Bill Text: FL S1060 | 2012 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Communications Services Tax
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2012-03-09 - Laid on Table, refer to CS/HB 809 -SJ 1216 [S1060 Detail]
Download: Florida-2012-S1060-Introduced.html
Bill Title: Communications Services Tax
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2012-03-09 - Laid on Table, refer to CS/HB 809 -SJ 1216 [S1060 Detail]
Download: Florida-2012-S1060-Introduced.html
Florida Senate - 2012 SB 1060 By Senator Bogdanoff 25-00495B-12 20121060__ 1 A bill to be entitled 2 An act relating to communications services taxes; 3 amending s. 202.105, F.S.; revising legislative 4 intent; amending s. 202.11, F.S.; modifying 5 definitions; removing the definitions of the terms 6 “cable service” and “enhanced zip code”; adding 7 definitions for the terms “digital good,” “digital 8 service,” “Internet access service,” and “video 9 service”; amending ss. 202.125, 202.16, 202.20, and 10 202.24, F.S.; conforming provisions to changes in 11 terminology; amending s. 202.195, F.S.; clarifying 12 provisions exempting from the public records law 13 certain proprietary confidential business information 14 held by a local governmental entity for the purpose of 15 assessing the local communications services tax; 16 amending s. 202.22, F.S.; providing an exception to 17 the provision holding a dealer of communications 18 services harmless from liability when the dealer fails 19 to correct a customer’s local taxing jurisdiction 20 following notice by the Department of Revenue; 21 eliminating provisions requiring that the department 22 provide a database for determining the local taxing 23 jurisdiction in which a service address is located; 24 amending s. 202.23, F.S.; removing a provision 25 relating to assigning a purchaser to a local taxing 26 jurisdiction, to conform to changes made by the act; 27 amending s. 202.231, F.S.; requiring the Department of 28 Revenue to aggregate monthly and make available to the 29 public on a jurisdiction-by-jurisdiction basis certain 30 sales and net tax information; amending s. 202.26, 31 F.S.; conforming a cross-reference; eliminating a 32 requirement that the department adopt a rule governing 33 certain databases; amending s. 202.28, F.S.; deleting 34 provisions imposing a penalty against a dealer of 35 communications services which incorrectly assigns a 36 service address, to conform to changes made by the 37 act; amending s. 212.05, F.S.; revising the definition 38 of the term “prepaid calling arrangement”; amending 39 ss. 203.01, 610.118, and 624.105, F.S.; conforming 40 cross-references; providing an effective date. 41 42 Be It Enacted by the Legislature of the State of Florida: 43 44 Section 1. Subsection (1) of section 202.105, Florida 45 Statutes, is amended to read: 46 202.105 Legislative findings and intent.— 47 (1) It is declared to be a specific legislative finding 48 that the creation of this chapter fulfills important state 49 interests by reforming the tax laws to provide a fair, 50 efficient, and uniform method for taxing communications services 51 sold in this state. This chapter is essential to the continued 52 economic vitality of this increasingly important industry 53 because it restructures state and local taxes and fees to 54 account for the impact of federal legislation, industry 55 deregulation, and the multitude ofconvergence of service56offerings that is now taking place amongproviders offering 57 functionally equivalent communications services in today’s 58 marketplace. This chapter promotes the increased competition 59 that accompanies deregulation by embracing a competitively 60 neutral tax policy that will free consumers to choose a provider 61 based on tax-neutral considerations. This chapter further spurs 62 new competition by simplifying an extremely complicated state 63 and local tax and fee system. Simplification will lower the cost 64 of collecting taxes and fees, increase service availability, and 65 place downward pressure on price. Newfound administrative 66 efficiency is demonstrated by a reduction in the number of 67 returns that a provider must file each month. By restructuring 68 separate taxes and fees into a revenue-neutral communications 69 services tax centrally administered by the department, this 70 chapter will ensure that the growth of the industry is 71 unimpaired by excessive governmental regulation. The tax imposed 72 pursuant to this chapter is a replacement for taxes and fees 73 previously imposed and is not a new tax. The taxes imposed and 74 administered pursuant to this chapter are of general application 75 and are imposed in a uniform, consistent, and nondiscriminatory 76 manner. 77 Section 2. Section 202.11, Florida Statutes, is amended to 78 read: 79 202.11 Definitions.—As used in this chapter: 80(1) “Cable service” means the transmission of video, audio,81or other programming service to purchasers, and the purchaser82interaction, if any, required for the selection or use of any83such programming service, regardless of whether the programming84is transmitted over facilities owned or operated by the cable85service provider or over facilities owned or operated by one or86more other dealers of communications services. The term includes87point-to-point and point-to-multipoint distribution services by88which programming is transmitted or broadcast by microwave or89other equipment directly to the purchaser’s premises, but does90not include direct-to-home satellite service. The term includes91basic, extended, premium, pay-per-view, digital, and music92services.93 (1)(2)“Communications services” means the transmission, 94 conveyance, or routing of voice, data, audio, video, or any 95 other information or signals, including videocableservices, to 96 a point, or between or among points, by or through any 97 electronic, radio, satellite, cable, optical, microwave, or 98 other medium or method now in existence or hereafter devised, 99 regardless of the protocol used for such transmission or 100 conveyance. The term includes such transmission, conveyance, or 101 routing in which computer processing applications are used to 102 act on the form, code, or protocol of the content for purposes 103 of transmission, conveyance, or routing without regard to 104 whether such service is referred to as voice-over-Internet 105 protocol services or is classified by the Federal Communications 106 Commission as enhanced or value-added. The term does not 107 include: 108 (a) Information services. 109 (b) Installation or maintenance of wiring or equipment on a 110 customer’s premises. 111 (c) The sale or rental of tangible personal property. 112 (d) The sale of advertising, including, but not limited to, 113 directory advertising. 114 (e) Bad check charges. 115 (f) Late payment charges. 116 (g) Billing and collection services. 117 (h) Internet access service, electronic mail service, 118 electronic bulletin board service, or similar online computer 119 services. 120 (i) Digital goods. 121 (j) Digital services. 