No. 95/96-1

June 12, 1996

Kathleen M. O'Toole, Secretary
Executive Office of Public Safety
One Ashburton Place, 21st Floor
Boston, MA 02108

Dear Secretary O'Toole:

You have requested my opinion whether the Statewide Emergency Telecommunications Board (the "Board") has authority, in implementing Enhanced 911 ("E-911") service, pursuant to M.G.L. c. 6A, §§ 18A-F (1994 ed.), to designate private safety agencies (i.e., privately owned and operated ambulance companies) as secondary public safety answering points ("PSAPs"). 1 Your question arises because the statutory provision governing PSAPs expressly provides that public safety agencies (i.e., divisions of state or municipal government) shall serve as primary PSAPs; the statute is silent, however, as to whether public safety agencies similarly must serve as secondary PSAPs or whether private safety agencies can serve that function. For the reasons discussed below, it is my opinion that the relevant statute does not preclude the Board from approving private safety agencies as secondary PSAPs.

Pursuant to M.G.L. c. 6A, § 18B(b) , the Board is responsible for coordinating and implementing E-911 service. Enhanced 911 is "a service consisting of telephone network features provided for users of the public telephone system enabling such users to reach a public safety answering point by dialing the digits 911. Such service directs 911 calls to appropriate public safety answering points by selective routing based on the geographical location from which the calls originate and provides the capability for automatic number identification and automatic location identification." M.G.L. c. 6A, § 18A.

Each municipality within the Commonwealth that certifies to the Secretary of the Commonwealth that it accepts the provisions of St. 1990, c. 291, establishing the Board and E-911, "shall establish, staff, and operate, in conjunction with one or more other municipalities or by itself, a public safety answering point on a twenty-four hour a day, seven days a week basis, in a manner and according to a schedule to be approved by the board." M.G.L. c. 6A, § 18D(a) . Pursuant to M.G.L. c. 6A § 18A , a public safety answering point is defined as "a facility assigned the responsibility of receiving 911 calls and, as appropriate, directly dispatching emergency response services or transferring or relaying emergency 911 calls to other public or private safety agencies." 2 See also M.G.L. c. 6A, § 18C(a) .

While the statute thus contemplates that the services ultimately provided in response to an E-911 call may be performed by either "public or private safety agencies," 3 it nonetheless requires that a "public safety agency" serve as the primary PSAP. In particular, M.G.L. c. 6A, § 18D, governing the statewide plan to be adopted by the Board for implementation of E-911, requires that the plan include "[a] designation within each enhanced 911 system, of the municipalities and the public safety agencies within such municipalities, to serve as the primary public safety answering points. In all cases, the recommendation for the primary public safety answering point locations shall be for existing public safety agencies. . . ." M.G.L. c. 6A, § 18D(c)(3) (emphasis added). The question you have raised, however, is whether a public safety agency must also serve as the secondary PSAP or whether a private safety agency may serve that function.

In contrast to the foregoing provisions governing primary PSAPs, the statute does not contain language specifically requiring public safety agencies to serve as secondary PSAPs. The provision governing requirements for the implementation plan adopted by the Board merely provides, with respect to secondary PSAPs, that "[t]he board shall also evaluate the need for secondary public safety answering points in municipalities which have requested them." M.G.L. c. 6A, § 18D(c)(3) . The section governing the Board's powers and duties similarly provides that applications for secondary PSAPs shall be reviewed and approved by the Board. M.G.L. c. 6A, 18B(b) .

I am aware of no case authority that sheds light on the question you have raised. However, interpreting statutory language itself, guided by general principles of statutory construction, I am of the view, for the reasons discussed below, that the statute does not preclude the Board from approving an application by a municipality for a private service agency to serve as a secondary PSAP. Two principles of statutory construction are of particular relevance here. First, where the Legislature "has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present." Beeler v. Downey, 387 Mass. 609, 616 (1982). In addition, legislative intent should be ascertained from the "ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished . . . ." Board of Education v. Assessor of Worcester, 368 Mass. 511, 513 (1975) (citations omitted). 560 C.M.R. § 2.06(l)(f) (emphasis added). The latter language suggests the Board's understanding that the statute does not preclude municipalities from designating "non-municipal" (i.e., private) safety agencies as secondary or ringing PSAPs, with the Board's approval. The Board's latitude to approve private safety agencies as secondary PSAPs also is consistent with the Board's broad statutory authority to "coordinate and effect the implementation of enhanced 911, and administer its service in the commonwealth," M.G.L. c. 6A, § 18B(b) , including the specific authority to review and approve applications for secondary PSAPs, M.G.L. c. 6A, § 18B(b) , and to "evaluate the need for secondary public safety answering points." See M.G.L. c. 6A, § 18D(c)(3).

