Bill Text: CA AB1050 | 2011-2012 | Regular Session | Amended
Bill Title: Telecommunications: prepaid mobile telephony services:
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2012-08-08 - From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on GOV. & F. [AB1050 Detail]
Download: California-2011-AB1050-Amended.html
BILL NUMBER: AB 1050 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 8, 2012
AMENDED IN SENATE AUGUST 7, 2012
AMENDED IN SENATE SEPTEMBER 8, 2011
AMENDED IN ASSEMBLY MAY 27, 2011
AMENDED IN ASSEMBLY MAY 10, 2011
AMENDED IN ASSEMBLY APRIL 25, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Ma
FEBRUARY 18, 2011
An act to amend, repeal, and add Section 17538.9 of the
Business and Professions Code, to amend Section 224.4 of, to amend,
repeal, and add Section 431 of, and to add and repeal
Section 316 to of, the Public
Utilities Code, and to amend Sections 41020 and 41030 of, to add
and repeal Section 41030.1 of, and to add and repeal
Part 21 (commencing with Section 42000) to
of Division 2 of , the Revenue and Taxation
Code, relating to telecommunications, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1050, as amended, Ma. Telecommunications: prepaid mobile
telephony services: taxes and fees. state
surcharge.
(1) The existing Emergency Telephone Users Surcharge Act generally
imposes a surcharge on amounts paid by every person in the state for
intrastate telephone service to provide revenues sufficient to fund
"911" emergency telephone system costs. Surcharge
Before July 1, 2013, amounts are determined annually
by the California Technology Agency, and on and after that date, by
the Department of Technology, and upon collection are paid to
the State Board of Equalization on a monthly basis by the telephone
service supplier and are deposited into the State Treasury to the
credit of the State Emergency Telephone Number Account in the General
Fund, to be expended for limited purposes, including to pay the
Department of General Services for its costs in administration of the
"911" emergency telephone number system.
Under existing law, the Public Utilities Commission (PUC)
has regulatory authority over public utilities, including
telephone corporations, and is authorized to fix just and reasonable
rates and charges for services provided by those public utilities.
Existing law establishes the Public Utilities Commission Utilities
Reimbursement Account and authorizes the commission
PUC to annually determine a fee to be paid by
every public utility providing service directly to customers or
subscribers and subject to the jurisdiction of the
commission PUC , except for a railroad
corporation. The commission PUC is
required to establish the fee, with the approval of the Department of
Finance, to produce a total amount equal to that amount established
in the authorized commission PUC budget
for the same year, and an appropriate reserve to regulate public
utilities, less specified sources of funding. Existing law
establishes the state's telecommunications universal service programs
and authorizes the commission PUC to
impose charges for the purpose of funding those programs.
Pursuant to this authority, the PUC has established 6 end-user
surcharges to fund 6 universal service programs.
This bill would enact the Prepaid Wireless
Mobil e Telephony Services Surcharge and
Collection Act. The bill would establish a prepaid
communications charge MTS surcharge , as
defined, based upon a percentage of the sales price of each retail
transaction that occurs in this state for prepaid mobile telephony
services, as defined. The prepaid communications charge
MTS surcharge would include a state
component, as defined, and if a local government has adopted utility
user taxes or other specified charges that are otherwise applicable
to prepaid mobile telephony services and the retail transaction
occurs within that jurisdiction, a local component. The bill would
state the intent of the Legislature to develop a method whereby a
seller is required to collect the local component the
emergency telephone users surcharge, as defined, and PUC surcharges,
as defined . The bill would require a seller, as defined, to
collect the prepaid communications charge MTS
surcharge, as provided, from a prepaid consumer
, as defined, and remit the amounts collected to the State
Board of Equalization pursuant to the Fee Collection Procedures Law.
The bill would require the board, after deducting its
administrative expenses, to remit that portion of the state component
collected pursuant to the Emergency Telephone Users Surcharge Act to
the California Technology Agency and remit the balance of the state
component to the Public Utilities Commission. The bill would require
the State Board of Equalization to remit the local component, if
applicable, to the local government. The bill would
require the board, after deducting its administrative expenses, to
deposit the amounts collected in the Prepaid Mobile Telephony
Services Surcharge Fund, which the bill would establish in the State
Treasury, as provided. The bill would require the
Public Utilities Commission PUC to annually
compute the commission's PUC's
reimbursement fee and specified telecommunications
6 universal service program fees, to post notice of those
fees on its Internet Web site, and to notify the State Board of
Equalization of the amounts , which would be adjusted, as
specified, and whi ch together would be the PUC
surcharges. The bill would require the California Technology Agency
to annually compute, as specified, the intrastate portion of the 911
surcharge to be collected on prepaid mobile telephony services
to post notice of those charges and to notify the State Board of
Equalization of the amount, which would be the emergency telephone
users surcharge .
Existing law defines mobile telephony services for purposes of the
Public Utilities Code.
This bill would revise that definition and incorporate that
definition for purposes of the Prepaid Mobile Telephony Services
Surcharge and Collection Act.
(2) Existing law establishes requirements for consumer disclosure
and service that are applicable to the advertising and sale of
prepaid calling cards, as defined, and prepaid calling services, as
defined, including the disclosure of ancillary services, as defined.
This bill would except the prepaid MTS surcharge from the
definition of ancillary services if the surcharge is disclosed,
collected, and remitted pursuant to the Prepaid Mobile Telephony
Services Surcharge and Collection Act.
(2)
(3) The Fee Collection Procedures Law makes a violation
of any provision of the law, or of certain requirements imposed by
the board pursuant to the law, a crime.
By expanding the application of the Fee Collection Procedures Law,
the violation of which is a crime, this bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
(4) This bill would state that changes made by this bill to amend
and add specified code sections are not intended to supersede changes
made by Section 310 of the Governor's Reorganization Plan No. 2 of
2012, which took effect on July 3, 2012, and will become fully
operative on July 1, 2013.
(5) Provisions of this bill would become inoperative on January 1,
2017, and the Prepaid Mobile Telephony Services and Collection Act
would be repealed on that date. The bill would further state the
intent of the Legislature to develop and implement means to collect
local utility user taxes and local communications related-charges on
the purchase of prepaid mobile telephony services with the intent
that the state MTS surcharge and those local charges would be in a
uniform manner consistent with this bill collection procedures by
that date.
(3)
(6) This bill would declare that it is to take effect
immediately as an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17538.9 of the
Business and Professions Code is amended to read:
17538.9. (a) For the purposes of this section:
(1) "Ancillary charges" means all surcharges, taxes, fees,
connection charges, maintenance fees, monthly or other periodic fees,
per-call access fees, or other assessments or charges of any kind,
however denominated, that may be imposed in connection with the use
of a card or services, other than the per unit or per minute rate
charged. "Ancillary charges" do not include charges disclosed,
collected, and remitted pursuant to the Prepaid Mobile Telephony
Services Surcharge and Collection Act (Part 21 (commencing with
Section 42000) of Division 2 of the Revenue and Taxation Code).
(2) "Cellular telephone services" means facilities-based,
commercial mobile telephone services commercially
available interconnected mobile phone services that provide voice
communication access to the public switched telephone network (PSTN)
by way of mobile communication devices employing radiowave
technology, also known as cellular technology, to transmit calls,
including cellular radiotelephone, broadband Personal Communications
Services (PCS), digital Specialized Mobile Radio (SMR), or another
radio band licensed by the Federal Communications Commission. For
these purposes, "cellular telephone services" has the same meaning as
"mobile telephony services" as defined in Section 224.4 of the
Public Utilities Code .
(3) "Company" refers to any entity providing prepaid calling
services to the public using its own or a resold telecommunications
network.
(4) "Distributor" means any person who offers or sells a card or
services to a retail vendor or to any other person for ultimate
resale to a retail vendor.
(5) "Prepaid calling card" or "card" means any object containing
an access number and authorization code that enables a consumer to
use prepaid calling services. It does not include any object of that
type used for promotional purposes.
(6) "Prepaid calling services" or "services" refers to any prepaid
telecommunications service that allows consumers to originate calls
through an access number and authorization code, whether manually or
electronically dialed.
(7) "Retail vendor" means any person who sells a card or service
to a consumer for use in making telephone calls.
