districts Response in
R.281
Opposition to Defendants
Motion for Summary Judgment
04/24/2014 BellSouths Opposition to
R.282

213

Page: 231

P.1-P.3
P.1-P.10
P.1-P.14
P.1-P.10
P.1-P.17
P.1-P.6
P.1-P.15
P.1-P.3
P.1-P.200
P.1-P.313
P.1-P.22
P.1-P.100
P.1-P.100
P.1
P.1-P.2
P.1-P.12
P.1-P.397
P.1-P.393
P.1-P.269
P.1-P.16
P.1-P.12

Page ID#
Range
14654-14656
14657-14666
14667-14680
14681-14690
14691-14707
14708-14713
14714-14728
14729-14731
14732-14931
14932-15244
15245-15266
15267-15366
15367-15466
15467
15468-15469
15470-15481
15482-15878
15879-16271
16272-16540
16541-16556
16557-16568

P.1-P.3
P.1-P.4
P.1-P.29
P.1-P.11
P.1-P.3

16569-16571
16572-16575
16576-16604
16605-16615
16616-16618

P.1-P.3

16619-16621

P.1-P.35

17175-17209

P.1-P.33

17210-17242

Pages

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

Plaintiffs Joint Motion for


Partial Summary Judgment
04/24/2014 Declaration of Jeffrey H. Fisher,
Esq.
04/24/2014 Declaration of Kathy Reed
04/24/2014 Districts Notice of Filing
Exhibits Referenced in Their
Response In Opposition to
Defendants Motion for
Summary Judgment

214

R.283
R.283-1
R.284
R.285
R.285-1
R.285-2
R.285-3
R.285-4
R.285-5
R.285-6
R.285-7
R.285-8
R.285-9
R.285-10
R.285-11
R.285-12
R.285-13
R.285-14
R.285-15
R.285-16
R.285-17
R.285-18
R.285-19
R.285-20
R.285-21
R.285-22
R.285-23
R.285-24
R.285-25
R.285-26
R.285-27
R.285-28
R.285-29
R.285-30
R.285-31

Page: 232

Pages

Page ID#
Range

P.1-P.5
P.1-P.101
P.1-P.3
P.1-P.4
P.1-P.201
P.1-P.30
P.1-P.23
P.1-P.36
P.1-P.33
P.1-P.4
P.1-P.100
P.1-P.9
P.1-P.10
P.1-P.8
P.1-P.4
P.1-P.51
P.1-P.19
P.1-P.65
P.1-P.16
P.1-P.51
P.1-P.32
P.1-P.32
P.1-P.24
P.1-P.4
P.1
P.1
P.1-P.10
P.1-P.17
P.1-P.34
P.1-P.4
P.1-P.15
P.1-P.5
P.1-P.9
P.1-P.74
P.1-P.14

17243-17247
17248-17348
17349-17351
17352-17355
17356-17556
17557-17586
17587-17609
17610-17645
17646-17678
17679-17682
17683-17782
17783-17791
17792-17801
17802-17809
17810-17813
17814-17864
17865-17883
17884-17948
17949-17964
17965-18015
18016-18047
18048-18079
18080-18103
18104-18107
18108
18109
18110-18119
18120-18136
18137-18170
18171-18174
18175-18189
18190-18194
18195-18203
18204-18277
18278-18291

Case: 16-5149

Date Filed

04/24/2014

04/24/2014

04/24/2014

04/24/2014
05/05/2014

05/05/2014
05/05/2014

05/05/2014

Document: 17

Description

Filed: 04/11/2016

Doc#

R.285-32
R.285-33
R.285-34
R.285-35
R.285-36
R.285-37
R.285-38
R.285-39
R.285-40
R.285-41
R.285-42
R.285-43
Exhibit 69 - CONFIDENTIAL R.287
- E911 Exclusion Table Dec.
2006 (KY)
Exhibit 70 - CONFIDENTIAL - R.288
BellSouth Computer Code BST0079766-79768
Exhibit 7 - Business
R.289
Requirements Package
Template, Depo Exhibit 19
Exhibit 9 - BST0079767
R.290
CONFIDENTIAL
BellSouths Reply in Support of R.294
its Motion for Summary
Judgment
Declaration of Jeffrey H. Fisher, R.295
Esq.
R.295-1
Notice of Filing (of Expert
R.296
Report of Steven E. Turner in R.296-1
Rebuttal to Expert Report
Submitted by Dr. Mohammad
Ahmadi and Randall B. Hebert,
First Supplement)
Districts Reply Memorandum R.298
in Support of Their Joint Motion
215

