Bill Text: FL S1202 | 2010 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Prepaid Wireless Telecommunications [EPSC]
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-04-26 - Read 3rd time -SJ 00862; Amendment(s) adopted (703208, 348766, 254308, 143616) -SJ 00862; Substituted CS/CS/HB 163 -SJ 00862; Laid on Table, companion bill(s) passed, see CS/CS/HB 163 (Ch. 2010-50) -SJ 00862 [S1202 Detail]
Download: Florida-2010-S1202-Comm_Sub.html
Bill Title: Prepaid Wireless Telecommunications [EPSC]
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-04-26 - Read 3rd time -SJ 00862; Amendment(s) adopted (703208, 348766, 254308, 143616) -SJ 00862; Substituted CS/CS/HB 163 -SJ 00862; Laid on Table, companion bill(s) passed, see CS/CS/HB 163 (Ch. 2010-50) -SJ 00862 [S1202 Detail]
Download: Florida-2010-S1202-Comm_Sub.html
Florida Senate - 2010 CS for SB 1202
By the Committee on Communications, Energy, and Public
Utilities; and Senator Bennett
579-02502-10 20101202c1
1 A bill to be entitled
2 An act relating to prepaid wireless telecommunications
3 service; amending s. 365.172, F.S.; revising the
4 definition of the term “fee”; removing the definition
5 of the term “prepaid calling arrangements” and
6 defining the term “prepaid wireless telecommunications
7 service”; redefining the term “wireless service”;
8 revising powers and duties of the Technology Program
9 within the Department of Management Services and the
10 E911 Board to include receiving and managing funds
11 received from a fee imposed on prepaid wireless
12 telecommunications service; providing that provisions
13 for an E911 fee do not apply to such prepaid service;
14 removing provisions for a study of the feasibility of
15 collecting a fee for such service; providing
16 definitions; imposing a prepaid wireless E911 fee on
17 each retail transaction in this state for prepaid
18 wireless telecommunications service; providing for
19 adjustment of the fee when the E911 fee is changed;
20 requiring the Department of Revenue to notify the
21 public of any adjustment to the fee; providing for
22 described retail transactions to be treated as
23 occurring in this state; providing that the fee is a
24 liability of the consumer; providing for collection of
25 the fee by the seller from the consumer; providing for
26 a statement of the fee to be made by the seller to the
27 consumer; directing the department to establish
28 procedures for a seller to document that a sale is not
29 a retail transaction; providing for the seller to
30 retain a certain amount of the fees collected and
31 remit the remaining funds to the department pursuant
32 to specified provisions; directing the department to
33 establish registration and payment procedures;
34 providing for audit and appeal procedures; providing
35 for application of the fee to the entire nonitemized
36 price under certain circumstances; providing for
37 distribution and use of the fees collected; providing
38 that the fee shall not be included in the base for
39 measuring any tax, fee, surcharge, or other charge by
40 the state or any governmental agency; prohibiting a
41 local governmental agency from levying the fee or an
42 additional fee on providers and sellers of prepaid
43 wireless telecommunication service for the provision
44 of E911 service; providing for the filing of prepaid
45 wireless E911 fees collected by the seller; limiting
46 providers’ and sellers’ liability for damages in
47 connection with provision of 911 or E911 service;
48 limiting providers’ and sellers’ liability for damages
49 for providing assistance to an investigative or law
50 enforcement officer; amending s. 365.173, F.S.;
51 conforming cross-references; providing an effective
52 date.
53
54 Be It Enacted by the Legislature of the State of Florida:
55
56 Section 1. Paragraphs (b), (k), (v), and (hh) of subsection
57 (3), subsection (4), paragraph (a) of subsection (5), and
58 subsection (8) of section 365.172, Florida Statutes, are
59 amended, subsections (9) through (14) are renumbered as
60 subsections (10) through (15), respectively, and a new
61 subsection (9) is added to that section, to read:
62 365.172 Emergency communications number “E911.”—
63 (3) DEFINITIONS.—Only as used in this section and ss.
64 365.171, 365.173, and 365.174, the term:
65 (b) “Authorized expenditures” means expenditures of the
66 fee, as specified in subsection (10) (9).
67 (k) “Fee” means the E911 fee authorized and imposed under
68 subsection (8) and the prepaid wireless E911 fee authorized and
69 imposed under subsection (9).