(b) The following standards and requirements for consumer
disclosure and services shall apply to the advertising and sale of
prepaid calling cards and prepaid calling services:
(1) Any advertisement of the price, rate, or unit value in
connection with the sale of prepaid calling cards or services shall
clearly and conspicuously disclose all of the following:
(A) Any geographic limitation to the advertised price, rate, or
unit value.
(B) All ancillary charges and the conditions under which each
applies. This disclosure shall be made prominently near the beginning
of the advertisement. In a written advertisement this disclosure
shall appear in table form in a box with the bold label, "Other
Charges." The amount of each ancillary charge shall be identified in
one column and the conditions under which each applies shall be
stated on the same line in the column immediately to the right of the
charge.
(2) The following information shall be legibly printed on the
card:
(A) The name of the company.
(B) A toll-free customer service number.
(C) A toll-free network access number, if required to access
service.
(D) The authorization code, if required to access service.
(E) The expiration date or policy, if applicable, except where
paragraph (11) applies.
(3) The company shall print legibly on the card or packaging, so
that it may be read without having to open any packaging, and the
retail vendor shall make available clearly and conspicuously in a
prominent area immediately proximate to the point of sale of the
prepaid calling card or prepaid calling services the following
information, which shall be current at the time of printing and for
as long as it is displayed:
(A) The value of the card and all ancillary charges.
(B) Ancillary charges for international calls to each country for
which the card may be used or, in lieu of disclosing ancillary
charges for each country, the highest ancillary charges for any
international calls applicable on that card and any additional or
different prices, rates, or unit values applicable to international
usage of the prepaid calling card or prepaid calling services.
(C) The minimum charge per call, such as a three-minute minimum
charge, if any.
(D) The definition of the term "unit," if applicable.
(E) The billing decrement.
(F) The name of the company.
(G) The recharge policy, if any.
(H) The refund policy, if any.
(I) The expiration policy, if any.
(J) The 24-hour customer service toll-free telephone number
required in paragraph (9).
(4) Before a customer has recharged a card or service, no company
shall provide fewer minutes than those stated, charge more than the
rate stated, or charge more for ancillary services than stated on the
card or packaging, or in an advertisement available to the public at
the time the card or service is purchased.
(5) Service may be recharged by the customer at a rate higher than
the rate at initial purchase or last recharge. However, the customer
shall be informed of any increased rates or charges prior to the
customer agreeing to pay for the recharge.
(6) If a language other than English is used on the card or
packaging to provide dialing instructions to place a call or to
contact customer service, the information required by paragraph (3)
shall also be disclosed in that language in the point of sale
disclosure in the manner described in paragraph (3).
(7) If a language other than English is used in the advertising or
promotion of the card or prepaid calling services or is used on the
card or packaging other than for dialing instructions, the
information required by paragraph (3) shall also be disclosed in that
language on the card or packaging and in the point of sale
disclosure in the manner described in paragraph (3).
(8) A company shall provide a voice prompt, immediately after a
caller enters a personal identification number and destination
number, that states the number of minutes for that call if the entire
remaining value of the card or service were consumed in one
continuous call to the dialed destination, substantially in the
following form:
"You have insert number] minutes if used up in this call."
(9) A company shall establish and maintain a toll-free customer
service telephone number that shall meet the following requirements:
(A) A live operator shall answer incoming calls to the telephone
number 24 hours a day, seven days a week.
(B) The telephone number shall have sufficient capacity and
staffing to accommodate a reasonably anticipated number of calls
without incurring a busy signal or undue wait. The company shall
provide customer service in each language used on a prepaid calling
card or its packaging and in the advertising or promotion of the
prepaid calling card or prepaid calling services.
(C) The telephone number shall allow consumers to lodge complaints
and obtain information on all of the following:
(i) All rates and ancillary charges.
(ii) The company's recharge, refund, and expiration policies.
(iii) The balance of use available in the consumer's account, if
applicable.
(D) A company shall not impose any ancillary charge related to
obtaining customer service, including any charge related to
connecting with the customer service number or waiting to speak to a
live operator.
A company offering prepaid cellular telephone services shall be
deemed to be in compliance with the requirements of this paragraph
if, when a request for information is made outside of normal business
hours, that company provides the information requested on the next
business day.
(10) A company that issues prepaid calling cards or prepaid
calling services shall provide a refund to any purchaser of a prepaid
calling card or prepaid calling services if the network services
associated with that card or services fail to operate in a
commercially reasonable manner. The refund shall be in an amount not
less than the value remaining on the card or in the form of a
replacement card, and shall be provided to the consumer within 30
days from the date of receipt of notification from the consumer that
the card has failed to operate in a commercially reasonable manner.
(11) Cards without a specific expiration date or policy printed on
the card, and with a balance of service remaining, shall be
considered active for a minimum of one year from the date of
purchase, or if recharged, from the date of the last recharge.
(12) In the case of prepaid calling cards or services utilized at
a pay telephone, the company may provide voice prompt notification of
any ancillary charges related to pay telephone usage, in lieu of
providing notice of those ancillary charges as required by paragraph
(1) and by subparagraph (A) of paragraph (3), provided that the
company provides users of prepaid calling cards or services with
reasonable time to terminate the call after notification of the
ancillary charges related to pay telephone usage without incurring
any charge for the call.
(13) A company shall maintain access numbers with sufficient
capacity to accommodate a reasonably anticipated number of calls
without incurring a busy signal or undue delay.
(14) A company may not impose any ancillary charges that are not
disclosed as required by this section or that exceed the amount
disclosed by the company.
(15) A company may not impose any charges if the consumer is not
connected to the number called. For the purpose of this paragraph,
the customer shall not be considered connected to the number called
if the customer receives a busy signal or the call is unanswered.
(16) The value of the card and the amount of any ancillary
charges, that are required to be disclosed by paragraph (3), shall be
expressed in the same format. If the value of a card is expressed in
minutes, the minutes shall be identified as domestic or
international and the identification shall be printed on the same
line or next line as the value of the card in minutes.
(17) No person shall offer or sell any prepaid calling card or
prepaid calling services that do not contain the information required
to be disclosed on the card or packaging as provided in paragraph
(3).
(18) A distributor that sells directly to a retail vendor shall
provide the retail vendor with the current information required by
paragraph (3) in a form that may be displayed by the retail vendor as
provided in paragraph (3).
(c) (1) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is chaptered before January 1, 2017, deletes or extends
that date.
(2) The Legislature finds and declares that it is the intent of
the Legislature to develop and implement a reasonable and equitable
means to collect local utility user taxes and local communications
related charges on prepaid mobile telephony services in addition to
the state charges collected through the Prepaid Mobile Telephony
Services Surcharge and Collection Act (Part 21 (commencing with
Section 42000) of Division 2 of the Revenue and Taxation Code) and
that if the Legislature is unable to develop and implement a
reasonable and equitable means to collect local charges before
January 1, 2017, that collection of the state charges pursuant to the
act will terminate.
SEC. 2. Section 17538.9 is added to the
Business and Professions Code , to read:
17538.9. (a) For the purposes of this section:
(1) "Ancillary charges" means all surcharges, taxes, fees,
connection charges, maintenance fees, monthly or other periodic fees,
per-call access fees, or other assessments or charges of any kind,
however denominated, that may be imposed in connection with the use
of a card or services, other than the per unit or per minute rate
charged.
(2) "Cellular telephone services" means commercially available
interconnected mobile phone services that provide voice communication
access to the public switched telephone network (PSTN) by way of
mobile communication devices employing radiowave technology, also
known as cellular technology, to transmit calls, including cellular
radiotelephone, broadband Personal Communications Services (PCS),
digital Specialized Mobile Radio (SMR), or another radio band
licensed by the Federal Communications Commission. For these
purposes, "cellular telephone services" has the same meaning as
"mobile telephony services" as defined in Section 224.4 of the Public
Utilities Code.
(3) "Company" refers to any entity providing prepaid calling
services to the public using its own or a resold telecommunications
network.
(4) "Distributor" means any person who offers or sells a card or
services to a retail vendor or to any other person for ultimate
resale to a retail vendor.
(5) "Prepaid calling card" or "card" means any object containing
an access number and authorization code that enables a consumer to
use prepaid calling services. It does not include any object of that
type used for promotional purposes.
(6) "Prepaid calling services" or "services" refers to any prepaid
telecommunications service that allows consumers to originate calls
through an access number and authorization code, whether manually or
electronically dialed.