Page: 233

P.1-P.20
P.1-P.5
P.1-P.6
P.1-P.8
P.1-P.5
P.1-P.10
P.1-P.87
P.1-P.10
P.1-P.9
P.1-P.7
P.1-P.110
P.1-P.6
P.1-P.2

Page ID#
Range
18292-18311
18312-18316
18317-18322
18323-18330
18331-18335
18336-18345
18346-18432
18433-18442
18443-18451
18452-18458
18459-18568
18569-18574
18578-18579

P.1-P.37

18580-18616

P.1-P.12

18617-18628

P.1-P.976

18629-19604

P.1-P.26

19813-19838

P.1-P.3
P.1-P.21
P.1-P.2
P.1-P.81

19839-19841
19842-19862
19863-19864
19865-19945

P.1-P.25

19956-19980

Pages

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

for Partial Summary Judgment


05/05/2014 Districts Notice of Filing
Exhibits Referenced in Their
Reply in Support of Their
Motion for Partial Summary
Judgment

R.299
R.299-1
R.299-2
R.299-3
R.299-4
R.299-5
R.299-6
R.299-7
R.299-8
R.299-9
R.299-10
R.299-11
R.299-12
R.299-13
R.299-14
R.299-15
R.299-16
R.299-17
R.299-18
R.299-19
R.299-20
R.299-21
R.299-22
R.299-23
R.300

05/05/2014 Districts Motion Relating to


Documents Submitted Under
Seal and Request to Enter
Exhibits Upon Public Docket
05/05/2014 Exhibit 110 - CONFIDENTIAL R.301
- BellSouth Summary Analysis
of 911 Surcharges Policies for
Select Carriers
05/05/2014 Exhibit 112 - CONFIDENTIAL R.302
- 911 True Up Procedures, Jan.
29, 2008

216

Page: 234

Pages

Page ID#
Range

P.1-P.4
P.1-P.3
P.1-P.19
P.1-P.6
P.1-P.5
P.1-P.8
P.1-P.6
P.1-P.7
P.1-P.112
P.1-P.9
P.1-P.6
P.1-P.8
P.1-P.23
P.1-P.2
P.1-P.22
P.1-P.56
P.1-P.8
P.1-P.6
P.1-P.7
P.1-P.2
P.1-P.7
P.1-P.18
P.1-P.8
P.1-P.9
P.1-P.3

19981-19984
19985-19987
19988-20006
20007-20012
20013-20017
20018-20025
20026-20031
20032-20038
20039-20150
20151-20159
20160-20165
20166-20173
20174-20196
20197-20198
20199-20220
20221-20276
20277-20284
20285-20290
20291-20297
20298-20299
20300-20306
20307-20324
20325-20332
20333-20341
20342-20344

P.1-P.4

20345-20348

P.1-P.3

20349-20351

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

R.303

P.1-P.61

Page ID#
Range
20352-20412

R.304

P.1-P.2

20413-20414

R.305

P.1-P.10

20415-20424

R.319

P.1-P.5

20658-20662

R.324
R.324-1
R.324-2
R.324-3
R.325

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44
P.1-P.5

20714-20718
20719-20724
20725-20734
20735-20778
20779-20783

P.1-P.55

20784-20838

P.1-P.2

20839-20840

P.1-P.2

20841-20842

Doc#

05/05/2014 Exhibit 114 - CONFIDENTIAL


- Jan. 29, 2002 Email from A.
Darr to B. Thompson
05/05/2014 Exhibit 130 - CONFIDENTIAL
- User Requirements Package,
Centrex Station Line Billings
05/05/2014 Exhibit 134 - CONFIDENTIAL
- BellSouth Exemption Job Aid
Identifying Billing for Federal
Government
09/10/2014 Order (Denying Motion for
Leave to File Documents Under
Seal [Document Nos. 155, 250,
286, 300,])
12/21/2015 Districts Supplemental
Response to BellSouths Motion
for Summary Judgment