70 (v) “Prepaid wireless telecommunications service calling
71 arrangements” means a wireless service that allows a caller to
72 dial 911 to access the 911 system, that is a prepaid calling
73 arrangement as defined in s. 212.05(1)(e)1.(I), and that must be
74 paid for in advance and sold in predetermined units or dollars
75 that decline with use in a known amount has the same meaning as
76 defined in s. 212.05(1)(e).
77 (hh) “Wireless service” means “commercial mobile radio
78 service” as provided under ss. 3(27) and 332(d) of the Federal
79 Telecommunications Act of 1996, 47 U.S.C. ss. 151 et seq., and
80 the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103
81 66, August 10, 1993, 107 Stat. 312. The term includes service
82 provided by any wireless real-time two-way wire communication
83 device, including radio-telephone communications used in
84 cellular telephone service; personal communications service; or
85 the functional or competitive equivalent of a radio-telephone
86 communications line used in cellular telephone service, a
87 personal communications service, or a network radio access line.
88 The term does not include wireless providers that offer mainly
89 dispatch service in a more localized, noncellular configuration;
90 data-only service providers offering only data, one-way, or
91 stored-voice services on an interconnected basis; providers of
92 air-to-ground services; or public coast stations.
93 (4) POWERS AND DUTIES OF THE OFFICE.—The office shall
94 oversee the administration of the fee authorized and imposed on
95 subscribers of voice communications services under subsection
96 (8) and shall receive and manage funds transferred by the
97 Department of Revenue from the fee authorized and imposed on
98 prepaid wireless telecommunications service under subsection
99 (9).
100 (5) THE E911 BOARD.—
101 (a) The E911 Board is established to administer, with
102 oversight by the office, the fee imposed under subsection (8),
103 including receiving revenues derived from the fee and receiving
104 revenues transferred by the Department of Revenue from the fee
105 imposed under subsection (9); distributing portions of the
106 revenues to wireless providers, counties, and the office;
107 accounting for receipts, distributions, and income derived by
108 the funds maintained in the fund; and providing annual reports
109 to the Governor and the Legislature for submission by the office
110 on amounts collected and expended, the purposes for which
111 expenditures have been made, and the status of E911 service in
112 this state. In order to advise and assist the office in carrying
113 out the purposes of this section, the board, which shall have
114 the power of a body corporate, has the powers enumerated in
115 subsection (6).
116 (8) E911 FEE.—
117 (a) Each voice communications services provider shall
118 collect the fee described in this subsection. The fee shall not
119 be assessed on any pay telephone in the state. This subsection
120 and the fee imposed under this subsection do not apply to
121 prepaid wireless telecommunications service. Each provider, as
122 part of its monthly billing process, shall bill the fee as
123 follows:. The fee shall not be assessed on any pay telephone in
124 the state.
125 1. Each local exchange carrier shall bill the fee to the
126 local exchange subscribers on a service-identifier basis, up to
127 a maximum of 25 access lines per account bill rendered.
128 2. Except in the case of prepaid wireless
129 telecommunications service, each wireless provider shall bill
130 the fee to a subscriber on a per-service-identifier basis for
131 service identifiers whose primary place of use is within this
132 state. Before July 1, 2009, the fee shall not be assessed on or
133 collected from a provider with respect to an end user’s service
134 if that end user’s service is a prepaid calling arrangement that
135 is subject to s. 212.05(1)(e).
136 a. The board shall conduct a study to determine whether it
137 is feasible to collect E911 fees from the sale of prepaid
138 wireless service. If, based on the findings of the study, the
139 board determines that a fee should not be collected from the
140 sale of prepaid wireless service, it shall report its findings
141 and recommendation to the Governor, the President of the Senate,
142 and the Speaker of the House of Representatives by December 31,
143 2008. If the board determines that a fee should be collected
144 from the sale of prepaid wireless service, the board shall
145 collect the fee beginning July 1, 2009.
146 b. For purposes of this section, the term:
147 (I) “Prepaid wireless service” means the right to access
148 telecommunications services that must be paid for in advance and
149 is sold in predetermined units or dollars enabling the
150 originator to make calls such that the number of units or
151 dollars declines with use in a known amount.
152 (II) “Prepaid wireless service providers” includes those
153 persons who sell prepaid wireless service regardless of its
154 form, either as a retailer or reseller.