(7) "Retail vendor" means any person who sells a card or service
to a consumer for use in making telephone calls.
(b) The following standards and requirements for consumer
disclosure and services shall apply to the advertising and sale of
prepaid calling cards and prepaid calling services:
(1) Any advertisement of the price, rate, or unit value in
connection with the sale of prepaid calling cards or services shall
clearly and conspicuously disclose all of the following:
(A) Any geographic limitation to the advertised price, rate, or
unit value.
(B) All ancillary charges and the conditions under which each
applies. This disclosure shall be made prominently near the beginning
of the advertisement. In a written advertisement this disclosure
shall appear in table form in a box with the bold label, "Other
Charges." The amount of each ancillary charge shall be identified in
one column and the conditions under which each applies shall be
stated on the same line in the column immediately to the right of the
charge.
(2) The following information shall be legibly printed on the
card:
(A) The name of the company.
(B) A toll-free customer service number.
(C) A toll-free network access number, if required to access
service.
(D) The authorization code, if required to access service.
(E) The expiration date or policy, if applicable, except where
paragraph (11) applies.
(3) The company shall print legibly on the card or packaging, so
that it may be read without having to open any packaging, and the
retail vendor shall make available clearly and conspicuously in a
prominent area immediately proximate to the point of sale of the
prepaid calling card or prepaid calling services the following
information, which shall be current at the time of printing and for
as long as it is displayed:
(A) The value of the card and all ancillary charges.
(B) Ancillary charges for international calls to each country for
which the card may be used or, in lieu of disclosing ancillary
charges for each country, the highest ancillary charges for any
international calls applicable on that card and any additional or
different prices, rates, or unit values applicable to international
usage of the prepaid calling card or prepaid calling services.
(C) The minimum charge per call, such as a three-minute minimum
charge, if any.
(D) The definition of the term "unit," if applicable.
(E) The billing decrement.
(F) The name of the company.
(G) The recharge policy, if any.
(H) The refund policy, if any.
(I) The expiration policy, if any.
(J) The 24-hour customer service toll-free telephone number
required in paragraph (9).
(4) Before a customer has recharged a card or service, no company
shall provide fewer minutes than those stated, charge more than the
rate stated, or charge more for ancillary services than stated on the
card or packaging, or in an advertisement available to the public at
the time the card or service is purchased.
(5) Service may be recharged by the customer at a rate higher than
the rate at initial purchase or last recharge. However, the customer
shall be informed of any increased rates or charges prior to the
customer agreeing to pay for the recharge.
(6) If a language other than English is used on the card or
packaging to provide dialing instructions to place a call or to
contact customer service, the information required by paragraph (3)
shall also be disclosed in that language in the point of sale
disclosure in the manner described in paragraph (3).
(7) If a language other than English is used in the advertising or
promotion of the card or prepaid calling services or is used on the
card or packaging other than for dialing instructions, the
information required by paragraph (3) shall also be disclosed in that
language on the card or packaging and in the point of sale
disclosure in the manner described in paragraph (3).
(8) A company shall provide a voice prompt, immediately after a
caller enters a personal identification number and destination
number, that states the number of minutes for that call if the entire
remaining value of the card or service were consumed in one
continuous call to the dialed destination, substantially in the
following form:
"You have insert number] minutes if used up in this call."
(9) A company shall establish and maintain a toll-free customer
service telephone number that shall meet the following requirements:
(A) A live operator shall answer incoming calls to the telephone
number 24 hours a day, seven days a week.
(B) The telephone number shall have sufficient capacity and
staffing to accommodate a reasonably anticipated number of calls
without incurring a busy signal or undue wait. The company shall
provide customer service in each language used on a prepaid calling
card or its packaging and in the advertising or promotion of the
prepaid calling card or prepaid calling services.
(C) The telephone number shall allow consumers to lodge complaints
and obtain information on all of the following:
(i) All rates and ancillary charges.
(ii) The company's recharge, refund, and expiration policies.
(iii) The balance of use available in the consumer's account, if
applicable.
(D) A company shall not impose any ancillary charge related to
obtaining customer service, including any charge related to
connecting with the customer service number or waiting to speak to a
live operator.
A company offering prepaid cellular telephone services shall be
deemed to be in compliance with the requirements of this paragraph
if, when a request for information is made outside of normal business
hours, that company provides the information requested on the next
business day.
(10) A company that issues prepaid calling cards or prepaid
calling services shall provide a refund to any purchaser of a prepaid
calling card or prepaid calling services if the network services
associated with that card or services fail to operate in a
commercially reasonable manner. The refund shall be in an amount not
less than the value remaining on the card or in the form of a
replacement card, and shall be provided to the consumer within 30
days from the date of receipt of notification from the consumer that
the card has failed to operate in a commercially reasonable manner.
(11) Cards without a specific expiration date or policy printed on
the card, and with a balance of service remaining, shall be
considered active for a minimum of one year from the date of
purchase, or if recharged, from the date of the last recharge.
(12) In the case of prepaid calling cards or services utilized at
a pay telephone, the company may provide voice prompt notification of
any ancillary charges related to pay telephone usage, in lieu of
providing notice of those ancillary charges as required by paragraph
(1) and by subparagraph (A) of paragraph (3), provided that the
company provides users of prepaid calling cards or services with
reasonable time to terminate the call after notification of the
ancillary charges related to pay telephone usage without incurring
any charge for the call.
(13) A company shall maintain access numbers with sufficient
capacity to accommodate a reasonably anticipated number of calls
without incurring a busy signal or undue delay.
(14) A company may not impose any ancillary charges that are not
disclosed as required by this section or that exceed the amount
disclosed by the company.
(15) A company may not impose any charges if the consumer is not
connected to the number called. For the purpose of this paragraph,
the customer shall not be considered connected to the number called
if the customer receives a busy signal or the call is unanswered.
(16) The value of the card and the amount of any ancillary
charges, that are required to be disclosed by paragraph (3), shall be
expressed in the same format. If the value of a card is expressed in
minutes, the minutes shall be identified as domestic or
international and the identification shall be printed on the same
line or next line as the value of the card in minutes.
(17) No person shall offer or sell any prepaid calling card or
prepaid calling services that do not contain the information required
to be disclosed on the card or packaging as provided in paragraph
(3).
(18) A distributor that sells directly to a retail vendor shall
provide the retail vendor with the current information required by
paragraph (3) in a form that may be displayed by the retail vendor as
provided in paragraph (3).
(c) This section shall become operative on January 1, 2017.
SEC. 3. Section 224.4 of the Public
Utilities Code is amended to read:
224.4. (a) "Mobile data service" means the delivery of nonvoice
information over a radio band licensed by the Federal
Communications Commission, to a mobile device and includes
nonvoice information communicated to a mobile telephony services
handset, nonvoice information communicated to handheld personal
digital assistant (PDA) devices and laptop computers, and mobile
paging service carriers offering services on pagers and two-way
messaging devices. "Mobile data service" includes mobile
broadband service offering connectivity over a radio band licensed by
the Federal Communications Commission. Unless specified
to the contrary , "mobile data service" does not include
nonvoice information communicated through a wireless local area
network operating in the unlicensed radio bands, commonly known as a
"Wi-Fi" network.
(b) "Mobile paging service" means the transmission of coded radio
signals over a radio band licensed by the Federal Communications
Commission, for the purpose of activating specific small radio
receivers designed to be carried by a person and to give an aural,
visual, or tactile indication when activated.
(c) "Mobile satellite telephone service" means voice communication
to end users over a mobile satellite service involving the provision
of commercial mobile radio service, pursuant to Parts 20 and 25 of
Title 47 of the Code of Federal Regulations.
(d) "Mobile telephony service" means commercially available
interconnected mobile phone services that provide voice
communication access to the public switched telephone network
(PSTN) via by way of mobile
communication devices employing radiowave technology to transmit
calls, including cellular radiotelephone, broadband Personal
Communications Services (PCS), and digital
Specialized Mobile Radio (SMR) , or another radio band
licensed by the Federal Communications Commission .
"Mobile telephony services" does not include mobile satellite
telephone services or mobile data services used exclusively for the
delivery of nonvoice information to a mobile device.