122 (2)(3)“Dealer” means a person registered with the 123 department as a provider of communications services in this 124 state. 125 (3)(4)“Department” means the Department of Revenue. 126 (4) “Digital good” means any downloaded good or product 127 that is delivered or transferred by means other than tangible 128 storage media, including downloaded games, software, music, or 129 other digital content. The term does not include video service. 130 (5) “Digital service” means any service, other than video 131 service, which is provided electronically, including remotely 132 provided access to or use of software or another digital good, 133 and also includes the following services, if they are provided 134 remotely: monitoring, security, distance learning, energy 135 management, medical diagnostic, mechanical diagnostic, and 136 vehicle tracking services. If a digital service is bundled for 137 sale with the transmission, conveyance, or routing of any 138 information or signals, the bundled service is a digital service 139 unless the tax imposed under this chapter and chapter 203 has 140 not been paid with respect to such transmission, conveyance, or 141 routing. 142 (6)(5)“Direct-to-home satellite service” has the meaning 143 ascribed in the Communications Act of 1934, 47 U.S.C. s. 303(v). 144 (7)(6)“Information service” means the offering of a 145 capability for generating, acquiring, storing, transforming, 146 processing, retrieving, using, or making available information 147 via communications services, including, but not limited to, 148 electronic publishing, web-hosting service, and end-user 900 149 number service. The term does not includeanyvideo, audio, or150other programming service that uses point-to-multipoint151distribution by which programming is delivered, transmitted, or152broadcast by any means, including any interaction that may be153necessary for selecting and using the service, regardless of154whether the programming is delivered, transmitted, or broadcast155over facilities owned or operated by the seller or another, or156whether denominated as cable service or as basic, extended,157premium, pay-per-view, digital, music, or two-way cableservice. 158 (8) “Internet access service” has the same meaning as 159 ascribed to the term “Internet access” by s. 1105(5) of the 160 Internet Tax Freedom Act, 47 U.S.C. s. 151 note, as amended by 161 Pub. L. No. 110-108. 162 (9)(7)“Mobile communications service” meanscommercial163 mobileradioservice, as defined in 47 C.F.R. s. 20.3 as in 164 effect on June 1, 1999. The term does not include air-ground 165 radiotelephone service as defined in 47 C.F.R. s. 22.99 as in 166 effect on June 1, 1999. 167 (10)(8)“Person” has the meaning ascribed in s. 212.02. 168 (11)(9)“Prepaid calling arrangement” means the separately 169 stated retail saleby advance paymentof communications services 170 that must be paid for in advance; that may be used to place or 171 receiveconsist exclusively oftelephone callsoriginated; that 172 are enabled by using an access number, authorization code, or 173 other means that may be manually, electronically, or otherwise 174 entered;,and that are sold in predetermined units or dollars of 175 which the number declines on a predetermined basiswith usein a 176 known amount. 177 (12)(10)“Purchaser” means the person paying for or 178 obligated to pay for communications services. 179 (13)(11)“Retail sale” means the sale of communications 180 services for any purpose other than for resale or for use as a 181 component part of or for integration into communications 182 services to be resold in the ordinary course of business. 183 However, any sale for resale must comply with s. 202.16(2) and 184 the rules adopted thereunder. 185 (14)(12)“Sale” means the provision of communications 186 services for a consideration. 187 (15)(13)“Sales price” means the total amount charged in 188 money or other consideration by a dealer for the sale of the 189 right or privilege of using communications services in this 190 state, including any property or other service, not described in 191 paragraph (a), which isservicesthatarepart of the sale and 192 for which the charge is not separately itemized on a customer’s 193 bill or separately allocated under subparagraph (b)8. The sales 194 price of communications services mayshallnot be reduced by any 195 separately identified components of the charge whichthat196 constitute expenses of the dealer, including, but not limited 197 to, sales taxes on goods or services purchased by the dealer, 198 property taxes, taxes measured by net income, and universal 199 service fund fees. 200 (a) The sales price of communications services includes 201shall include, whether or not separately stated, charges for any 202 of the following: 203 1. The connection, movement, change, or termination of 204 communications services. 205 2. The detailed billing of communications services. 206 3. The sale of directory listings in connection with a 207 communications service. 208 4. Central office and custom calling features. 209 5. Voice mail and other messaging service. 210 6. Directory assistance. 211 7. The service of sending or receiving a document commonly 212 referred to as a facsimile or “fax,” except when performed 213 during the course of providing professional or advertising 214 services. 215 (b) The sales price of communications services does not 216 include charges for any of the following: 217 1. AnAnyexcise tax, sales tax, or similar tax levied by 218 the United States or any state or local government on the 219 purchase, sale, use, or consumption of any communications 220 service, including, but not limited to, aanytax imposed under 221 this chapter or chapter 203 which is permitted or required to be 222 added to the sales price of such service, if the tax is stated 223 separately. 224 2. AAnyfee or assessment levied by the United States or 225 any state or local government, including, but not limited to, 226 regulatory fees and emergency telephone surcharges, which must 227is required tobe added to the price of thesuchservice if the 228 fee or assessment is separately stated. 229 3. Communications services paid for by inserting coins into 230 coin-operated communications devices available to the public. 231 4. The sale or recharge of a prepaid calling arrangement. 232 5. The provision of air-to-ground communications services, 233 defined as a radio service provided to a purchaserpurchasers234 while on board an aircraft. 235 6. A dealer’s internal use of communications services in 236 connection with its business of providing communications 237 services. 238 7. Charges for property or other services that are not part 239 of the sale of communications services, if such charges are 240 stated separately from the charges for communications services. 241 8.To the extent required by federal law,Charges for goods 242 and services that are exempt from tax under this chapter, 243 including Internet access services but excluding any item 244 described in paragraph (a), thatwhichare not separately 245 itemized on a customer’s bill, but thatwhichcan be reasonably 246 identified from the selling dealer’s books and records kept in 247 the regular course of business. The dealer may support the 248 allocation of charges with books and records kept in the regular 249 course of business covering the dealer’s entire service area, 250 including territories outside this state. 