155 c. The study must include an evaluation of methods by which
156 E911 fees may be collected from end users and purchasers of
157 prepaid wireless service on an equitable, efficient,
158 competitively neutral, and nondiscriminatory basis and must
159 consider whether the collection of fees on prepaid wireless
160 service would constitute an efficient use of public funds given
161 the technological and practical considerations of collecting the
162 fee based on the varying methodologies prepaid wireless service
163 providers and their agents use in marketing prepaid wireless
164 service.
165 d. The study must include a review and evaluation of the
166 collection of E911 fees on prepaid wireless service at the point
167 of sale within the state. This evaluation must be consistent
168 with the collection principles of end user charges such as those
169 in s. 212.05(1)(e).
170 e. No later than 90 days after this section becomes law,
171 the board shall require all prepaid wireless service providers,
172 including resellers, to provide the board with information that
173 the board determines is necessary to discharge its duties under
174 this section, including information necessary for its
175 recommendation, such as total retail and reseller prepaid
176 wireless service sales.
177 f. All subscriber information provided by a prepaid
178 wireless service provider in response to a request from the
179 board while conducting this study is subject to s. 365.174.
180 g. The study shall be conducted by an entity competent and
181 knowledgeable in matters of state taxation policy if the board
182 does not possess that expertise. The study must be paid from the
183 moneys distributed to the board for administrative purposes
184 under s. 365.173(2)(f) but may not exceed $250,000.
185 3. Except in the case of prepaid wireless
186 telecommunications service, all voice communications services
187 providers not addressed under subparagraphs 1. and 2. shall bill
188 the fee on a per-service-identifier basis for service
189 identifiers whose primary place of use is within the state up to
190 a maximum of 25 service identifiers for each account bill
191 rendered.
192 4. The provider may list the fee as a separate entry on
193 each bill, in which case the fee must be identified as a fee for
194 E911 services. A provider shall remit the fee to the board only
195 if the fee is paid by the subscriber. If a provider receives a
196 partial payment for a monthly bill from a subscriber, the amount
197 received shall first be applied to the payment due the provider
198 for providing voice communications service.
199 (b) A provider is not obligated to take any legal action to
200 enforce collection of the fees for which any subscriber is
201 billed. A county subscribing to 911 service remains liable to
202 the provider delivering the 911 service or equipment for any 911
203 service, equipment, operation, or maintenance charge owed by the
204 county to the provider.
205 (c) For purposes of this section, the state and local
206 governments are not subscribers.
207 (d) Each provider may retain 1 percent of the amount of the
208 fees collected as reimbursement for the administrative costs
209 incurred by the provider to bill, collect, and remit the fee.
210 The remainder shall be delivered to the board and deposited by
211 the board into the fund. The board shall distribute the
212 remainder pursuant to s. 365.173.
213 (e) Effective September 1, 2007, voice communications
214 services providers billing the fee to subscribers shall deliver
215 revenues from the fee to the board within 60 days after the end
216 of the month in which the fee was billed, together with a
217 monthly report of the number of service identifiers in each
218 county. Each wireless provider and other applicable provider
219 identified in subparagraph (a)3. shall report the number of
220 service identifiers for subscribers whose place of primary use
221 is in each county. All provider subscriber information provided
222 to the board is subject to s. 365.174. If a provider chooses to
223 remit any fee amounts to the board before they are paid by the
224 subscribers, a provider may apply to the board for a refund of,
225 or may take a credit for, any such fees remitted to the board
226 which are not collected by the provider within 6 months
227 following the month in which the fees are charged off for
228 federal income tax purposes as bad debt.
229 (f) The rate of the fee shall be set by the board after
230 considering the factors set forth in paragraphs (h) and (i), but
231 may not exceed 50 cents per month per each service identifier.
232 The fee shall apply uniformly and be imposed throughout the
233 state, except for those counties that, before July 1, 2007, had
234 adopted an ordinance or resolution establishing a fee less than
235 50 cents per month per access line. In those counties the fee
236 established by ordinance may be changed only to the uniform
237 statewide rate no sooner than 30 days after notification is made
238 by the county’s board of county commissioners to the board.
239 (g) It is the intent of the Legislature that all revenue
240 from the fee be used as specified in s. 365.173(2)(a)-(i).