SECTION 1. SEC. 4. Section 316 is
added to the Public Utilities Code, to read:
316. (a) The commission shall annually, on or before
December 31 October 1 of each year, commencing October
1, 2013 , compute a reimbursement fee as a percentage of
the sales price for prepaid mobile telephony services, to be
effective on January 1 of
the following year and to be collected and remitted to
the commission pursuant to the Prepaid Wireless
Mobile Telephony Services Surcharge and
Collection Act (Part 21 (commencing with Section 42000) of
Division 2 of the Revenue and Taxation Code). On or before
January 15 of the following October 15 of each
year , commencing October 15, 2013 , the commission shall
post notice of the reimbursement fee on its Internet Web
site and notify the State Board of Equalization of this information.
(b) The commission shall annually, on or before December
31 October 1 of each year, commencing
October 1, 2013 , compute the cumulative of the
telecommunications universal service fees
surcharges as a percentage of the sales price for prepaid mobile
telephony services, to be effective on January 1 of the following
year and to be collected and remitted to the
commission pursuant to the Prepaid Wireless
Mobile Telephony Services Surcharge and
Collection Act (Part 21 (commencing with Section 42000) of
Division 2 of the Revenue and Taxation Code). On or before
January 15 of the following October 15 of each
year, commencing October 15, 2013, the commission shall
post notice of the fee cumulative surcharge
on its Internet Web site and notify the State Board of
Equalization of this information.
(c) (1) Nothing in this section restricts the commission's
authority to adjust reimbursement fees or universal service fees or
requires that they only be adjusted once annually.
(2) In annually computing reimbursement fees and universal service
fees to be collected and remitted to the commission pursuant to this
section, the commission shall adjust the fees to account for any
past overcollection of fees from prepaid mobile telephony service
customers resulting from a reduction in fees made subsequent to
December 31 of the previous year.
(3) In annually computing reimbursement fees and universal service
fees to be collected and remitted to the commission pursuant to this
section, the commission may adjust the fees to account for any past
undercollection of fees from prepaid mobile telephony service
customers resulting from an increase in fees made subsequent to
December 31 of the previous year.
(4) If both upward and downward adjustments are made to
reimbursement fees and universal service fees subsequent to December
31, the commission may adjust how collections are deposited into the
reimbursement and universal service accounts so that overcollections
or undercollections are minimized.
(5) It is the intent of the Legislature that reimbursement fees
and universal service fees be applied, as much as possible, in a
competitively neutral manner that does not favor either prepaid or
postpaid payment for mobile telephony services, and that, over time,
collections of state charges from prepaid and postpaid mobile
telephony service customers balance out so that neither pay a
disportionate amount.
(d) (1) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is chaptered before January 1, 2017, deletes or extends
that date.
(2) The Legislature finds and declares that it is the intent of
the Legislature to develop and implement a reasonable and equitable
means to collect local utility user taxes and local communications
related charges on prepaid mobile telephony services in addition to
the state charges collected through the Prepaid Mobile Telephony
Services Surcharge and Collection Act (Part 21 (commencing with
Section 42000) of Division 2 of the Revenue and Taxation Code) and
that if the Legislature is unable to develop and implement a
reasonable and equitable means to collect local charges, that
collection of the state charges pursuant to the act will terminate.
The Legislature further finds and declares that this section
implements collection of the state charges pursuant to the act and if
the Legislature is unable to develop and implement a reasonable and
equitable means to collect local charges before January 1, 2017, that
this section should be repealed.
SEC. 5. Section 431 of the Public
Utilities Code is amended to read:
431. (a) The commission shall annually
determine a fee to be paid by every electrical, gas, telephone,
telegraph, water, sewer system, and heat corporation and every other
public utility providing service directly to customers or subscribers
and subject to the jurisdiction of the commission other than a
railroad, except as otherwise provided in Article 2 (commencing with
Section 421) , for common carriers and related businesses, and
as otherwise provided in Section 316, for prepaid mobile telephony
service providers .
The
(b) The annual fee shall be
established to produce a total amount equal to that amount
established in the authorized commission budget for the same year,
including adjustments for increases in employee compensation, other
increases appropriated by the Legislature, and an appropriate reserve
to regulate public utilities less the amount to be paid from special
accounts or funds pursuant to Section 402, reimbursements, federal
funds, and any other revenues, and the amount of unencumbered funds
from the preceding year.
This
(c) This article shall not apply
to any electrical cooperative as defined in Chapter 5 (commencing
with Section 2776) of Part 2.
On and after January 1, 1985, this article shall apply to
radiotelephone utilities as defined in Section 4902 as those
provisions read on December 31, 1984.
(d) (1) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is chaptered before January 1, 2017, deletes or extends
that date.
(2) The Legislature finds and declares that it is the intent of
the Legislature to develop and implement a reasonable and equitable
means to collect local utility user taxes and local communications
related charges on prepaid mobile telephony services in addition to
the state charges collected through the Prepaid Mobile Telephony
Services Surcharge and Collection Act (Part 21 (commencing with
Section 42000) of Division 2 of the Revenue and Taxation Code) and
that if the Legislature is unable to develop and implement a
reasonable and equitable means to collect local charges, that
collection of the state charges pursuant to the act will terminate.
The Legislature further finds and declares that the changes made to
this section by Assembly Bill No. 1050 of the 2011-12 Regular
Session, implement collection of the state charges pursuant to the
act and if the Legislature is unable to develop and implement a
reasonable and equitable means to collect local charges before
January 1, 2017, that the content of this section should revert back
to what it was prior to its amendment by A.B. 1050.
SEC. 6. Section 431 is added to the
Public Utilities Code , to read:
431. (a) The commission shall annually determine a fee to be paid
by every electrical, gas, telephone, telegraph, water, sewer system,
and heat corporation and every other public utility providing
service directly to customers or subscribers and subject to the
jurisdiction of the commission other than a railroad, except as
otherwise provided in Article 2 (commencing with Section 421).
(b) The annual fee shall be established to produce a total amount
equal to that amount established in the authorized commission budget
for the same year, including adjustments for increases in employee
compensation, other increases appropriated by the Legislature, and an
appropriate reserve to regulate public utilities less the amount to
be paid from special accounts or funds pursuant to Section 402,
reimbursements, federal funds, and any other revenues, and the amount
of unencumbered funds from the preceding year.
(c) This article shall not apply to any electrical cooperative as
defined in Chapter 5 (commencing with Section 2776) of Part 2.
(d) This section shall become operative on January 1, 2017.
SEC. 7. Section 41020 of the Revenue
and Taxation Code is amended to read:
41020. (a) A surcharge is hereby imposed on amounts paid by every
person in the state for both of the following:
(1) (A) Intrastate telephone communication
service in this state commencing on July 1, 1977 .
(B) The surcharge shall be applied to prepaid mobile
telecommunications services pursuant to the Prepaid Mobile Telephony
Services Surcharge and Collection Act (Part 21 (commencing with
Section 42000)), and the calculation of the intrastate portion of
charges for prepaid mobile telecommunications services shall be made
pursuant to paragraph (1) of subdivision (b) of Section 42010. This
subparagraph shall become inoperative on January 1, 2017. The
Legislature finds and declares that it is the intent of the
Legislature to develop and implement a reasonable and equitable means
to collect local utility user taxes and local communications related
charges on prepaid mobile telephony services in addition to the
state charges collected through the Prepaid Mobile Telephony Services
Surcharge and Collection Act (Part 21 (commencing with Section
42000)) and that if the Legislature is unable to develop and
implement a reasonable and equitable means to collect local charges,
that collection of the state charges pursuant to the act will
terminate. The Legislature further finds and declares that this
subparagraph implements collection of the state charges pursuant to
the act and if the Legislature is unable to develop and implement a
reasonable and equitable means to collect local charges before
January 1, 2017, that this subparagraph is to become inoperative.
(2) VoIP service that provides access to the "911" emergency
system by utilizing the digits 9-1-1 by any service user in this
state commencing on January 1, 2009. The surcharge shall not apply to
charges for VoIP service where any point of origin or destination is
outside of this state.
(b) (1) Notwithstanding Section 41025, charges not subject to the
surcharge may be calculated by a service supplier based upon books
and records kept in the regular course of business, and, for purposes
of calculating the interstate revenue portion not subject to the
surcharge, a service supplier may also choose a reasonable and
verifiable method from the following:
(A) Books and records kept in the regular course of business.
(B) Traffic or call pattern studies representative of the service
supplier's business within California.