12/28/2015 BellSouths Reply to Districts


Supplemental Response to
BellSouths Motion for
Summary Judgment
01/05/2016 Memorandum (Granting
R.326
BellSouths MSJs and Denying
Districts MSJ)
01/05/2016 Judgment Order (Granting
R.327
BellSouths MSJs and Denying
Districts MSJ)
02/03/2016 Notice of Appeal
R.328

217

Page: 235

Pages

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 236

Bradley County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00003
Date Filed

Description

1/5/2012
2/27/2012
2/27/2012

Complaint
First Amended Complaint
Response in Opposition to
Motion to Dismiss

3/23/2012

Motion to Dismiss Second


Complaint
Brief in Support of Motion to
Dismiss Second Complaint

3/23/2012

4/16/2012

Response in Opposition to
Second Motion to Dismiss

5/2/2012

Reply in Support of Motion to


Dismiss Second Complaint

8/15/2012

Supplemental Brief in
Opposition to Motion to
Dismiss

218

Doc#

Pages

R.1
R.16
R.17
R.17-1
R.17-2
R.17-3
R.17-4
R.17-5
R.21

P.1-P.32
P.1-P.34
P.1-P.25
P.1-P.13
P.1
P.1-P.8
P.1-P.2
P.1-P.35
P.1-P.4

Page ID#
Range
1-32
130-163
164-188
189-201
202
203-210
211-212
213-247
258-261

R.22
R.22-1
R.22-2
R.22-3
R.23
R.23-1
R.23-2
R.23-3
R.23-4
R.23-5
R.23-6
R.23-7
R.23-8
R.23-9
R.26
R.26-1
R.26-2
R.26-3
R.29

P.1-P.35
P.1-P.9
P.1-P.2
P.1-P.21
P.1-P.22
P.1
P.1
P.1-P.31
P.1
P.1-P.29
P.1-P.9
P.1-P.16
P.1-P.16
P.1-P.22
P.1-P.22
P.1-P.2
P.1-P.9
P.1-P.3
P.1-P.20

262-296
297-305
306-307
308-328
329-350
351
352
353-383
384
385-413
414-422
423-438
439-454
455-476
482-503
504-505
506-514
515-517
523-542

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

R.30

P.1-P.32

Page ID#
Range
543-574

R.31

P.1-P.2

575-576

R.50
R.51

P.1-P.33
P.1-P.22

1015-1047
1048-1069

R.59

P.1-P.55

1189-1243

R.60

P.1-P.2

1244-1245

R.61

P.1-P.2

1246-1247

Doc#

8/20/2012

Memorandum (re Motion to


Dismiss and Motion for Partial
Summary Judgment)
8/20/2012 ORDER (denying in part and
granting in part Motion to
Dismiss and denying Motion for
Partial Summary Judgment)
11/20/2012 Second Amended Complaint
12/7/2012 Answer and Affirmative
Defenses to First Amended
Complaint
1/5/2016
Memorandum (Granting
BellSouths MSJs and Denying
Districts MSJ)
1/5/2016
Judgment Order (Granting
BellSouths MSJs and Denying
Districts MSJ)
2/3//2016 Notice of Appeal

Page: 237

Pages

Blount County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00056
Date Filed
2/22/2012

3/21/2012
3/21/2012

Description

Doc#

Summons, Complaint and Civil R.1


Case Cover Sheet
R.1-1
R.1-2
Motion to Dismiss
R.5
Memorandum in Support of
R.6
Motion to Dismiss
R.6-1
R.6-2
R.6-3

219

Pages
P.1-P.34
P.1-P.2
P.1-P.2
P.1-P.4
P.1-P.34
P.1-P.9
P.1-P.2
P.1-P.21

Page ID#
Range
1-34
35-36
37-38
45-48
49-82
83-91
92-93
94-114

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 238

Doc#

Pages

R.12
R.12-1
R.12-2
R.12-3
R.12-4
R.12-5
4/23/2012 Reply in Support of Motion to R.14
Dismiss Plaintiffs Complaint
8/15/2012 Supplemental Brief in
R.17
Opposition to Motion to
Dismiss
8/20/2012 Memorandum (re Motion to
R.19
Dismiss and Motion for Partial
Summary Judgment)
8/20/2012 ORDER (denying in part and R.20
granting in part Motion to
Dismiss and denying Motion
for Partial Summary Judgment)
10/1/2012 Answer and Affirmative
R.28
Defenses
11/20/2012 First Amended Complaint
R.36
12/7/2012 Answer and Affirmative
R.37
Defenses to First Amended
Complaint
12/21/2015 Districts Supplemental
R.43
Response to BellSouths
R.43-1
Motion for Summary Judgment R.43-2
R.43-3
1/5/2016
Memorandum (Granting
R.45
BellSouths MSJs and Denying
Districts MSJ)
1/5/2016
Judgment Order (Granting
R.46
BellSouths MSJs and Denying
Districts MSJ)
2/3/2016
Notice of Appeal
R.47