241 (h) No later than November 1, 2007, the board may adjust
242 the allocation percentages for distribution of the fund as
243 provided in s. 365.173. When setting the percentages and
244 contemplating any adjustments to the fee, the board shall
245 consider the following:
246 1. The revenues currently allocated for wireless service
247 provider costs for implementing E911 service and projected costs
248 for implementing E911 service, including recurring costs for
249 Phase I and Phase II and the effect of new technologies;
250 2. The appropriate level of funding needed to fund the
251 rural grant program provided for in s. 365.173(2)(g); and
252 3. The need to fund statewide, regional, and county grants
253 in accordance with sub-subparagraph (6)(a)3.b.
254 (i) The board may adjust the allocation percentages or
255 adjust the amount of the fee, or both, if necessary to ensure
256 full cost recovery or prevent overrecovery of costs incurred in
257 the provision of E911 service, including costs incurred or
258 projected to be incurred to comply with the order. Any new
259 allocation percentages or reduced or increased fee may not be
260 adjusted for 1 year. The fee may not exceed 50 cents per month
261 per each service identifier. The board-established fee, and any
262 board adjustment of the fee, shall be uniform throughout the
263 state, except for the counties identified in paragraph (f). No
264 less than 90 days before the effective date of any adjustment to
265 the fee, the board shall provide written notice of the adjusted
266 fee amount and effective date to each voice communications
267 services provider from which the board is then receiving the
268 fee.
269 (j) State and local taxes do not apply to the fee.
270 (k) A local government may not levy the fee or any
271 additional fee on providers or subscribers for the provision of
272 E911 service.
273 (l) For purposes of this section, the definitions contained
274 in s. 202.11 and the provisions of s. 202.155 apply in the same
275 manner and to the same extent as the definitions and provisions
276 apply to the taxes levied under chapter 202 on mobile
277 communications services.
278 (9) PREPAID WIRELESS TELECOMMUNICATIONS SERVICE.—
279 (a) As used in this subsection, the term:
280 1. “Consumer” means a person who purchases prepaid wireless
281 telecommunications service in a retail sale.
282 2. “Prepaid wireless E911 fee” means the fee that is
283 required to be collected by a seller from a consumer in the
284 amount established under paragraph (b).
285 3. “Provider” means a person who provides prepaid wireless
286 telecommunications service pursuant to a license issued by the
287 Federal Communications Commission.
288 4. “Retail transaction” means the purchase of prepaid
289 wireless telecommunications service from a seller for any
290 purpose other than resale.
291 5. “Seller” means a person who sells prepaid wireless
292 telecommunications service to another person.
293 (b)1.a. There is imposed a prepaid wireless E911 fee at a
294 rate of 1 percent of each retail transaction occurring in this
295 state.
296 b. The prepaid wireless E911 fee imposed under sub
297 subparagraph a. shall be increased or reduced, as applicable,
298 upon any change to the E911 fee imposed under subsection (8).
299 The adjusted rate shall be determined by dividing the amount of
300 the charge imposed under subsection (8) by $50. Such increase or
301 reduction shall be effective on the effective date of the change
302 to the E911 fee or, if later, the first day of the first
303 calendar month to occur at least 60 days after the enactment of
304 such change or notification of a change in the E911 fee as
305 provided in paragraph (8)(f). The Department of Revenue shall
306 provide not less than 30 days’ notice of such increase or
307 reduction on its public website.
308 c. For purposes of this subsection, a retail transaction
309 that is effected in person by a consumer at a business location
310 of the seller shall be treated as occurring in this state if
311 that business location is in this state, and any other retail
312 transaction shall be treated as occurring in this state if the
313 retail transaction is treated as occurring in this state under
314 s. 212.05(1)(e)1.a.(II).
315 d. If prepaid wireless telecommunications service is sold
316 along with one or more products or services for a single,
317 nonitemized price, the percentage specified in sub-subparagraph
318 a. shall apply to the entire nonitemized price unless the seller
319 elects to apply such percentage to:
320 (I) The dollar amount of the prepaid wireless
321 telecommunications service, if such dollar amount is disclosed
322 to the customer; or
323 (II) The portion of the price that is attributable to the
324 prepaid wireless telecommunications service, if the seller can
325 identify such portion by reasonable and verifiable standards
326 from the seller’s books and records that are kept in the regular
327 course of business for other purposes, including, but not
328 limited to, nontax purposes. However, if a minimal amount of
329 prepaid wireless telecommunications service is sold along with a
330 prepaid wireless device for a single, nonitemized price, the
331 seller may elect not to apply the percentage specified in
332 subparagraph a. to such transaction. For purposes of this sub
333 sub-subparagraph, an amount of service denominated as 10 minutes
334 or less or $5 or less is minimal.