251 (16)(14)“Service address” means: 252 (a) Except as otherwise provided in this section: 253 1. The location of the communications equipment from which 254 communications services originate or at which communications 255 services are received by the customer; 256 2. In the case of a communications service paid through a 257 credit or payment mechanism that does not relate to a service 258 address, such as a bank, travel, debit, or credit card, and in 259 the case of third-number and calling-card calls, the term 260 “service address” means the address of the central office, as 261 determined by the area code and the first three digits of the 262 seven-digit originating telephone number; or 263 3. If the location of the equipment described in 264 subparagraph 1. is not known and subparagraph 2. is 265 inapplicable, the term “service address” means the location of 266 the customer’s primary use of the communications service. For 267 purposes of this subparagraph, the location of the customer’s 268 primary use of a communications service is the residential 269 street address or the business street address of the customer. 270 (b) In the case of videocableservices and direct-to-home 271 satellite services, the location where the customer receives the 272 services in this state. 273 (c) In the case of mobile communications services, the 274 customer’s place of primary use. 275 (17)(15)“Unbundled network element” means a network 276 element, as defined in 47 U.S.C. s. 153(29), to which access is 277 provided on an unbundled basis pursuant to 47 U.S.C. s. 278 251(c)(3). 279 (18)(16)“Private communications service” means a 280 communications service that entitles the subscriber or user to 281 exclusive or priority use of a communications channel or group 282 of channels between or among channel termination points, 283 regardless of the manner in which such channel or channels are 284 connected, and includes switching capacity, extension lines, 285 stations, and any other associated services thatwhichare 286 provided in connection with the use of such channel or channels. 287 (19)(17)(a) “Customer” means: 288 1. The person or entity that contracts with the home 289 service provider for mobile communications services; or 290 2. If the end user of mobile communications services is not 291 the contracting party, the end user of the mobile communications 292 service. This subparagraph only applies for the purpose of 293 determining the place of primary use. 294 (b) “Customer” does not include: 295 1. A reseller of mobile communications services; or 296 2. A serving carrier under an agreement to serve the 297 customer outside the home service provider’s licensed service 298 area. 299(18)“Enhanced zip code” means a United States postal zip300code of 9 or more digits.301 (20)(19)“Home service provider” means the facilities-based 302 carrier or reseller with which the customer contracts for the 303 provision of mobile communications services. 304 (21)(20)“Licensed service area” means the geographic area 305 in which the home service provider is authorized by law or 306 contract to provide mobile communications service to the 307 customer. 308 (22)(21)“Place of primary use” means the street address 309 representative of where the customer’s use of the mobile 310 communications service primarily occurs, which must be: 311 (a) The residential street address or the primary business 312 street address of the customer; and 313 (b) Within the licensed service area of the home service 314 provider. 315 (23)(22)(a) “Reseller” means a provider who purchases 316 communications services from another communications service 317 provider and then resells, uses as a component part of, or 318 integrates the purchased services into a mobile communications 319 service. 320 (b) The term“Reseller”does not include a serving carrier 321 with which a home service provider arranges for the services to 322 its customers outside the home service provider’s licensed 323 service area. 324 (24)(23)“Serving carrier” means a facilities-based carrier 325 providing mobile communications service to a customer outside a 326 home service provider’s or reseller’s licensed service area. 327 (25)(24)“Video service” means the transmission of video, 328 audio, or other programming service to a purchaser, and the 329 purchaser interaction, if any, required for the selection or use 330 of a programming service, regardless of whether the programming 331 is transmitted over facilities owned or operated by the video 332 service provider or over facilities owned or operated by another 333 dealer of communications services. The term includes point-to 334 point and point-to-multipoint distribution services through 335 which programming is transmitted or broadcast by microwave or 336 other equipment directly to the purchaser’s premises, but does 337 not include direct-to-home satellite service. The term includes 338 basic, extended, premium, pay-per-view, digital video, two-way 339 cable, and music serviceshas the same meaning as that provided340in s.610.103. 341 Section 3. Subsection (1) of section 202.125, Florida 342 Statutes, is amended to read: 343 202.125 Sales of communications services; specified 344 exemptions.— 345 (1) The separately stated sales price of communications 346 services sold to residential households is exempt from the tax 347 imposed by s. 202.12 and s. 203.01(1)(b)3. This exemption does 348 not apply to any residence that constitutes all or part of a 349 transient public lodging establishment as defined in chapter 350 509, any mobile communications service, any videocableservice, 351 or any direct-to-home satellite service. 352 Section 4. Paragraph (a) of subsection (2) of section 353 202.16, Florida Statutes, is amended to read: 354 202.16 Payment.—The taxes imposed or administered under 355 this chapter and chapter 203 shall be collected from all dealers 356 of taxable communications services on the sale at retail in this 357 state of communications services taxable under this chapter and 358 chapter 203. The full amount of the taxes on a credit sale, 359 installment sale, or sale made on any kind of deferred payment 360 plan is due at the moment of the transaction in the same manner 361 as a cash sale. 362 (2)(a) A sale of communications services that are used as a 363 component part of or integrated into a communications service or 364 prepaid calling arrangement for resale, including, but not 365 limited to, carrier-access charges, interconnection charges paid 366 by providers of mobile communication services or other 367 communication services, charges paid by a videocableservice 368 providerprovidersfor the purchase of video programming or the 369 transmission of video or other programming by another dealer of 370 communications services, charges for the sale of unbundled 371 network elements, and any other intercompany charges for the use 372 of facilities for providing communications services for resale, 373 must be made in compliance with the rules of the department. A 374Anyperson who makes a sale for resale which is not in 375 compliance with these rules is liable for any tax, penalty, and 376 interest due for failing to comply, to be calculated pursuant to 377 s. 202.28(2)(a). 