P.1-P.25
P.1-P.2
P.1
P.1-P.8
P.1
P.1-P.35
P.1-P.26

Page ID#
Range
124-148
149-150
151
152-159
160
161-195
201-226

P.1-P.20

232-251

P.1-P.32

253-284

P.1-P.2

285-286

P.1-P.20

301-320

P.1-P.33
P.1-P.21

724-756
757-777

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44
P.1-P.55

827-831
832-837
838-847
848-891
897-951

P.1-P.2

952-953

P.1-P.2

954-955

Date Filed
4/12/2012

Description
Response in Opposition to
Motion to Dismiss

220

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 239

Bedford County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00131
Doc#

Pages

Summons, Complaint and Civil R.1


Case Cover Sheet
R.1-1
R.1-2
8/20/2012 Memorandum (re Motion to
R.9
Dismiss and Motion for Partial
Summary Judgment)
8/20/2012 ORDER (denying in part and R.10
granting in part Motion to
Dismiss and denying Motion for
Partial Summary Judgment)
10/1/2012 Answer and Affirmative
R.18
Defenses
11/20/2012 First Amended Complaint
R.29
12/7/2012 Answer and Affirmative
R.30
Defenses to First Amended
Complaint
12/21/2015 Supplemental Response to
R.36
BellSouths Motion for
R.36-1
Summary Judgment
R.36-2
R.36-3
1/5/2016
Memorandum (Granting
R.38
BellSouths MSJs and Denying
Districts MSJ)
1/5/2016
Judgment Order (Granting
R.39
BellSouths MSJs and Denying
Districts MSJ)
2/3/2016
Notice of Appeal
R.40

P.1-P.35
P.1-P.2
P.1-P.2
P.1-P.32

Page ID#
Range
1-35
36-37
38-39
73-104

P.1-P.2

105-106

P.1-P.21

121-141

P.1-P.34
P.1-P.23

546-579
580-602

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44
P.1-P.55

652-656
657-662
663-672
673-716
722-776

P.1-P.2

777-778

P.1-P.2

779-780

Date Filed

Description

4/19/2012

221

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 240

Coffee County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00138
Doc#

Pages

Summons, Complaint and Civil R.1


Case Cover Sheet
R.1-1
R.1-2
5/23/2012 Motion to Dismiss
R.5
8/15/2012 Supplemental Brief in
R.8
Opposition to Motion to
Dismiss
8/20/2012 Memorandum (re Motion to
R.10
Dismiss and Motion for Partial
Summary Judgment)
8/20/2012 ORDER (denying in part and R.11
granting in part Motion to
Dismiss and denying Motion
for Partial Summary Judgment)
10/1/2012 Answer and Affirmative
R.19
Defenses
11/20/2012 First Amended Complaint
R.34
12/7/2012 Answer and Affirmative
R.35
Defenses to First Amended
Complaint
12/21/2015 Supplemental Response to
R.41
BellSouths Motion for
R.41-1
Summary Judgment
R.41-2
R.41-3
1/5/2016
Memorandum (Granting
R.43
BellSouths MSJs and Denying
Districts MSJ)
1/5/2016
Judgment Order (Granting
R.44
BellSouths MSJs and Denying
Districts MSJ)
2/3/2016
Notice of Appeal
R.45

