Professional Documents
Culture Documents
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MICHAEL J. MAHN
711 Signal Mountain Road, PMB 316
Chattanooga, TN 37405
(423) 280-7961
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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.
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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
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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
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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
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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.
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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
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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.
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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.
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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
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Case
Name:
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.
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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.
B.
B.
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C.
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1.
2.
b.
c.
III.
IV.
B.
C.
D.
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E.
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2.
3.
4.
b.
c.
d.
e.
f.
CONCLUSION ........................................................................................................58
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ......................................59
CERTIFICATE OF SERVICE ................................................................................60
STATUTORY ADDENDUM .................................................................................61
ADDENDUM ........................................................................................................206
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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
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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
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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
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xvii
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STATEMENT OF JURISDICTION
A.
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)
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B.
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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
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.
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II.
B.
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.
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.
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B.
C.
The Districts claims are not limited only to those lines as to which
BellSouth claims to have interpretive disputes.
D.
E.
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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
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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.
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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.
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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
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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
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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
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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.
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
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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.
12
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B.
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
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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
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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).
15
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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.
A.
The legislature has recently expressed the clear intent that courts
may recognize the Districts implied cause of action.
16
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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.
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B.
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
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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
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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
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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 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
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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.
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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
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C.
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
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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.
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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
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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
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(B)
(C)
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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
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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.
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
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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.
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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
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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
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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.
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those types of lines for which the Districts sought a declaration that 911 Charges
apply.
D.
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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.
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
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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.
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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
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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.
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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
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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.
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-
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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,
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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
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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.
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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.
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
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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.
BellSouth seeking recovery for BellSouths failure to bill 911 charges on all
multiplex lines. Madison County, supra.
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.
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
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unrelated federal policy to BellSouths compliance with the Alabama 911 Act. Id.
at *11.
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.
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.
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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.
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administrative proceeding within 60 days to appeal Policy 23, but did not do so.
Tenn. Code Ann. 7-86-306 (2014).
c.
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 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.
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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.
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Minnesota Assn of Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032,
1053 (8th Cir. 2002).
f.
24
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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
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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.
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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
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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.
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
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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
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STATUTORY ADDENDUM
TABLE OF CONTENTS
ALABAMA CODE OF 1975 ..................................................................................65
Chapter 98 Emergency Telephone Service.........................................................65
11-98-1.
11-98-2.
11-98-3.
11-98-4.
11-98-4.1.
11-98-5.
11-98-5.1.
11-98-5.2.
11-98-5.3.
11-98-6.
11-98-7.
11-98-7.1.
11-98-8.
11-98-9.
11-98-10.
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11-98-12.
11-98-13.
11-98-13.1.
11-98-14.
11-98-15.
7-86-102.
7-86-103.
Definitions ...............................................................................100
7-86-104.
7-86-105.
7-86-106.
7-86-107.
7-86-108.
7-86-109.
7-86-110.
7-86-111.
7-86-112.
7-86-113.
7-86-114.
7-86-115.
7-86-116.
7-86-117.
Tax exemption.........................................................................119
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7-86-118.
7-86-119.
7-86-120.
7-86-121.
7-86-122.
7-86-123.
7-86-124.
7-86-125.
7-86-126.
7-86-127.
7-86-128.
7-86-129.
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(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:
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(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
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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.
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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.
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(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
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(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)
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(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
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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.
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(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.
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(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
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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
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(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.
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(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
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(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
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(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
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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;
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(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,
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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
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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)
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(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)
(B)
Relay method; or
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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
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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,
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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.
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(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
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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
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(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.
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(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.
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(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
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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
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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
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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);
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(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)
(d)
(e)
(f)
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(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
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(p)
(q)
(r)
(s)
(t)
(u)
(v)
2.
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3.
4.
(w)
(x)
(y)
(z)
(aa)
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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.
(ff)
(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
(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)
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(2)
(b)
(c)
(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)
(f)
(g)
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(2)
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(h)
(i)
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)
(b)
Conditions of Certification
(a)
(b)
2.
3.
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4.
5.
6.
2.
3.
4.
1220-4-8-.05
(1)
(2)
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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)
Tariff Requirements
(a)
(2)
2.
3.
(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)
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(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)
(d)
(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)
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Reserved.
(2)
Anti-competitive provisions.
(a)
(b)
(c)
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2.
3.
(b)
The provider shall have thirty (30) days from receipt of the notice of
violation to provide a written response to the Authority.
(c)
(d)
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Reserved.
1220-4-8-.11
Reserved.
1220-4-8-.12
Reserved.
1220-4-8-.13
(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)
2.
3.
(b)
(c)
(d)
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1.
2.
3.
4.
5.
(e)
(f)
(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.
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(b)
(c)
(d)
(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.