378 Section 5. Subsections (1) and (3) of section 202.195, 379 Florida Statutes, are amended to read: 380 202.195 Proprietary confidential business information; 381 public records exemption.— 382 (1) Proprietary confidential business information obtained 383 from a telecommunications company or from a franchised or 384 certificated video service providercablecompanyfor the 385 purposes ofimposing fees for occupying the public rights-of386way,assessing the local communications services tax pursuant to 387 s. 202.19, or occupying or regulating the public rights-of-way, 388 held by a local governmental entity, is confidential and exempt 389 from s. 119.07(1) and s. 24(a), Art. I of the State 390 Constitution. Such proprietary confidential business information 391 held by a local governmental entity may be used only for the 392 purposes ofimposing such fees,assessing such tax,or 393 regulating such rights-of-way, and may not be used for any other 394 purposes, including, but not limited to, commercial or 395 competitive purposes. 396 (3)Nothing inThis exemption does not expandexpandsthe 397 information or documentation that a local governmental entity 398 may properly request under applicable law pursuant tothe399imposition of fees foroccupying the rights-of-way, the local 400 communication services tax, or the regulation of its public 401 rights-of-way. 402 Section 6. Paragraph (b) of subsection (2) of section 403 202.20, Florida Statutes, is amended to read: 404 202.20 Local communications services tax conversion rates.— 405 (2) 406 (b) Except as otherwise provided in this subsection, the 407 term “replaced revenue sources,” as used in this section, means 408 the following taxes, charges, fees, or other impositions to the 409 extent that the respective local taxing jurisdictions were 410 authorized to impose them prior to July 1, 2000. 411 1. With respect to municipalities and charter counties and 412 the taxes authorized by s. 202.19(1): 413 a. The public service tax on telecommunications authorized 414 by former s. 166.231(9). 415 b. Franchise fees on videocableservice providers as 416 authorized by 47 U.S.C. s. 542. 417 c. The public service tax on prepaid calling arrangements. 418 d. Franchise fees on dealers of communications services 419 which use the public roads or rights-of-way, up to the limit set 420 forth in s. 337.401. For purposes of calculating rates under 421 this section, it is the legislative intent that charter counties 422 be treated as having had the same authority as municipalities to 423 impose franchise fees on recurring local telecommunication 424 service revenues beforeprior toJuly 1, 2000. However, the 425 Legislature recognizes that the authority of charter counties to 426 impose such fees is in dispute, and the treatment provided in 427 this section is not an expression of legislative intent that 428 charter counties actually do or do not possess such authority. 429 e. Actual permit fees relating to placing or maintaining 430 facilities in or on public roads or rights-of-way, collected 431 from providers of long-distance, cable, and mobile 432 communications services for the fiscal year ending September 30, 433 1999; however, if a municipality or charter county elects the 434 option to charge permit fees pursuant to s. 337.401(3)(c)1.a., 435 such fees mayshallnot be included as a replaced revenue 436 source. 437 2. With respect to all other counties and the taxes 438 authorized in s. 202.19(1), franchise fees on videocable439 service providers as authorized by 47 U.S.C. s. 542. 440 Section 7. Section 202.22, Florida Statutes, is amended to 441 read: 442 202.22 Determination of local tax situs.— 443(1)A dealer of communications services who is obligated to 444 collect and remit a local communications services tax imposed 445 under s. 202.19 shall be held harmless from any liability, 446 including tax, interest, and penalties, which would otherwise be 447 due solely as a result of an assignment of a service address to 448 an incorrect local taxing jurisdiction, unless the liability 449 arises from tax that is due with respect to taxable services 450 that are included on bills to a customer which are dated on or 451 after the first day of the fourth month after the dealer is 452 notified by the department that the customer has been 453 incorrectly assigned.if the dealer of communications services454exercises due diligence in applying one or more of the following455methods for determining the local taxing jurisdiction in which a456service address is located:457(a) Employing an electronic database provided by the458department under subsection (2).459(b) Employing a database developed by the dealer or460supplied by a vendor which has been certified by the department461under subsection (3).462(c)1. Employing enhanced zip codes to assign each street463address, address range, post office box, or post office box464range in the dealer’s service area to a specific local taxing465jurisdiction.4662. If an enhanced zip code overlaps boundaries of467municipalities or counties, or if an enhanced zip code cannot be468assigned to the service address because the service address is469in a rural area or a location without postal delivery, the470dealer of communications services or its database vendor shall471assign the affected service addresses to one specific local472taxing jurisdiction within such zip code based on a reasonable473methodology. A methodology satisfies this subparagraph if the474information used to assign service addresses is obtained by the475dealer or its database vendor from:476a. A database provided by the department;477b. A database certified by the department under subsection478(3);479c. Responsible representatives of the relevant local taxing480jurisdictions; or481d. The United States Census Bureau or the United States482Postal Service.483(d) Employing a database of street addresses or other484assignments that does not meet the requirements of paragraphs485(a)-(c), but meets the criteria set forth in paragraph (3)(a) at486the time of audit by the department.487(2)(a) The department shall, subject to legislative488appropriation, create as soon as practical and feasible, and489thereafter maintain, an electronic database that gives due and490proper regard to any format that is approved by the American491National Standards Institute’s Accredited Standards Committee492X12 and that designates for each street address, address range,493post office box, or post office box range in the state,494including any multiple postal street addresses applicable to one495street location, the local taxing jurisdiction in which the496street address, address range, post office box, or post office497box range is located and the appropriate code