P.1-P.35
P.1-P.1
P.1-P.2
P.1-P.8
P.1-P.20

Page ID#
Range
1-35
36
37-38
47-54
60-79

P.1-P.32

81-112

P.1-P.2

113-114

P.1-P.22

129-150

P.1-P.34
P.1-P.24

555-588
589-611

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44
P.1-P.55

661-665
666-671
672-681
682-725
731-785

P.1-P.2

786-787

P.1-P.2

788-789

Date Filed

Description

4/27/2012

222

Case: 16-5149

Document: 17

Filed: 04/11/2016

Page: 241

Roane County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00139
Doc#

Pages

Summons, Complaint and Civil R.1


Case Cover Sheet
R.1-1
R.1-2
5/23/2012 Motion to Dismiss
R.5
8/15/2012 Supplemental Brief in
R.8
Opposition to Motion to
Dismiss
8/20/2012 Memorandum (re Motion to
R.10
Dismiss and Motion for Partial
Summary Judgment)
8/20/2012 ORDER (denying in part and R.11
granting in part Motion to
Dismiss and denying Motion
for Partial Summary Judgment)
10/1/2012 Answer and Affirmative
R.19
Defenses
11/20/2012 First Amended Complaint
R.32
12/7/2012 Answer and Affirmative
R.33
Defenses to First Amended
Complaint
12/21/2015 Supplemental Response to
R.39
BellSouths Motion for
R.39-1
Summary Judgment
R.39-2
R.39-3
1/5/2016
Memorandum (Granting
R.41
BellSouths MSJs and Denying
Districts MSJ)
1/5/2016
Judgment Order (Granting
R.42
BellSouths MSJs and Denying
Districts MSJ)

P.1-P.34
P.1-P.1
P.1-P.2
P.1-P.8
P.1-P.20

Page ID#
Range
1-34
35
36-37
46-53
59-78

P.1-P.32

80-111

P.1-P.2

112-113

P.1-P.23

128-150

P.1-P.34
P.1-P.22

555-588
589-610

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44
P.1-P.55

660-664
665-670
671-680
681-724
730-784

P.1-P.2

785-786

Date Filed

Description

4/27/2012

223

Case: 16-5149

Date Filed
2/3/2016

Document: 17

Description

Filed: 04/11/2016

Doc#

Notice of Appeal

R.43

Pages
P.1-P.2

Page: 242

Page ID#
Range
787-788

Franklin County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00149
Doc#

Pages

05/03/2012 Summons, Complaint and Civil R.1


Case Cover Sheet
R.1-1
R.1-2
08/20/2012 Supplemental Brief in
R.7
Opposition to Motion to
Dismiss
08/20/2012 Memorandum (re Motion to
R.9
Dismiss and Motion for Partial
Summary Judgment)
08/20/2012 ORDER (denying in part and R.10
granting in part Motion to
Dismiss and denying Motion
for Partial Summary Judgment)
10/01/2012 Answer and Affirmative
R.18
Defenses
11/20/2012 First Amended Complaint
R.33
12/07/2012 Answer and Affirmative
R.34
Defenses to First Amended
Complaint
12/21/2015 Districts Supplemental
R.40
Response to BellSouths
R.40-1
Motion for Summary Judgment R.40-2
R.40-3
01/05/2016 Memorandum (Granting
R.42
BellSouths MSJs and Denying
Districts MSJ)

P.1-P.34
P.1
P.1-P.2
P.1-P.6

Page ID#
Range
1-34
35
36-37
52-71

P.1-P.32

73-104

P.1-P.2

105-106

P.1-P.22

121-142

P.1-P.34
P.1-P.23

615-648
649-671

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44
P.1-P.55

721-725
726-731
732-741
742-785
791-845

Date Filed

Description

224

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

01/05/2016 Judgment Order (Granting


R.43
BellSouths MSJs and Denying
Districts MSJ)
02/03/2016 Notice of Appeal
R.44

Page: 243

P.1-P.2

Page ID#
Range
846-847

P.1-P.2

848-849

Pages

Giles County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00166
Date Filed
5/22/2012

Description

R.1
R.1-1
R.1-2
R.6

P.1-P.35
P.1
P.1-P.2
P.1-P.20

Page ID#
Range
1-35
36
37-38
50-69

R.8

P.1-P.32

71-102

R.9

P.1-P.2

103-104

R.17

P.1-P.22

119-140

R.36
R.37

P.1-P.34
P.1-P.22

545-578
579-600

R.43
R.43-1
R.43-2
R.43-3

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44

650-654
655-660
661-670
671-714

Doc#

Complaint with Civil Case


Cover Sheet and Summons

8/15/2012

Supplemental Brief in
Opposition to Motions to
Dismiss
8/20/2012 Memorandum (re Motion to
Dismiss and Motion for Partial
Summary Judgment)
8/20/2012 ORDER (denying in part and
granting in part Motion to
Dismiss and denying Motion
for Partial Summary Judgment)
10/1/2012 Answer and Affirmative
Defenses
11/20/2012 First Amended Complaint
12/7/2012 Answer and Affirmative
Defenses to First Amended
Complaint
12/21/2015 Supplemental Response to
BellSouths Motion for
Summary Judgment

