�911 Emergency Surcharge and Right-of-Way Charge, B-288161, April 8, 2002

B-288161 Apr 08, 2002 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights You asked whether the United States House of Representatives and its respective offices are responsible for paying the 911 emergency surcharge and the right-of-way charge to local carriers within the District of Columbia. Both charges are itemized on the monthly statement from the local carrier. We find that the District of Columbia's 911 emergency surcharge is a tax. The United States is constitutionally immune and the tax is not payable by the federal government. The right-of-way charge is a rental fee imposed upon the telecommunications companies and other utilities that use public property. Since it is not a tax that falls on the federal government as a vendee. Among the itemized charges are two specific fees which are the subject of your letter: a 911 emergency surcharge and a right-of-way charge. View Decision 911 Emergency Surcharge and Right-of-Way Charge, B-288161, April 8, 2002 Mr. James M. Eagen, III Chief Administrative Officer Office of the Chief Administrative Officer House of Representatives Dear Mr. Eagen: By letter dated June 18, 2001, you asked whether the United States House of Representatives and its respective offices are responsible for paying the 911 emergency surcharge and the right-of-way charge to local carriers within the District of Columbia. Both charges are itemized on the monthly statement from the local carrier, Verizon. As set forth more fully below, we find that the District of Columbia's 911 emergency surcharge is a tax, the legal incidence of which falls directly on the federal government as a user of telephone services in the District of Columbia. Consequently, the United States is constitutionally immune and the tax is not payable by the federal government. However, the right-of-way charge is a rental fee imposed upon the telecommunications companies and other utilities that use public property. Since it is not a tax that falls on the federal government as a vendee, the federal government may pay the right-of-way charge. Background The House of Representatives receives a monthly statement from Verizon, its local carrier for telephone services. Among the itemized charges are two specific fees which are the subject of your letter: a 911 emergency surcharge and a right-of-way charge. You note that the federal government is constitutionally immune from taxation by the states and where a state tax is imposed directly on the purchaser, and the purchaser is the United States, the United States is not required to pay the tax pursuant to principles of sovereign immunity. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). You asked us whether the House of Representatives and its respective offices are responsible for paying the 911 emergency surcharge and right-of-way charge. The two relevant statutes to the inquiry are the Emergency and Non-Emergency Number Telephone Calling Systems Act of 2000 for the 911 emergency surcharge (D.C. Code Ann. Sec. 34-1801 (2001)) and the Fiscal Year 1997 Budget Support Act of 1996 (D.C. Law 11-198, April 9, 1997), which authorized the Mayor to issue permits and charge rent for use of public rights of way. D.C. Code Ann. Sec. 7-1076 (2001). We will describe each in turn below. Emergency and Non-Emergency Number Telephone Calling Systems Act of 2000 In 2000, the District of Columbia enacted the Emergency and Non-Emergency Number Telephone Calling Systems Fund Act of 2000 (fund) (D.C. Law 13-172, Oct. 19, 2000) which is to be used to defray the 911 emergency system costs incurred by the District of Columbia. Under this law, "[a]ll subscribers shall contribute to the Fund through a user fee to be collected by each local exchange carrier." D.C. Code Ann. Sec. 34-1803(a) (2001). User fees collected under the statute are not "considered revenue of a local exchange carrier for any purpose." D.C. Code Ann. Sec. 34-1803(c) (2001). These fees must be deposited in the fund and used solely to defray the costs incurred by the District of Columbia in providing a 911 emergency system. D.C. Code Ann. Sec. 34-1802 (2001). The law explains that the 911 charges are "user fees imposed on [telephone] subscribers" and that the law "remove[s] the 911 system costs currently embedded in the base rates charged by the [telephone companies] for local telephone services." Emergency and Non-Emergency Number Telephone Calling Systems Fund Act of 2000, D.C. Law 13-172, Oct. 19, 2000. Fiscal Year 1997 Budget Support Act of 1996 The Fiscal Year 1997 Budget Support Act of 1996 (D.C. Law 11-198, April 9, 1997) authorizes the Mayor to issue permits and charge rent for the occupation and use of public space, public rights of way and public structures. Part of the law deals with the area below the surface of any public street or sidewalk. D.C. Code Ann. Sec. 10-1141.01 (2001).