for each such498local taxing jurisdiction, identified by one nationwide standard499numeric code. The nationwide standard numeric code must contain500the same number of numeric digits, and each digit, or501combination of digits, must refer to the same level of taxing502jurisdiction throughout the United States using a format similar503to FIPS 55-3 or other appropriate standard approved by the504Federation of Tax Administrators and the Multistate Tax505Commission. Each address or address range or post office box or506post office box range must be provided in standard postal507format, including the street number, street number range, street508name, post office box number, post office box range, and zip509code. The department shall provide notice of the availability of510the database, and any subsequent revision thereof, by511publication in the Florida Administrative Weekly.512(b)1. Each local taxing jurisdiction shall furnish to the513department all information needed to create and update the514electronic database, including changes in service addresses,515annexations, incorporations, reorganizations, and any other516changes in jurisdictional boundaries. The information furnished517to the department must specify an effective date, which must be518the next ensuing January 1 or July 1, and such information must519be furnished to the department at least 120 days prior to the520effective date. However, the requirement that counties submit521information pursuant to this paragraph shall be subject to522appropriation.5232. The department shall update the electronic database in524accordance with the information furnished by local taxing525jurisdictions under subparagraph 1. Each update must specify the526effective date as the next ensuing January 1 or July 1 and must527be posted by the department on a website not less than 90 days528prior to the effective date. A substantially affected person may529provide notice to the database administrator of an objection to530information contained in the electronic database. If an531objection is supported by competent evidence, the department532shall forward the evidence to the affected local taxing533jurisdictions and update the electronic database in accordance534with the determination furnished by local taxing jurisdictions535to the department. The department shall also furnish the update536on magnetic or electronic media to any dealer of communications537services or vendor who requests the update on such media.538However, the department may collect a fee from the dealer of539communications services which does not exceed the actual cost of540furnishing the update on magnetic or electronic media.541Information contained in the electronic database is conclusive542for purposes of this chapter. The electronic database is not an543order, a rule, or a policy of general applicability.5443. Each update must identify the additions, deletions, and545other changes to the preceding version of the database.546(3) For purposes of this section, a database must be547certified by the department pursuant to rules that implement the548following criteria and procedures:549(a) The database must assign street addresses, address550ranges, post office boxes, or post office box ranges to the551proper jurisdiction with an overall accuracy rate of 95 percent552at a 95 percent level of confidence, as determined through a553statistically reliable sample. The accuracy must be measured554based on the entire geographic area within the state covered by555such database.556(b) Upon receipt of an application for certification or557recertification of a database, the provisions of s.120.60shall558apply, except that the department shall examine the application559and, within 90 days after receipt, notify the applicant of any560apparent errors or omissions and request any additional561information determined necessary. The applicant shall designate562an individual responsible for providing access to all records,563facilities, and processes the department determines are564reasonably necessary to review, inspect, or test to make a565determination regarding the application. Such access must be566provided within 10 working days after notification.567(c) The application must be in the form prescribed by rule568and must include the applicant’s name, federal employer569identification number, mailing address, business address, and570any other information required by the department. The571application may request that the applicant identify the572applicant’s proposal for testing the database.573(d) Each application for certification must be approved or574denied upon written notice within 180 days after receipt of a575completed application. The notice must specify the grounds for576denial, inform the applicant of any remedy that is available,577and indicate the procedure that must be followed. Filing of a578petition under chapter 120 does not preclude the department from579certifying the database upon a demonstration that the580deficiencies have been corrected.581(e) Certification or recertification of a database under582this subsection is effective from the date of the department’s583notice approving the application until the expiration of 3 or 4584years following such date, as set forth in the notice, except as585provided in paragraph (f).586(f) An application for recertification of a database must587be received by the department not more than 3 years after the588date of any prior certification. The application and procedures589relating thereto shall be governed by this subsection, except as590otherwise provided in this paragraph. When an application for591recertification has been timely submitted, the existing592certification shall not expire but shall remain effective until593the application has received final action by the department, or594if the application is denied, until the denial is no longer595subject to administrative or judicial review or such later date596as may be fixed by order of the reviewing court.597(g) Notwithstanding any provision of law to the contrary,598if a dealer submits an application for certification on or599before the later of October 1, 2001, or the date that is 30 days600after the date on which the applicable department rule becomes601effective, the 180-day time limit set forth in paragraph (d)602does not apply. During the time the application is under603consideration by the department or, if the application is604denied, until the denial is no longer subject to administrative605or judicial review or until a later date fixed by order of the606reviewing court:6071. For purposes of computing the amount of the deduction to608which such dealer is entitled under s.202.28, the dealer shall609be deemed to have used a certified database pursuant to610paragraph (1)(b).6112. In the event that such application is approved, such612approval shall be deemed to have been effective on the date of613the application or October 1, 2001, whichever is later.614(4)(a) As used in this section, “due diligence” means the615care and attention that is expected from, and ordinarily616exercised by, a reasonable and prudent person under