225

Pages

Case: 16-5149

Date Filed
1/5/2016

1/5/2016

2/3/2016

Document: 17

Description

Filed: 04/11/2016

Doc#

Memorandum (Granting
R.45
BellSouths MSJs and Denying
Districts MSJ)
Judgment Order (Granting
R.46
BellSouths MSJs and Denying
Districts MSJ)
Notice of Appeal
R.47

Page: 244

P.1-P.55

Page ID#
Range
720-774

P.1-P.2

775-776

P.1-P.2

777-778

Pages

Cheatham County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00176
Doc#

Pages

Summons, Complaint and Civil R.1


Case Cover Sheet
R.1-1
R.1-2
8/20/2012 Memorandum (re Motion to
R.6
Dismiss and Motion for Partial
Summary Judgment)
8/20/2012 ORDER (denying in part and R.7
granting in part Motion to
Dismiss and denying Motion
for Partial Summary Judgment)
10/01/2012 Answer and Affirmative
R.14
Defenses
11/20/2012 First Amended Complaint
R.18
12/7/2012 Answer and Affirmative
R.19
Defenses to First Amended
Complaint
12/21/2015 Supplemental Response to
R.25
BellSouths Motion for
R.25-1
Summary Judgment
R.25-2
R.25-3

P.1-P.35
P.1-P.2
P.1
P.1-P.32

Page ID#
Range
1-35
36-37
38
48-79

P.1-P.2

80-81

P.1-P.22

94-115

P.1-P.34
P.1-P.22

157-190
191-212

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44

262-266
267-272
273-282
283-326

Date Filed

Description

6/1/2012

226

Case: 16-5149

Date Filed
1/5/2016

1/5/2016

2/3/2016

Document: 17

Description

Filed: 04/11/2016

Doc#

Memorandum (Granting
R.27
BellSouths MSJs and Denying
Districts MSJ)
Judgment Order (Granting
R.28
BellSouths MSJs and Denying
Districts MSJ)
Notice of Appeal
R.29

Page: 245

P.1-P.55

Page ID#
Range
332-386

P.1-P.2

387-388

P.1-P.2

389-390

Pages

Knox County Emergency Communications District v. Bellsouth


Telecommunications, LLC
Case No. 1:12-cv-00186
Doc#

Pages

06/13/2012 Summons, Complaint and Civil R.1


Case Cover Sheet
R.1-1
R.1-2
08/20/2012 Memorandum (re Motion to
R.6
Dismiss and Motion for Partial
Summary Judgment)
08/20/2012 ORDER (denying in part and R.7
granting in part Motion to
Dismiss and denying Motion
for Partial Summary Judgment)
10/01/2012 Answer and Affirmative
R.13
Defenses
12/07/2012 First Amended Complaint
R.17
12/07/2012 Answer and Affirmative
R.18
Defenses to First Amended
Complaint
12/21/2015 Districts Supplemental
R.24
Response to BellSouths
R.24-1
Motion for Summary Judgment R.24-2
R.24-3

P.1-P.35
P.1-P.2
P.2-P.2
P.1-P.32

Page ID#
Range
1-35
36-37
38-39
49-80

P.1-P.2

81-82

P.1-P.21

93-113

P.1-P.35
P.1-P.22

157-191
192-213

P.1-P.5
P.1-P.6
P.1-P.10
P.1-P.44

263-267
268-273
274-283
284-327

Date Filed

Description

227

Case: 16-5149

Date Filed

Document: 17

Description

Filed: 04/11/2016

Doc#

01/05/2016 Memorandum (Granting


R.26
BellSouths MSJs and Denying
Districts MSJ)
01/05/2016 Judgment Order (Granting
R.27
BellSouths MSJs and Denying
Districts MSJ)
02/03/2016 Notice of Appeal
R.28

228

Page: 246

P.1-P.55

Page ID#
Range
333-387

P.1-P.2

388-389

P.1-P.2

390-391

Pages