(C) For VoIP service only, the VoIP safe harbor factor established
by the FCC to be used to calculate the service supplier's
contribution to the federal Universal Service Fund. The FCC safe
harbor factor in effect for VoIP service on September 1 of each year
shall apply for the period of January 1 through December 31,
inclusive, of the next succeeding calendar year for purposes of this
method. At such time as the FCC establishes a safe harbor factor for
the federal Universal Service Fund for VoIP service that is greater
than 75 percent for interstate revenue or abolishes the safe harbor
factor applicable to VoIP service, this method shall become void and
of no effect, in which case a VoIP service supplier may use an
alternative method approved in advance by the board, which shall be
available to all VoIP service suppliers. The FCC safe harbor factor
applicable to VoIP service, as described in this subparagraph, is
used solely as a mechanism to calculate the charges not subject to
the surcharge for VoIP service and is not necessarily reflective of
the intrastate portion of VoIP service. The use of the FCC safe
harbor factor authorized by this subdivision shall not be interpreted
to permit application of any intrastate requirement, other than the
surcharge imposed under this part, upon VoIP service suppliers.
(2) Any method chosen by a service supplier shall remain in effect
for at least one calendar year.
(3) If a service supplier reasonably relies upon books and
records kept in the regular course of business or any documentation
that satisfies the reasonable and verifiable method, then the service
supplier's determination of the portion of the billed amount
attributable to services not subject to the surcharge shall be
rebuttably presumed to be correct. The service supplier's choice of
books and records or other method and surcharge billing practice
shall also be rebuttably presumed to be fair and legal business
practices.
(4) It is the intent of the Legislature that the provisions of
subparagraph (C) shall not be considered to be a precedent for the
application of the surcharge or any other tax or fee where a person
is required to collect a tax or fee imposed upon another.
(c) The surcharge imposed shall be at the rate of one-half of 1
percent of the charges made for such services to and including
November 1, 1982, and thereafter at a rate fixed pursuant to Article
2 (commencing with Section 41030).
(d) The surcharge shall be paid by the service user as hereinafter
provided.
(e) The surcharge imposed shall not apply to either of the
following:
(1) In accordance with the Mobile Telecommunications Sourcing Act
(Public Law 106-252), which is incorporated herein by reference, to
any charges for mobile telecommunications services billed to a
customer where those services are provided, or deemed provided, to a
customer whose place of primary use is outside this state. Mobile
telecommunications services shall be deemed provided by a customer's
home service provider to the customer if those services are provided
in a taxing jurisdiction to the customer, and the charges for those
services are billed by or for the customer's home service provider.
(2) To any charges for VoIP service billed to a customer where
those services are provided to a customer whose place of primary use
of VoIP service is outside this state.
(f) For purposes of this section:
(1) "Charges for mobile telecommunications services" means any
charge for, or associated with, the provision of commercial mobile
radio service, as defined in Section 20.3 of Title 47 of the Code of
Federal Regulations, as in effect on June 1, 1999, or any charge for,
or associated with, a service provided as an adjunct to a commercial
mobile radio service, that is billed to the customer by or for the
customer's home service provider, regardless of whether individual
transmissions originate or terminate within the licensed service area
of the home service provider.
(2) "Customer" means (A) the person or entity that contracts with
the home service provider for mobile telecommunications services, or
with a VoIP service provider for VoIP service, or (B) if the end user
of mobile telecommunications services or VoIP service is not the
contracting party, the end user of the mobile telecommunications
service or VoIP service. This paragraph applies only for the purpose
of determining the place of primary use. The term "customer" does not
include (A) a reseller of mobile telecommunications service or VoIP
communication service, or (B) a serving carrier under an arrangement
to serve the mobile customer outside the home service provider's
licensed service area.
(3) "Home service provider" means the facilities-based carrier or
reseller with which the customer contracts for the provision of
mobile telecommunications services.
(4) "Licensed service area" means the geographic area in which the
home service provider is authorized by law or contract to provide
commercial mobile radio service to the customer.
(5) "Mobile telecommunications service" means commercial mobile
radio service, as defined in Section 20.3 of Title 47 of the Code of
Federal Regulations, as in effect on June 1, 1999.
(6) "Place of primary use" means the street address representative
of where the customer's use of the mobile telecommunications service
or VoIP service primarily occurs, that must be:
(A) The residential street address or the primary business street
address of the customer.
(B) With respect to mobile telecommunications service, within the
licensed service area of the home service provider.
(7) (A) "Reseller" means a provider who purchases
telecommunications services or VoIP service from another
telecommunications service provider or VoIP service and then resells
the services, or uses the services as a component part of, or
integrates the purchased services into, a mobile telecommunications
service or VoIP service.
(B) "Reseller" does not include a serving carrier with which a
home service provider arranges for the services to its customers
outside the home service provider's licensed service area.
(8) "Serving carrier" means a facilities-based carrier providing
mobile telecommunications service to a customer outside a home
service provider's or reseller's licensed area.
(9) "Taxing jurisdiction" means any of the several states, the
District of Columbia, or any territory or possession of the United
States, any municipality, city, county, township, parish,
transportation district, or assessment jurisdiction, or any other
political subdivision within the territorial limits of the United
States with the authority to impose a tax, charge, or fee.
(10) "VoIP service provider" means that provider of VoIP service
with whom the end user customer contracts for the provision of VoIP
services for the customer's own use and not for resale.
(g) The amendments made to this section by the act that added this
subdivision shall become operative upon the enactment of that act,
except that subdivisions (a) and (b) of this section, as amended,
shall become operative on January 1, 2009.
SEC. 8. Section 41030 of the Revenue
and Taxation Code is amended to read:
41030. (a) The California Technology Agency
shall determine annually, on or before October 1, a surcharge rate
that it estimates will produce sufficient revenue to fund the current
fiscal year's 911 costs. The surcharge rate shall be determined by
dividing the costs (including incremental costs) the California
Technology Agency estimates for the current fiscal year of 911 plans
approved pursuant to Section 53115 of the Government Code, less the
available balance in the State Emergency Telephone Number Account in
the General Fund, by its estimate of the charges for intrastate
telephone communications services and VoIP service to which the
surcharge will apply for the period of January 1 to December 31,
inclusive, of the next succeeding calendar year, but in no event
shall such surcharge rate in any year be greater than three-quarters
of 1 percent nor less than one-half of 1 percent.
(b) (1) This section shall become operative on January 1, 2017.
(2) The Legislature finds and declares that it is the intent of
the Legislature to develop and implement a reasonable and equitable
means to collect local utility user taxes and local communications
related charges on prepaid mobile telephony services in addition to
the state charges collected through the Prepaid Mobile Telephony
Services Surcharge and Collection Act (Part 21 (commencing with
Section 42000)) and that if the Legislature is unable to develop and
implement a reasonable and equitable means to collect local charges,
that collection of the state charges pursuant to the act will
terminate. The Legislature further finds and declares that if the
Legislature is unable to develop and implement a reasonable and
equitable means to collect local charges by January 1, 2017, that
this section shall become operative.
SEC. 9. Section 41030.1 is added to the
Revenue and Taxation Code , to read:
41030.1. (a) The California Technology Agency shall determine
annually, on or before October 1, to be effective on January 1 of the
following year, a surcharge pursuant to subdivision (b), that it
estimates will produce sufficient revenue to fund the current fiscal
year's 911 costs.
(b) The surcharge shall be determined by dividing the costs
(including incremental costs) the California Technology Agency
estimates for the current fiscal year of 911 plans approved pursuant
to Section 53115 of the Government Code, less the available balance
in the State Emergency Telephone Number Account in the General Fund,
by its estimate of the charges for intrastate telephone
communications services, the intrastate portion of prepaid mobile
telecommunications services, and VoIP service to which the surcharge
will apply for the period of January 1 to December 31, inclusive, of
the next succeeding calendar year, but in no event shall such
surcharge in any year be greater than three-quarters of 1 percent nor
less than one-half of 1 percent. On or before October 1, 2013, and
annually on or before October 1 thereafter, in making its estimate of
charges that are applicable to the intrastate portion of prepaid
mobile telecommunications services, the California Technology Agency
shall multiply the surcharge by the inverse of the interstate safe
harbor percentage established by the Federal Communications
Commission for federal universal service contribution purposes,
consistent with the methodology to be used by the board to calculate
the prepaid MTS surcharge pursuant to paragraph (1) of subdivision
(b) of Section 42010.