the617circumstances.618(b) Notwithstanding any law to the contrary, a dealer of619communications services is exercising due diligence in applying620one or more of the methods set forth in subsection (1) if the621dealer:6221. Expends reasonable resources to accurately and reliably623implement such method. However, the employment of enhanced zip624codes pursuant to paragraph (1)(c) satisfies the requirements of625this subparagraph; and6262. Maintains adequate internal controls in assigning street627addresses, address ranges, post offices boxes, and post office628box ranges to taxing jurisdictions. Internal controls are629adequate if the dealer of communications services:630a. Maintains and follows procedures to obtain and implement631periodic and consistent updates to the database at least once632every 6 months; and633b. Corrects errors in the assignments of service addresses634to local taxing jurisdictions within 120 days after the dealer635discovers such errors.636(5) If a dealer of communications services does not use one637or more of the methods specified in subsection (1) for638determining the local taxing jurisdiction in which a service639address is located, the dealer of communications services may be640held liable to the department for any tax, including interest641and penalties, which is due as a result of assigning the service642address to an incorrect local taxing jurisdiction. However, the643dealer of communications services is not liable for any tax,644interest, or penalty to the extent that such amount was645collected and remitted by the dealer of communications services646with respect to a tax imposed by another local taxing647jurisdiction. Upon determining that an amount was collected and648remitted by a dealer of communications services with respect to649a tax imposed by another local taxing jurisdiction, the650department shall adjust the respective amounts of the proceeds651paid to each such taxing jurisdiction under s.202.18in the652month immediately following such determination.653(6)(a) Pursuant to rules adopted by the department, each654dealer of communications services must notify the department of655the methods it intends to employ for determining the local656taxing jurisdiction in which service addresses are located.657(b) Notwithstanding s.202.28, if a dealer of658communications services employs a method of assigning service659addresses other than as set forth in paragraph (1)(a), paragraph660(1)(b), or paragraph (1)(c), the deduction allowed to the dealer661of communications services as compensation under s.202.28shall662be0.25percent of that portion of the tax due and accounted for663and remitted to the department which is attributable to such664method of assigning service addresses other than as set forth in665paragraph (1)(a), paragraph (1)(b), or paragraph (1)(c).666(7) As used in this section, “enhanced zip code” means a667United States postal zip code of 9 or more digits.668(8) All local communications services taxes collected by a669dealer are subject to the provisions of s.213.756. The hold670harmless protection provided by subsection (1) does not entitle671a dealer to retain or take credits for taxes collected from any672customers that are assigned to an incorrect local taxing673jurisdiction in excess of the taxes due to the correct local674taxing jurisdiction for that customer. Dealers are entitled to675refunds of or credits for such excess collections only upon676making refunds or providing credits to the customer.677 Section 8. Subsections (2) and (5) of section 202.23, 678 Florida Statutes, are amended to read: 679 202.23 Procedure on purchaser’s request for refund or 680 credit of communications services taxes.— 681 (2) This section provides the sole and exclusive procedure 682 and remedy for a purchaser who claims that a dealer has 683 collected communications services taxes imposed or administered 684 under this chapter which were not due. An action that arises as 685 a result of the claimed collection of taxes that were not due 686 may not be commenced or maintained by or on behalf of a 687 purchaser against a dealer, a municipality, a county, or the 688 state unless the purchaser pleads and proves that the purchaser 689 has exhausted the procedures in subsection (1) and that the 690 defendant has failed to comply with subsection (1). However, a 691 dealer who does not make a determinationno determination by a692dealerunder paragraph (1)(c) shall be deemeda failureto 693 comply with subsection (1) if the dealer has complied with the 694 obligations imposed on the dealer by paragraphs (1)(d), (e), and 695 (f). In any such action, it is a complete defense ifthatthe 696 dealer, a municipality, a county, or the state has refunded the 697 taxes claimed or credited the purchaser’s account.In such an698action against a dealer, it is also a complete defense that, in699collecting the tax, the dealer used one or more of the methods700set forth in s.202.22for assigning the purchaser to a local701taxing jurisdiction.AnSuchaction is barred unless it is 702 commenced within 180 days following the date of the dealer’s 703 written response under paragraph (1)(f), or within 1 year 704 following submission of the purchaser’s request to the dealer if 705 the dealer failed to issue a timely written response. The relief 706 available to a purchaser as a result of collection of 707 communications services taxes that were not due is limited to a 708 refund of or credit for such taxes. 709 (5) A dealer who has collected and remitted amounts that 710 were not due, as determined by the department under paragraph 711 (1)(e), who has issued a refund or credit to the purchaser for 712 such amounts, and who takes a credit or receives a refund from 713 the department for such amounts as provided in subsection (3) is 714 not subject to assessment for any of the tax that was refunded 715 or credited or for any interest or penalty with respect to the 716 tax. In addition, a dealer who modifies his or her tax 717 compliance practices to conform to a department determination 718 under paragraph (1)(e) is not subject to assessment as a result 719 of such modification, absent a subsequent change in lawor720update to a database pursuant to s.202.22. 721 Section 9. Subsection (3) is added to section 202.231, 722 Florida Statutes, to read: 723 202.231 Provision of information to local taxing 724 jurisdictions.— 725 (3) The gross taxable sales and net tax information 726 contained in the monthly reports required by this section shall 727 be aggregated on a jurisdiction-by-jurisdiction basis, and the 728 aggregate jurisdiction-by-jurisdiction information shall be made 729 available by the department to the public through the 730 department’s website for each fiscal year this chapter has been 731 in effect. 732 Section 10. Paragraphs (a) and (c) of subsection (2) of 733 section 202.24, Florida Statutes, are amended to read: 734 202.24 Limitations on local taxes and fees imposed on 735 dealers of communications services.