Moreover, considerations of public safety, which underlie M.G.L. c. 6A, §§ 18A-F, support a reading of the statute that would enable private safety agencies to serve as secondary PSAPs. In this regard, it is my understanding, based on information provided by your office and by the Board, that precluding private safety agencies from serving as secondary PSAPs and allowing them to serve only as ringing PSAPs could, in certain circumstances, lead to delays in the provision of emergency services to the person placing a 911 call. For example, where a 911 call placed to a primary PSAP is transferred to a private ambulance company that has been designated only a ringing PSAP (not a secondary PSAP) and, thus, is not authorized to be equipped with ANI and ALI, if the caller were unable to provide necessary information concerning his or her telephone number or address (or if the private company inadvertently recorded the information incorrectly), the private ambulance company would be required to call back the primary PSAP to obtain the information needed to respond to the emergency, resulting in a delay in the provision of emergency services. 4

On the other hand, if the private ambulance company itself were designated a secondary PSAP in the foregoing example, it would be equipped with ANI and ALI and that address/location information would be displayed instantaneously on the company's telephone screen. The important public safety interest in ensuring prompt responses to E-911 calls favors an interpretation of the statute that would enable private safety agencies to serve as secondary PSAPs.

In response to a concern expressed by the Board and others regarding the potential misuse of ANI and ALI information by private safety agencies designated to serve as secondary PSAPs, I note that the operational standards governing PSAPs appear to address that issue. In particular, 560 C.M.R. § 2.06(1)(j) provides that "[s]ubscriber information provided in accordance with the 9-1-1 system shall be used only for the purpose of responding to emergency calls or for use in any ensuing investigation or prosecution" and that PSAPs "must provide protection and confidentiality for ANI [automatic number identification] and ALI [automatic location identification] data." (This prohibition on misuse of subscriber information is repeated in M.G.L. c. 166, § 14A(d) (1994 ed.), governing the provision of E-911 service to PSAPs by telephone companies.) Finally, the same regulation requires that "[e]ach PSAP shall establish personnel security clearance standards that are acceptable to all public safety agencies served by the facility." In addition, the Board requires those municipalities that contract with private safety agencies and seek to designate those agencies as secondary PSAPs to incorporate protections into the terms of their contracts in order to address additional concerns about the possible misuse of subscriber information. 5

In sum, based on my review of the relevant provisions of M.G.L. c. 6A, §§ 18A-F, I conclude that the statute does not preclude the Board from approving a private service agency as a secondary public safety answering point.

Scott Harshbarger

1 Secondary PSAPs receive E-911 calls only when they are transferred from the primary PSAP (which must be a public safety agency such as a police or fire department or other division of state or municipal government that provides emergency services) or on an alternative routing basis.

2 The statute distinguishes between three types of public safety answering points or PSAPs: primary PSAPs, secondary PSAPs, and ringing PSAPs. A primary PSAP is distinguished from a secondary PSAP in that a primary PSAP "is the first point of reception of a 911 call," while a secondary PSAP "receives 911 calls only when they are transferred from the primary public safety answering point or on an alternative routing basis when calls cannot be completed to the primary public safety answering point." M.G.L. c. 6A, § 18A. Both primary and secondary PSAPs are equipped with automatic number identification and automatic location identification displays. "Automatic number identification" ("ANI") is defined as an E-911 service capability that allows for the automatic display of the seven digit number used to place a 911 call, while "automatic location identification" ("ANI") refers to an E-911 service capability that allows for the automatic display of information relating to the geographical location of the telephone used to place a 911 call. Id. Finally, a ringing PSAP does not have capability to receive ANI or ALI; a ringing PSAP is "equipped for receipt of voice communications only," and it "receives 911 calls that are transferred from the primary public safety answering point." Id.

3 A private safety agency is defined by statute as "any entity, except for a municipality or a public safety agency, providing emergency police, fire, ambulance or medical services." M.G.L. c. 6A, § 18A. A public safety agency is defined as "a functional division of a municipality or the state" which provides the same services as are provided by a private safety agency. Id.

4 I note that the operational standards adopted by the Board require that personnel responding to a call verify the location of the emergency with the 911 caller, see 560 C.M.R. § 2.06(3)(a)(3); and that the Board has indicated that it interprets the standard to require the primary PSAP to remain on the line until the ringing PSAP has verified the information. The foregoing standard, nevertheless, may not eliminate all potential delays, particularly in the situation where the ringing PSAP incorrectly records information concerning the location.

5 The Board's "Required Contract Guidelines for Municipalities Utilizing Private EMS Providers," adopted in January, 1996, require municipalities to enter into written agreements with private ambulance providers in order to utilize and authorize such providers to receive transferred 911 voice calls and ANI/ALI data. The Guidelines provide, among other things, that the written agreements must require the private provider to comply with laws and regulations concerning site security and security of data, as well as other relevant Massachusetts general laws. The Guidelines further provide that the municipality and Board, in consultation with one another will have authority to terminate delivery of ANI/ALI data to a private provider for various reasons, including inappropriate use of that data.