(c) The California Technology Agency shall notify the board of the
surcharge amount by October 15 of each year, commencing with October
15, 2013. The board shall utilize the surcharge amount to calculate
the emergency telephone users surcharge component of the prepaid MTS
surcharge pursuant to paragraph (1) of subdivision (b) of Section
42010.
(d) (1) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is chaptered before January 1, 2017, deletes or extends
that date.
(2) The Legislature finds and declares that it is the intent of
the Legislature to develop and implement a reasonable and equitable
means to collect local utility user taxes and local communications
related charges on prepaid mobile telephony services in addition to
the state charges collected through the Prepaid Mobile Telephony
Services Surcharge and Collection Act (Part 21 (commencing with
Section 42000)) and that if the Legislature is unable to develop and
implement a reasonable and equitable means to collect local charges,
that collection of the state charges pursuant to the act will
terminate. The Legislature further finds and declares that this
section implements collection of the state charges pursuant to the
act and if the Legislature is unable to develop and implement a
reasonable and equitable means to collect local charges before
January 1, 2017, that this section should be repealed.
SEC. 2. SEC. 10. Part 21 (commencing
with Section 42000) is added to Division 2 of the Revenue and
Taxation Code, to read:
PART 21. PREPAID WIRELESS MOBILE
TELEPHONY SERVICES SURCHARGE AND COLLECTION ACT
CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS
42000. This part shall be known, and may be cited, as the Prepaid
Wireless Mobile Telephony Services
Surcharge and Collection Act.
42002. The Legislature finds and declares all of the following:
(a) Maintaining effective and efficient
telecommunications communications
services, 911 emergency systems, telecommunications-related
communications-related public policy programs to
promote universal service, and various local programs across the
state benefits all persons with access to the telecommunications
system.
(b) Under existing law, end-use communications taxes, fees, and
surcharges, including the Emergency Telephone Users Surcharge Act
(Part 20 (commencing with Section 41001)), telecommunications
universal service surcharges, local 911 emergency system surcharges,
and utility user taxes are important funding mechanisms to assist
state and local governments with the deployment of a variety of
important services and programs to the citizens of this state.
(c)
(b) Providers of end-use communications services ,
including providers of mobile voice telecommunications services,
which the Federal Communications Commission terms mobile telephony
services, are required to collect and remit communications
taxes, fees, and surcharges on various types of communication service
revenues, as provided by existing state or local law.
(d)
(c) Consumers purchase prepaid communications
mobile telephony services at a wide variety of
retail locations and other distribution channels, as well as through
service providers.
(e)
(d) Prepaid communications
mobile telephony services are an important and growing segment
of the communications industry. Prepaid communications
mobile telephony services are often the only
means by which persons with low incomes can obtain limited access to
the telecommunications system.
(f)
(e) To ensure equitable contributions from end-use
consumers of postpaid and prepaid communications
mobile telephony services in this state , there
should be standardization with respect to the method used to collect
communications taxes, fees, and surcharges from end-use consumers of
prepaid communications mobile telephony
services.
(f) Prepaid mobile telephony services are frequently sold by a
third-party retailer that is not the provider of mobile telephony
services, and collecting taxes, fees, and surcharges from prepaid
consumers of mobile telephony services at the time of the retail
transaction is necessary and the most efficient and competitively
neutral means of collection.
42004. For purposes of this part, the following terms have the
following meanings:
(a) "Communications charge" means any and all state and locally
authorized taxes, fees, and surcharges that are applicable to mobile
telephony services, including each of the following:
(1) Surcharges authorized pursuant to the Emergency Telephone
Users Surcharge Act (Part 20 (commencing with Section 41001)) that
are applicable to mobile telephony services.
(2) Charges authorized by the Public Utilities Commission to be
collected from end-use customers of mobile telephony services,
including:
(A) The California High-Cost Fund-A Administrative Committee Fund
program surcharge (Section 275.6 of the Public Utilities Code).
(B) The California High-Cost Fund-B Administrative Committee Fund
program surcharge (Section 739.3 of the Public Utilities Code).
(C) The Deaf and Disabled Telecommunications Program
Administrative Committee Fund surcharge (Section 2881 of the Public
Utilities Code).
(D) The California Teleconnect Fund Administrative Committee Fund
program surcharge (Section 280 of the Public Utilities Code).
(E) The California Advanced Services Fund program surcharge
(Section 281 of the Public Utilities Code).
(F) The Moore Universal Telephone Service Act (Article 8
(commencing with Section 871) of Chapter 4 of Part 1 of Division 1 of
the Public Utilities Code).
(G) Public Utilities Commission reimbursement fees collected
pursuant to Chapter 2.5 (commencing with Section 401) of Part 1 of
Division 1 of the Public Utilities Code.
(3) Local 911 or access line taxes, fees, or surcharges that are
applicable to mobile telephony services.
(4) Local utility user taxes that are applicable to mobile
telephony services.
(b) "Consumer" means a person who purchases prepaid mobile
telephony services in a retail transaction.
(c) "Local component" means those items included in paragraphs (3)
and (4) of subdivision (a), for a retail transaction, as defined in
subdivision (h).
(a) "Board" means the State Board of Equalization.
(b) "Emergency telephone users surcharge" means surcharges
authorized pursuant to the Emergency Telephone Users Surcharge Act
(Part 20 (commencing with Section 41001)) to be billed and collected
from prepaid consumers of mobile telephony services.
(c) "In this state" means within the exterior limits of the State
of California and includes all territory within those limits owned by
or ceded to the United States of America.
(d) "Mobile telephony service" and "mobile data service" have the
same meanings as defined in Section 224.4 of the Public Utilities
Code.
(e) "Prepaid communications charge" means a communications charge
that is required to be collected by a seller from a consumer in the
amount established pursuant to Chapter 2 (commencing with Section
42010).
(f) "Prepaid mobile telephony services" means a purchase of the
right to utilize mobile telephony services, either alone or in
combination with mobile data services, that is paid for in advance
and is sold in predetermined units or dollars of which the number
declines with use in a known amount.
(g) "Provider" means a person or corporation that provides prepaid
mobile telephony services pursuant to a license issued by the
Federal Communications Commission.
(e) "Person" includes any individual, firm, partnership, joint
venture, limited liability company, association, social club,
fraternal organization, corporation, estate, trust, business trust,
receiver, assignee for the benefit of creditors, trustee, trustee in
bankruptcy, syndicate, the United States, this state, any city,
county, city and county, municipality, district, or other political
subdivision of the state, or any other group or combination acting as
a unit.
(f) "Prepaid consumer" means a person who purchases prepaid mobile
telephony services in a retail transaction.
(g) "Prepaid mobile telephony services" means the right to utilize
a mobile device authorized by the Federal Communications Commission
for mobile telecommunications services or information services,
including the download of digital products delivered electronically,
content, and ancillary services, or both telecommunications services
and information services, that is purchased in advance of usage in
predetermined units or dollars, with the right of usage declining in
a known amount upon being used. For these purposes,
"telecommunications service" and "information service" have the same
meanings as defined in Section 153 of Title 47 of the United States
Code.
(h) "Prepaid MTS provider" means a person that provides prepaid
mobile telephony services pursuant to a license issued by the Federal
Communications Commission.
(i) "Prepaid MTS surcharge" means a unitary surcharge that
consists of the emergency telephone users surcharge and the Public
Utilities Commission surcharges, as calculated pursuant to
subdivision (b) of Section 42010.
(j) "Public Utilities Commission surcharges" means surcharges
authorized by the Public Utilities Commission to be billed and
collected from end-use consumers of wireless communications services,
and of which the commission provides the board with notice pursuant
to Section 316 of the Public Utilities Code, including:
(1) The California High-Cost Fund-A Administrative Committee Fund
program surcharge (Section 275.6 of the Public Utilities Code).
(2) The California High-Cost Fund-B Administrative Committee Fund
program surcharge (Section 739.3 of the Public Utilities Code).
(3) The Deaf and Disabled Telecommunications Program
Administrative Committee Fund surcharge (Section 2881 of the Public
Utilities Code).
(4) The California Teleconnect Fund Administrative Committee Fund
program surcharge (Section 280 of the Public Utilities Code).
(5) The California Advanced Services Fund program surcharge
(Section 281 of the Public Utilities Code).