— 736 (2)(a) Except as provided in paragraph (c), each public 737 body is prohibited from: 738 1. Levying on or collecting from dealers or purchasers of 739 communications services any tax, charge, fee, or other 740 imposition on or with respect to the provision or purchase of 741 communications services. 742 2. Requiring any dealer of communications services to enter 743 into or extend the term of a franchise or other agreement that 744 requires the payment of a tax, charge, fee, or other imposition. 745 3. Adopting or enforcing any provision of any ordinance or 746 agreement to the extent that such provision obligates a dealer 747 of communications services to charge, collect, or pay to the 748 public body a tax, charge, fee, or other imposition. 749 750 Municipalities and counties may not negotiate those terms and 751 conditions related to franchise fees or the definition of gross 752 revenues or other definitions or methodologies related to the 753 payment or assessment of franchise fees on providers ofcable or754 video services. 755 (c) This subsection does not apply to: 756 1. Local communications services taxes levied under this 757 chapter. 758 2. Ad valorem taxes levied pursuant to chapter 200. 759 3. Business taxes levied under chapter 205. 760 4. “911” service charges levied under chapter 365. 761 5. Amounts charged for the rental or other use of property 762 owned by a public body which is not in the public rights-of-way 763 to a dealer of communications services for any purpose, 764 including, but not limited to, the placement or attachment of 765 equipment used in the provision of communications services. 766 6. Permit fees of general applicability which are not 767 related to placing or maintaining facilities in or on public 768 roads or rights-of-way. 769 7. Permit fees related to placing or maintaining facilities 770 in or on public roads or rights-of-way pursuant to s. 337.401. 771 8. Any in-kind requirements, institutional networks, or 772 contributions for, or in support of, the use or construction of 773 public, educational, or governmental access facilities allowed 774 under federal law and imposed on providers ofcable orvideo 775 service pursuant to any existing ordinance or an existing 776 franchise agreement granted by each municipality or county, 777 under which ordinance or franchise agreement service is provided 778 beforeprior toJuly 1, 2007, or as permitted under chapter 610. 779Nothing inThis subparagraph does notshallprohibitthe ability780ofproviders ofcable orvideo service from recovering theto781recover suchexpenses as allowed under federal law. 782 9. Special assessments and impact fees. 783 10. Pole attachment fees that are charged by a local 784 government for attachments to utility poles owned by the local 785 government. 786 11. Utility service fees or other similar user fees for 787 utility services. 788 12. Any other generally applicable tax, fee, charge, or 789 imposition authorized by general law on July 1, 2000, which is 790 not specifically prohibited by this subsection or included as a 791 replaced revenue source in s. 202.20. 792 Section 11. Paragraphs (f), (g), (h), (i), and (j) of 793 subsection (3) of section 202.26, Florida Statutes, are amended 794 to read: 795 202.26 Department powers.— 796 (3) To administer the tax imposed by this chapter, the 797 department may adopt rules relating to: 798 (f) The records and methods necessary for a dealer to 799 demonstrate the exercise of due diligence as defined by s. 800 202.22202.22(4)(b). 801(g) The creation of the database described in s.202.22(2)802and the certification and recertification of the databases as803described in s.202.22(3).804 (g)(h)The registration of dealers. 805 (h)(i)The review of applications for, and the issuance of, 806 direct-pay permits, and the returns required to be filed by 807 holders thereof. 808 (i)(j)The types of books and records kept in the regular 809 course of business which must be available during an audit of a 810 dealer’s books and records when the dealer has made an 811 allocation or attribution pursuant to the definition of sales 812 prices in s. 202.11(15)(b)8.202.11(13)(b)8.and examples of 813 methods for determining the reasonableness thereof. Books and 814 records kept in the regular course of business include, but are 815 not limited to, general ledgers, price lists, cost records, 816 customer billings, billing system reports, tariffs, and other 817 regulatory filings and rules of regulatory authorities. TheSuch818 records may be required to be made available to the department 819 in an electronic format when so kept by the dealer. The dealer 820 may support the allocation of charges with books and records 821 kept in the regular course of business covering the dealer’s 822 entire service area, including territories outside this state. 823 During an audit, the department may reasonably require 824 production of any additional books and records found necessary 825 to assist in its determination. 826 Section 12. Paragraph (e) of subsection (2) of section 827 202.28, Florida Statutes, is amended to read: 828 202.28 Credit for collecting tax; penalties.— 829 (2) 830(e) If a dealer of communications services does not use one831or more of the methods specified in s.202.22(1)for assigning832service addresses to local jurisdictions and assigns one or more833service addresses to an incorrect local jurisdiction in834collecting and remitting local communications services taxes835imposed under s.202.19, the dealer shall be subject to a836specific penalty of 10 percent of any tax collected but reported837to the incorrect jurisdiction as a result of incorrect838assignment, except that the penalty imposed under this paragraph839with respect to a single return may not exceed $10,000.840 Section 13. Paragraph (a) of subsection (1) of section 841 203.01, Florida Statutes, is amended to read: 842 203.01 Tax on gross receipts for utility and communications 843 services.— 844 (1)(a)1. A tax is imposed on gross receipts from utility 845 services that are delivered to a retail consumer in this state. 846 TheSuchtax shall be levied as provided in paragraphs (b)-(j). 847 2. A tax is levied on communications services as defined in 848 s. 202.11(1)202.11(2). TheSuchtax shall be applied to the 849 same services and transactions as are subject to taxation under 850 chapter 202, and to communications services that are subject to 851 the exemption provided in s. 202.125(1). TheSuchtax shall be 852 applied to the sales price of communications services when sold 853 at retail, as thesuchterms are defined in s. 202.11, shall be 854 due and payable at the same time as the taxes imposed pursuant 855 to chapter 202, and shall be administered and collected pursuant 856 to the provisions of chapter 202. 857 Section 14. Paragraph (e) of subsection (1) of section 858 212.05, Florida Statutes, is amended to read: 859 212.05 Sales, storage, use tax.—It is hereby declared to be 860 the legislative intent that every person is exercising a taxable 861 privilege who engages in the business of selling tangible 862 personal property at retail in this state, including the 863 business of making mail order sales, or who rents or furnishes 864 any of the things or services taxable under this chapter, or who 865 stores for use or consumption in this state any item or article 866 of tangible personal property as defined herein and who leases 867 or rents such property within the state. 