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OTHER PUBLICATIONS
Tenn. Op. Atty. Gen. No. 07-38 (Tenn.A.G.), 2007 WL 1054077
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157
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TECB Policy 23
158
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Page: 176
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159
Case: 16-5149
Document: 17
Filed: 04/11/2016
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160
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161
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162
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163
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164
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165
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168
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169
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170
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172
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177
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178
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179
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180
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181
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182
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187
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188
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Document: 17
189
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Document: 17
190
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Page: 208
Case: 16-5149
Document: 17
Filed: 04/11/2016
Page: 209
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Madam Secretary:
Senator Brian
Kelsey:
Chairman Beavers:
Senator Yager.
191
Case: 16-5149
Chairman Beavers:
Senator Brian
Kelsey:
Senator Ken Yager:
Document: 17
Filed: 04/11/2016
Page: 210
Chairman Beavers:
Senator Kelsey.
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Chairman Beavers:
Senator Ken Yager:
Okay.
Okay.
192
Case: 16-5149
Chairman Beavers:
Senator Brian
Kelsey:
Document: 17
Filed: 04/11/2016
Page: 211
193
Case: 16-5149
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Document: 17
Filed: 04/11/2016
Page: 212
Senator Brian
Kelsey:
Chairman Beavers:
Chairman Beavers:
Many:
Chairman Beavers:
Opposed.
Chairman Beavers:
Chairman Beavers:
Many:
Chairman Beavers:
Many:
Chairman Beavers:
Opposed.
194
Case: 16-5149
Document: 17
Filed: 04/11/2016
Page: 213
Chairman Beavers:
Chairman Beavers:
[Unintelligible]
Chairman Beavers:
Senator Doug
Overbey:
195
Case: 16-5149
Document: 17
Filed: 04/11/2016
Page: 214
Case: 16-5149
Chairman Beavers:
Chairman Beavers:
Document: 17
Filed: 04/11/2016
Page: 215
Madam Secretary:
Senator Barnes:
Aye.
Madam Secretary:
Aye.
Madam Secretary:
Senator Campfield:
Aye.
Madam Secretary:
Madam Secretary:
Senator Kelsey.
Senator Brian
Kelsey:
Madam Secretary:
Aye.
Senator Marrero:
No.
Madam Secretary:
Senator Doug
Pass.
197
Case: 16-5149
Document: 17
Filed: 04/11/2016
Page: 216
Overbey:
Madam Secretary:
Aye.
Madam Secretary:
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:
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Madam Secretary:
Senator Brian
Kelsey:
Chairman Beavers:
Chairman Beavers:
Senator Yager.
198
Case: 16-5149
Senator Brian
Kelsey:
Senator Ken Yager:
Document: 17
Filed: 04/11/2016
Page: 217
Chairman Beavers:
Senator Kelsey.
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Chairman Beavers:
Senator Ken Yager:
Okay.
Okay.
199
Case: 16-5149
Chairman Beavers:
Senator Brian
Kelsey:
Document: 17
Filed: 04/11/2016
Page: 218
200
Case: 16-5149
Chairman Beavers:
Senator Brian
Kelsey:
Chairman Beavers:
Document: 17
Filed: 04/11/2016
Page: 219
Senator Brian
Kelsey:
Chairman Beavers:
Chairman Beavers:
Many:
Chairman Beavers:
Opposed.
Chairman Beavers:
Chairman Beavers:
Many:
Chairman Beavers:
Many:
Chairman Beavers:
Opposed.
Chairman Beavers:
201
Case: 16-5149
Document: 17
Filed: 04/11/2016
Page: 220
Chairman Beavers:
[Unintelligible]
Chairman Beavers:
Senator Doug
Overbey:
202
Case: 16-5149
Document: 17
Filed: 04/11/2016
Page: 221
Case: 16-5149
Chairman Beavers:
Chairman Beavers:
Document: 17
Filed: 04/11/2016
Page: 222
Madam Secretary:
Senator Barnes:
Aye.
Madam Secretary:
Aye.
Madam Secretary:
Senator Campfield:
Aye.
Madam Secretary:
Madam Secretary:
Senator Kelsey.
Senator Brian
Kelsey:
Madam Secretary:
Aye.
Senator Marrero:
No.
Madam Secretary:
Senator Doug
Overbey:
Pass.
204
Case: 16-5149
Document: 17
Filed: 04/11/2016
Page: 223
Madam Secretary:
Aye.
Madam Secretary:
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
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
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#
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
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#
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
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#
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#
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
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#
217
Page: 235
Pages
Case: 16-5149
Document: 17
Filed: 04/11/2016
Page: 236
Description
1/5/2012
2/27/2012
2/27/2012
Complaint
First Amended Complaint
Response in Opposition to
Motion to Dismiss
3/23/2012
3/23/2012
4/16/2012
Response in Opposition to
Second Motion to Dismiss
5/2/2012
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
Page: 237
Pages
3/21/2012
3/21/2012
Description
Doc#
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
Pages
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
Pages
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
Pages
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
Pages
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#
Page: 243
P.1-P.2
Page ID#
Range
846-847
P.1-P.2
848-849
Pages
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#
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
Pages
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
Pages
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#
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