(6) The Moore Universal Telephone Service Act (Article 8
(commencing with Section 871) of Chapter 4 of Part 1 of Division 1 of
the Public Utilities Code).
(7) Public Utilities Commission reimbursement fees imposed
pursuant to Chapter 2.5 (commencing with Section 401) of Part 1 of
Division 1 of the Public Utilities Code.
(h)
(k) "Retail transaction" means the purchase of prepaid
mobile telephony services, either alone or in combination with mobile
data services, from a seller for any purpose other than resale
in the regular course of business. For these purposes, a
"purchase" means any transfer of title or possession, exchange, or
barter, conditional or otherwise .
(i)
(l) "Seller" means a person or corporation
that sells prepaid mobile telephony service to a
prepaid consumer.
(j) "State component" means those portions of the prepaid
communications charge that are collected and remitted for state
services, specifically those items included in paragraphs (1) and (2)
of subdivision (a).
CHAPTER 2. THE PREPAID COMMUNICATIONS CHARGE
MOBILE TELEPHONY SERVICES SURCHARGE
42010. (a) There is hereby imposed upon end-use consumers a
prepaid communications charge that consists of the state component
and the local component, if applicable, to be collected at the time
of the retail transaction based upon a percentage of the sales price
of each retail transaction that occurs in this state.
(b) Beginning ____, the state component of the prepaid
communications charge shall be collected by each seller from the
consumer for each retail transaction that occurs in the state. The
board shall annually post on its Internet Web site the amount of the
state component, to include those amounts determined by the Public
Utilities Commission pursuant to Section 316 of the Public Utilities
Code and those amounts to be collected pursuant to the Emergency
Telephone Users Surcharge Act (Part 20 (commencing with Section
41001)). The board shall post those amounts on its Internet Web site
not less than ____ days prior to the date on which those amounts
shall go into effect as the new amount of the state component.
(c) It is the intent of the Legislature to develop a method for
sellers to also collect a local component if the retail transaction
occurs within a local governmental jurisdiction that has elected to
impose such a charge, or more than one such charge.
(d) A seller collecting prepaid communications charges pursuant to
this part may rely upon the accuracy of the information posted on
the board's Internet Web site in collecting those charges.
(e) The amount of the prepaid communications charge shall be
separately stated on an invoice, receipt, or other similar document
that is provided to the consumer by the seller or otherwise disclosed
to the consumer. The seller may, but is not required to, separately
provide the state component and local component of the prepaid
communications charge.
42012. For purposes of this chapter, a retail transaction occurs
in this state, and within a local governmental jurisdiction of the
state, under any of the following circumstances:
(a) The consumer makes the retail transaction in person at a
business location in the state or local jurisdiction.
(b) If subdivision (a) is not applicable, the product is delivered
to the consumer by mail or other form of shipping to an address in
the state that the consumer supplies to the seller for purposes of
mailing or shipping.
(c) If neither subdivision (a) nor (b) is applicable, the seller's
records, maintained in the ordinary course of business, indicate
that the consumer's address is in the state and the records are not
made or kept in bad faith.
(d) If subdivisions (a), (b), and (c) are not applicable, the
consumer gives an address in the state during consummation of the
sale, including the consumer's payment instrument if no other address
is available, and the address is not given in bad faith.
(e) If subdivisions (a), (b), (c), and (d) are not applicable, the
calling number for the mobile telephony service communications
device is associated with an area code located in California.
42010. (a) (1) On and after January 1, 2014, a prepaid MTS
surcharge shall be imposed on each prepaid consumer and shall be
collected by a seller from each prepaid consumer at the time of each
retail transaction for prepaid mobile telephony services in the
state. The prepaid MTS surcharge shall be collected as a percentage
of the amount of each retail transaction that occurs in this state.
(2) The prepaid MTS surcharge shall be in lieu of any charges
imposed pursuant to the Emergency Telephone Users Surcharge Act (Part
20 (commencing with Section 41001)) and the Public Utilities
Commission surcharges for prepaid mobile telephony services.
(b) The prepaid MTS surcharge shall be annually calculated by the
board by no later than November 1 of each year commencing November 1,
2013, by adding the following:
(1) The surcharge rate established pursuant to Section 41030 as of
October 1 of each year, which shall be the surcharge rate
established for intrastate telephone communication service in this
state multiplied by the inverse of the interstate safe harbor
percentage established by the Federal Communications Commission for
federal universal service contribution purposes, as these percentages
may be revised from time to time.
(2) The Public Utilities Commission surcharges, established by the
commission pursuant to Section 316 of the Public Utilities Code, as
of October 1 of each year, multiplied by the inverse of the
interstate safe harbor percentage established by the Federal
Communications Commission for federal universal service contribution
purposes, as these percentages may be revised from time to time.
(c) A seller collecting prepaid MTS surcharges pursuant to this
part may rely upon the accuracy of the information posted on the
board's Internet Web site in collecting those surcharges.
(d) Except for amounts retained pursuant to subdivision (e), all
amounts of the prepaid MTS surcharge collected by sellers shall be
remitted to the board pursuant to Chapter 3 (commencing with Section
42020).
(e) A seller shall be permitted to deduct and retain an amount
equal to ____ percent of the amounts that are collected by the seller
from prepaid consumers for the prepaid MTS surcharge.
(f) The amount of the prepaid MTS surcharge shall be separately
stated on an invoice, receipt, or other similar document that is
provided to the prepaid consumer of mobile telephony services by the
seller, or otherwise disclosed to the prepaid consumer, at the time
of the retail transaction.
(g) The prepaid MTS surcharge is required to be collected by a
seller and any amount unreturned to the prepaid consumer of mobile
telephony services that is not owed as part of the surcharge, but was
collected from the prepaid consumer under the representation by the
seller that it was owed as part of the surcharge, constitute debts
owed by the seller to this state.
(h) (1) Every prepaid consumer of mobile telephony services in
this state is liable for the prepaid MTS surcharge until they have
been paid to this state, except that payment to a seller registered
under this part relieves the prepaid consumer from further liability
for the surcharge. Any surcharge collected from a prepaid consumer
that has not been remitted to the board shall be a debt owed to the
state by the person required to collect and remit the surcharge.
Nothing in this part shall impose any obligation upon a seller to
take any legal action to enforce the collection of the surcharge
imposed by this section.
(2) A credit shall be allowed against, but shall not exceed, the
prepaid MTS surcharge imposed on any prepaid consumer of mobile
telephony services by this part to the extent that the prepaid
consumer has paid emergency telephone users charges, state utility
regulatory commission fees, or state universal service charges on the
purchase to any other state, political subdivision thereof, or the
District of Columbia. The credit shall be apportioned to the charges
against which it is allowed in proportion to the amounts of those
charges.
42012. (a) For purposes of this part, a retail transaction occurs
in the state under any of the following circumstances:
(1) The prepaid consumer makes the retail transaction in person at
a business location in the state (point-of-sale transaction).
(2) If paragraph (1) is not applicable, the prepaid consumer's
address is in the state (known-address transaction). A known-address
transaction occurs in the state under any of the following
circumstances:
(A) The retail sale involves shipping of an item to be delivered
to, or picked up by, the prepaid consumer at a location in the state.
(B) The prepaid consumer is being billed for the retail
transaction at an address in the state.
(C) If the prepaid consumer's address is known by the seller to be
in the state, including if the seller's records maintained in the
ordinary course of business, indicate that the prepaid consumer's
address is in the state and the records are not made or kept in bad
faith.
(D) The prepaid consumer provides an address during consummation
of the retail transaction that is in the state, including an address
provided with respect to the a payment instrument if no other address
is available and the address is not given in bad faith.
(b) If the retail transaction is a point-of-sale transaction, the
consumption of the prepaid mobile telephony service shall be presumed
to be at that location. If the retail transaction is a known-address
transaction, the location shall be as determined in descending order
beginning with subparagraph (A) of paragraph (2), if subparagraph
(A) is inapplicable, then pursuant to subparagraph (B), if both
subparagraph (A) and (B) are inapplicable, then subparagraph (C), and
if subparagraphs (A), (B), and (C) are inapplicable, then
subparagraph (D).
(c) A seller that relies in good faith on information provided by
the board to match the location of a point-of-sale transaction to the
applicable prepaid MTS surcharge amount, collects that amount from
the prepaid consumer, and remits the amount to the board in
compliance with this part, shall not be liable for any additional MTS
surcharge and shall not be required to refund any amounts collected
and paid to the board to the prepaid consumer.