868 (1) For the exercise of such privilege, a tax is levied on 869 each taxable transaction or incident, which tax is due and 870 payable as follows: 871 (e)1. At the rate of 6 percent on charges for: 872 a. Prepaid calling arrangements. The tax on charges for 873 prepaid calling arrangements shall be collected at the time of 874 sale and remitted by the selling dealer. 875 (I) “Prepaid calling arrangement” means the separately 876 stated retail saleby advance paymentof communications services 877 that must be paid for in advance; that may be used to place or 878 receiveconsist exclusivelyoftelephone calls; that are enabled 879originatedby using an access number, authorization code, or 880 other means that may be manually, electronically, or otherwise 881 entered; and that are sold in predetermined units or dollars 882 whose number declines on a predetermined basiswith usein a 883 known amount. 884 (II) If the sale or recharge of the prepaid calling 885 arrangement does not take place at the dealer’s place of 886 business, it shall be deemed to take place at the customer’s 887 shipping address or, if no item is shipped, at the customer’s 888 address or the location associated with the customer’s mobile 889 telephone number. 890 (III) The sale or recharge of a prepaid calling arrangement 891 shall be treated as a sale of tangible personal property for 892 purposes of this chapter, whether or not a tangible item 893 evidencing such arrangement is furnished to the purchaser, and 894 such sale within this state subjects the selling dealer to the 895 jurisdiction of this state for purposes of this subsection. 896 b. The installation of telecommunication and telegraphic 897 equipment. 898 c. Electrical power or energy, except that the tax rate for 899 charges for electrical power or energy is 7 percent. 900 2. The provisions of s. 212.17(3), regarding credit for tax 901 paid on charges subsequently found to be worthless, shall be 902 equally applicable to any tax paid under the provisions of this 903 section on charges for prepaid calling arrangements, 904 telecommunication or telegraph services, or electric power 905 subsequently found to be uncollectible. The word “charges” in 906 this paragraph does not include any excise or similar tax levied 907 by the Federal Government, any political subdivision of the 908 state, or any municipality upon the purchase, sale, or recharge 909 of prepaid calling arrangements or upon the purchase or sale of 910 telecommunication, television system program, or telegraph 911 service or electric power, which tax is collected by the seller 912 from the purchaser. 913 Section 15. Paragraph (a) of subsection (1) of section 914 610.118, Florida Statutes, is amended to read: 915 610.118 Impairment; court-ordered operations.— 916 (1) If an incumbent cable or video service provider is 917 required to operate under its existing franchise and is legally 918 prevented by a lawfully issued order of a court of competent 919 jurisdiction from exercising its right to terminate its existing 920 franchise pursuant to the terms of s. 610.105, any 921 certificateholder providing cable service or video service in 922 whole or in part within the service area that is the subject of 923 the incumbent cable or video service provider’s franchise shall, 924 for as long as the court order remains in effect, comply with 925 the following franchise terms and conditions as applicable to 926 the incumbent cable or video service provider in the service 927 area: 928 (a) The certificateholder shall pay to the municipality or 929 county: 930 1. Any prospective lump-sum or recurring per-subscriber 931 funding obligations to support public, educational, and 932 governmental access channels or other prospective franchise 933 required monetary grants related to public, educational, or 934 governmental access facilities equipment and capital costs. 935 Prospective lump-sum payments shall be made on an equivalent 936 per-subscriber basis calculated as follows: the amount of the 937 prospective funding obligations divided by the number of 938 subscribers being served by the incumbent cable service provider 939 at the time of payment, divided by the number of months 940 remaining in the incumbent cable or video service provider’s 941 franchise equals the monthly per subscriber amount to be paid by 942 the certificateholder until the expiration or termination of the 943 incumbent cable or video service provider’s franchise; and 944 2. If the incumbent cable or video service provider is 945 required to make payments for the funding of an institutional 946 network, the certificateholder shall pay an amount equal to the 947 incumbent’s funding obligations but not to exceed 1 percent of 948 the sales price, as defined in s. 202.11(15)202.11(13), for the 949 taxable monthly retail sales of cable or video programming 950 services the certificateholder received from subscribers in the 951 affected municipality or county. All definitions and exemptions 952 under chapter 202 apply in the determination of taxable monthly 953 retail sales of cable or video programming services. 954 Section 16. Section 624.105, Florida Statutes, is amended 955 to read: 956 624.105 Waiver of customer liability.—Any regulated company 957 as defined in s. 350.111, any electric utility as defined in s. 958 366.02(2), any utility as defined in s. 367.021(12) or s. 959 367.022(2) and (7), and any provider of communications services 960 as defined in s. 202.11(1)202.11(2)may charge for and include 961 an optional waiver of liability provision in their customer 962 contracts under which the entity agrees to waive all or a 963 portion of the customer’s liability for service from the entity 964 for a defined period in the event of the customer’s call to 965 active military service, death, disability, involuntary 966 unemployment, qualification for family leave, or similar 967 qualifying event or condition. Such provisions may not be 968 effective in the customer’s contract with the entity unless 969 affirmatively elected by the customer. No such provision shall 970 constitute insurance so long as the provision is a contract 971 between the entity and its customer. 972 Section 17. The following changes made in this act are 973 intended to be remedial in nature and apply retroactively, but 974 do not provide a basis for an assessment of any tax not paid or 975 create a right to a refund or credit of any tax paid before the 976 general effective date of this act: 977 (a) The changes made in section 2 of this act to 978 subsections (9), (11), and (15) of s. 202.11, Florida Statutes; 979 (b) The changes made in section 7 of this act to s. 202.22, 980 Florida Statutes; and 981 (c) The changes made in section 14 of this act to paragraph 982 (e) of subsection (1) of s. 212.05, Florida Statutes. 983 Section 18. This act shall take effect July 1, 2012.