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Calif. Court Ruling Limits Revenue Options for Cash-Strapped EMS Systems

SAN FRANCISCO -- A city needs two-thirds voter approval before charging phone customers a monthly fee for access to the 911 emergency call system, a state appeals court said Tuesday in a ruling that constricts the revenue options of cash-strapped local governments.

The decision by the First District Court of Appeal in San Francisco applies only to the $3.22-a-month charge that the City Council of Union City approved in 2003 to pay costs of maintaining and upgrading its 911 system.

But another 20 to 25 cities in California, including San Francisco, rely on similar fees, and many more are considering them, said Michael Riback, a lawyer for Union City. Those fees could be vulnerable under Tuesday's ruling, if it stands. Riback said the City Council will decide whether to appeal to the state Supreme Court.

San Francisco imposed a phone user fee to help fund improvements in its emergency response system after the July 1993 bloodbath at 101 California St., where an angry client of a law firm killed eight people and wounded six before fatally shooting himself. City officials said a flawed 911 system contributed to a 42-minute delay before paramedics reached the victims.

If such fees require voter approval, some cities will cut their 911 funding, "the quality of emergency response will be compromised and people may die," San Francisco City Attorney Dennis Herrera's office said in written arguments to the appeals court on behalf of city and county governments.

The appeals court, in a 3-0 ruling, said Union City's levy is a tax, not a user fee, because it applies to all customers regardless of whether or how often they call 911. Proposition 218, a 1996 ballot initiative, requires a two-thirds public vote for all local taxes but does not cover user fees.

A statewide telephone surcharge pays part of the cost of local 911 systems, which were mandated by state law in 1972. But city and county governments say the state funds now support only a small fraction of the cost of a basic system and don't cover essential upgrades, like the ability to track callers, link them with the proper agency and reconnect when a caller hangs up.

Union Cityused its general funds for 911 service until 2003, when its council assessed the monthly fee against all phone customers, including wireless customers who primarily use their cell phones or pagers in Union City.

The levy was challenged in 2004 by three wireless phone companies AT&T, Verizon and Cingular and two individuals. Alameda County Superior Court Judge Winifred Smith ruled the fee invalid in May 2006, and the appeals court upheld her ruling Tuesday.

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