42014. The prepaid communications charge is the
liability of the MTS surcharge is imposed on the
prepaid consumer of mobile telephony services and
not of on the seller or of
on any prepaid MTS provider, except
that the a seller engaged in
business in this state shall be liable to
collect and remit all of the prepaid
communications charges that the seller collects from consumers
pursuant to Chapter 3 (commencing with Section 42020), 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 consumer by the seller
MTS surcharges pursuant to this part .
42016. (a) If prepaid mobile telephony services are sold with one
or more other products for a single, nonitemized price, then the
prepaid communications charge MTS surcharge
shall apply to the entire nonitemized price unless the seller
elects to apply the charge surcharge to
either of the following:
(1) If the purchase price for the prepaid mobile telephony
services component of the bundled charge is disclosed to the
prepaid consumer on a receipt, invoice, or
other written documentation , the prepaid
communications charge shall MTS surcharge may be
calculated based upon that amount.
(2) If the seller can identify the portion of the bundled price
that is attributable to supplying prepaid mobile telephony services
by reasonable and verifiable standards from its books and records
that are kept in the regular course of business for other purposes,
including nontax purposes, the prepaid communications charge
shall may be calculated based upon that amount.
(b) If a minimal amount of prepaid mobile telephony service is
sold for a single, nonitemized price with a mobile telephony service
communications device, commonly termed a cellular telephone, the
seller may elect not to apply the prepaid communications
charge MTS surcharge to the transaction. For
these purposes, a service allotment denominated as 10 minutes or
less, or five dollars ($5) or less, is a minimal amount.
CHAPTER 3. ADMINISTRATION
42020. (a) All prepaid communications charges collected by
sellers shall be remitted to the board pursuant to the Fee Collection
Procedures Law (Part 30 (commencing with Section 55001)). Not later
than ____, the board shall establish registration and payment
procedures for sellers consistent with the Fee Collection Procedures
Law.
(b) A seller shall be permitted to deduct and retain ____ percent
of the prepaid communications charges that are collected by the
seller from consumers.
(c) The audit and appeal procedures of the Fee Collection
Procedures Law (Part 30 (commencing with Section 55601)) shall apply
to the collection and remittance of prepaid communications charges.
(d) The board shall establish procedures to be utilized by a
seller to document that a sale is not a retail transaction.
(e) Within 30 days of receipt, and after deducting an amount not
to exceed ____ percent of the collected prepaid communications
charges retained by the board to reimburse its direct costs of
administering the collection and remittance of prepaid communications
charges, the board shall pay all remitted prepaid communications
charges as follows:
(1) The state component shall be remitted as follows:
(A) To the California Technology Agency, that portion of the state
component collected pursuant to the Emergency Telephone Users
Surcharge Act (Part 20 (commencing with Section 41001)).
(B) To the Public Utilities Commission, that portion of the state
component collected for those charges authorized by the commission
identified in paragraph (2) of subdivision (a) of Section 42004.
(2) The local component shall be remitted to the local government.
42020. (a) The board shall administer the prepaid MTS surcharge
imposed by this part pursuant to the Fee Collection Procedures Law
(Part 30 (commencing with Section 55001)). For purposes of this part,
the references in the Fee Collection Procedures Law to "fee" shall
include the prepaid MTS surcharge imposed by this part, and
references to "feepayer" shall include a person required to pay the
surcharge imposed by this part, which includes the seller, who shall
be required to register with the board. The audit, refund, and appeal
procedures of the Fee Collection Procedures Law (Part 30 (commencing
with Section 55601)) shall apply to the collection and remittance of
the prepaid MTS surcharge.
(b) (1) The board may prescribe, adopt, and enforce regulations
relating to the administration and enforcement of this part,
including, but not limited to, collections, reporting, refunds, and
appeals.
(2) The board may prescribe, adopt, and enforce any emergency
regulations as necessary to implement this part. Any emergency
regulation prescribed, adopted, or enforced pursuant to this section
shall be adopted in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code, and, for purposes of that chapter, including Section 11349.6 of
the Government Code, the adoption of the regulation is an emergency
and shall be considered by the Office of Administrative Law as
necessary for the immediate preservation of the public peace, health
and safety, and general welfare.
(c) The board shall establish procedures to be utilized by a
seller to document that a sale is not a retail transaction.
(d) The board shall establish procedures for sharing of
information, other than information protected under Section 19542,
related to the collection of the prepaid MTS surcharge upon the
request of the Public Utilities Commission or the California
Technology Agency.
42021. (a) The prepaid MTS surcharge, minus the amount retained
by the seller pursuant to subdivision (e) of Section 42010, is due
and payable to the board quarterly on or before the last day of the
month next succeeding each quarterly period.
(b) On or before the last day of the month following each
quarterly period of three months, a return for the preceding
quarterly period shall be filed using electronic media with the
board.
(c) Returns shall be authenticated in a form or pursuant to
methods as may be prescribed by the board.
42022. Every
seller shall register with the board. Every application for
registration shall be made upon a form prescribed by the board and
shall set forth the name under which the applicant transacts or
intends to transact business, the location of its place or places of
business, and such other information as the board may require. An
application for an registration shall be authenticated in a form or
pursuant to methods as may be prescribed by the board.
42023. (a) The Prepaid Mobile Telephony Services Surcharge Fund
is hereby created in the State Treasury. The Prepaid MTS 911 Account
and the Prepaid MTS PUC Account are hereby created in the fund. The
Prepaid Mobile Telephony Services Surcharge Fund shall consist of all
surcharges, interest, penalties, and other amounts collected and
paid to the board pursuant to this part, less a deduction in an
amount not to exceed 2 percent of the collected amounts to refund and
reimburse the board for expenses incurred in the administration and
collection of the prepaid MTS surcharge.
(b) All moneys in the Prepaid Mobile Telephony Services Surcharge
Fund attributable to the prepaid MTS surcharge shall be deposited as
follows:
(1) That portion of the prepaid MTS surcharge that is for the
emergency telephone users surcharge shall be deposited into the
Prepaid MTS 911 Account.
(2) That portion of the prepaid MTS surcharge that is for the
Public Utilities Commission surcharges shall be deposited into the
Prepaid MTS PUC Account.
(c) Moneys in the Prepaid MTS 911 Account and the Prepaid MTS PUC
Account may be appropriated by the Legislature only for the purposes
for which the moneys were collected. All moneys collected pursuant to
this part shall be allocated only to the entities specified in this
section and shall not be used for any other purpose, including, but
not limited to, loans, transfers, or uses for any other purpose,
funds, or account.
42024. (a) This part shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is chaptered before January 1, 2017, deletes or extends
that date.
(b) The Legislature finds and declares that it is the intent of
the Legislature to develop and implement a reasonable and equitable
means to collect local utility user taxes and local communications
related charges on prepaid mobile telephony services in addition to
the state charges collected pursuant to this part and that if the
Legislature is unable to develop and implement a reasonable and
equitable means to collect local charges before January 1, 2017, that
collection of the state charges pursuant to this part will
terminate.
SEC. 11. (a) The amendments to Section 41030 of
the Revenue and Taxation Code made by Section 8 of this act are not
intended to supersede the amendments made to that code section by
Section 310 of the Governor's Reorganization Plan No. 2 of 2012,
which took effect on July 3, 2012, and will become fully operative on
July 1, 2013.
(b) The addition of Section 41030.1 of the Revenue and Taxation
Code made by Section 9 of this act is not intended to supersede the
amendments made to Section 41030 of the Revenue and Taxation Code by
Section 310 of the Governor's Reorganization Plan No. 2 of 2012,
which took effect on July 3, 2012, and will become fully operative on
July 1, 2013.
SEC. 3. SEC. 12. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.
SEC. 4. SEC. 13. This act is an
urgency statute necessary for the immediate preservation of the
public peace, health, or safety within the meaning of Article IV of
the Constitution and shall go into immediate effect. The facts
constituting the necessity are:
In order to provide a standardized collection mechanism as soon as
possible by which state and local charges can be
collected from end-users of prepaid mobile telephony services,
thereby permitting needed financial support for programs necessary to
serve the public or telecommunications users, it is necessary that
this act take effect immediately.
