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Illinois RSA No. 3, Inc. v. Department of Central Management Services

Case Date: 05/11/2004
Court: 1st District Appellate
Docket No: 1-02-3420 NRel

SECOND DIVISION
May 11, 2004



 

No. 1-02-3420

 

ILLINOIS RSA No. 3, INC.; USCOC OF ILLINOIS RSA
No. 4, INC.; DAVENPORT CELLULAR TELEPHONE
COMPANY; and USCOC OF ILLINOIS RSA No. 1, INC.,

          Plaintiffs-Appellees,

                    v.

THE DEPARTMENT OF CENTRAL MANAGEMENT
SERVICES,

          Defendant-Appellant.

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)		 Appeal from
the Circuit Court
of Cook County


No. 01 CH 12217



Honorable
Donald J. O'Brien,
Judge Presiding.


MODIFIED ON DENIAL OF REHEARING

JUSTICE CAHILL delivered the opinion of the court:

We consider whether defendant, the Illinois Department of Central Management Services(CMS), had the authority to promulgate a rule that wireless carriers could recover no more than100% of a surcharge. The surcharge is to be collected and remitted to a fund established todefray carriers' expenses in establishing 9-1-1 emergency service. The issue and the validity of therule arises because the Wireless Emergency Telephone Safety Act (Act) (50 ILCS 751/1 et seq.(West 2002)) allows wireless carriers to receive up to 125% of the amount collected insurcharges. The plaintiffs filed a complaint in the circuit court in 2001, claiming the CMS 100%rule conflicts with the Act. The circuit court granted summary judgment in favor of plaintiffs andCMS appeals. We affirm.

The Act, which became effective in July 1999, provides, "it is in the public interest topromote the use of wireless 9-1-1 and wireless enhanced 9-1-1 (E9-1-1) service in order to savelives and protect the property of the citizens of the State of Illinois." 50 ILCS 751/5 (West 2002). The legislature recognized:

"[W]ireless carriers *** require adequate funding to recover the costs ofdesigning, purchasing, installing, testing, and operating enhanced facilities,systems, and services necessary to comply with the wireless E9-1-1 requirementsmandated by the Federal Communications Commission [(FCC)] and to maximizethe availability of wireless E9-1-1 services throughout the State of Illinois." 50ILCS 751/5 (West 2002).

Section 5 of the Act encourages wireless carriers to provide 9-1-1 services "that will assist publicsafety agencies in determining the caller's approximate location and wireless telephone number"and to reimburse wireless carries for the costs they incur. 50 ILCS 751/5 (West 2002).

Section 17 of the Act establishes a surcharge on telephone bills to reimburse carriers'costs:

"(a) *** [E]ach wireless carrier shall impose a monthly wireless carriersurcharge per *** connection that either has a telephone number within an areacode assigned to Illinois *** or has a billing address in this State. ***

(b) *** [A] wireless carrier shall, within 45 days of collection, remit *** tothe State Treasurer the amount of the wireless carrier surcharge collected from each subscriber. Of the amounts remitted under this subsection, the State Treasurer shall deposit one-third into the Wireless Carrier Reimbursement Fund[(WCRF)] ***." 50 ILCS 751/17(a), (b) (West 2002).

The amount of the surcharge is to be set by a Wireless Enhanced 9-1-1 Board, but the charge maynot exceed $.75 per month per connection. 50 ILCS 751/15(c) (West 2002).

Section 30 of the Act establishes the WCRF as a separate fund of the State treasury:

"Moneys in the [WCRF] may be used, subject to appropriation, only to reimbursewireless carriers for all [emphasis added] of their costs incurred in complying withthe *** [FCC] wireless enhanced 9-1-1 service mandates ***. This reimbursementmay include, but need not be limited to, the cost of designing, upgrading,purchasing, leasing, programming, installing, testing, and maintaining necessarydata, hardware, and software and associated operating and administrative costsand overhead." 50 ILCS 751/30 (West 2002).

Section 35 outlines the procedures to be followed by carriers seekingreimbursement under the Act:

"To recover costs from the [WCRF], the wireless carrier shall submitsworn invoices to [CMS]. In no event may any invoice for payment be approvedfor (i) costs that are not related to compliance with the requirements established bythe wireless enhanced 9-1-1 mandates of the [FCC], (ii) costs with respect to anywireless enhanced 9-1-1 service that is not operable at the time the invoice issubmitted, or (iii) costs of any wireless carrier exceeding 125% of the wirelessemergency services charges remitted to the [WCRF] by the wireless carrier ***unless the wireless carrier received prior approval for the expenditures from[CMS]." 50 ILCS 751/35 (West 2000).

Section 35 further provides, "[CMS] shall adopt rules to govern the reimbursement process." 50ILCS 751/35 (West 2002).

CMS promulgated an administrative rule governing reimbursements under the Act:

"Moneys in the WCRF may be used, subject to appropriation, only toreimburse Carriers for costs incurred in complying with the applicable provisionsof FCC wireless enhanced 9-1-1- service mandates and to pay AdministrativeCosts. In no event shall any sworn invoice submitted to [CMS] for reimbursementbe approved for:

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(d) An amount in excess of 100% of an individual Carrier's cumulativeremittances to the WCRF, net Administrative Costs and prior Reimbursements." 83 Ill. Adm. Code