335 2. The prepaid wireless E911 fee is the liability of the
336 consumer and not the seller or any provider.
337 3. The prepaid wireless E911 fee shall be collected by the
338 seller from the consumer with respect to each retail transaction
339 occurring in this state. The amount of the fee shall be
340 separately stated on an invoice, receipt, or other similar
341 document that is provided to the consumer by the seller or shall
342 otherwise be disclosed to the consumer.
343 4. The Department of Revenue shall establish procedures for
344 a seller of prepaid wireless telecommunications service to
345 document that a sale is not a retail transaction, which
346 procedures shall substantially coincide with the procedures for
347 documenting a sale for resale transaction under s. 212.186.
348 5.a. The seller shall remit to the Department of Revenue
349 all prepaid wireless E911 fees collected under this subsection,
350 including all such charges that the seller is deemed to have
351 collected when the amount of the charge was not separately
352 stated on an invoice, receipt, or other similar document
353 provided to the consumer by the seller, except that the seller
354 shall deduct and retain 3 percent of the fees collected.
355 b. The seller shall remit the fees collected to the
356 Department of Revenue at the times and in the manner provided
357 under s. 212.11. The Department of Revenue shall establish
358 registration and payment procedures that substantially coincide
359 with the registration and payment procedures that apply to the
360 tax imposed under chapter 212.
361 c. The audit and appeal procedures applicable under s.
362 212.13 apply to prepaid wireless E911 fees.
363 6. The Department of Revenue shall retain up to 2 percent
364 of the funds remitted under this subsection to reimburse its
365 direct costs of administering the collection and remittance of
366 prepaid wireless E911 fees. Thereafter, the department shall
367 transfer all remaining funds remitted under this subsection to
368 the E911 Board within 30 days after receipt for use as provided
369 in subsection (5).
370 7. The amount of the prepaid wireless E911 fee that is
371 collected by a seller from a consumer, regardless of whether
372 such amount is separately stated on an invoice, receipt, or
373 similar document provided to the consumer by the seller, shall
374 not be included in the base for measuring any tax, fee,
375 surcharge, or other charge that is imposed by this state, any
376 political subdivision of this state, or any governmental agency.
377 8. A local government may not levy the fee or any
378 additional fee on providers or sellers of prepaid wireless
379 telecommunications service for the provision of E911 service.
380 9.a. Notwithstanding subsections (3), (5), and (7), a
381 seller that qualifies for a quarterly, semiannual, or annual
382 filing pursuant to s. 212.11(1)(c) shall be governed by the
383 provisions in this subparagraph.
384 b. The seller may file and remit prepaid wireless E911 fees
385 to the department annually under procedures developed by the
386 department.
387 c. The seller may retain 25 percent of all prepaid wireless
388 E911 fees collected during the first 12 months after July 1,
389 2010, to offset costs incurred from collecting and remitting
390 such fees.
391 d. The seller may, in lieu of collecting the prepaid
392 wireless E911 fee from the customer and separately stating such
393 fee on the invoice, receipt, or other similar document provided
394 to the customer, elect to absorb the fee and become solely
395 liable for remitting such fee to the department.
396 (c)1. A provider or seller of prepaid wireless
397 telecommunications service shall not be liable for damages to
398 any person resulting from or incurred in connection with the
399 provision of, or failure to provide, 911 or E911 service or for
400 identifying, or failing to identify, the telephone number,
401 address, location, or name associated with any person or device
402 that is accessing or attempting to access 911 or E911 service.
403 2. A provider or seller of prepaid wireless
404 telecommunications service shall not be liable for damages to
405 any person resulting from or incurred in connection with the
406 provision of any assistance provided by legal process to any
407 investigative or law enforcement officer of the United States,
408 this or any other state, or any political subdivision of this or
409 any other state in connection with any investigation or other
410 law enforcement activity by such investigative or law
411 enforcement officer.
412 Section 2. Paragraphs (a), (b), and (c) of subsection (2)
413 of section 365.173, Florida Statutes, are amended to read:
414 365.173 Emergency Communications Number E911 System Fund.—
415 (2) As determined by the board pursuant to s.
416 365.172(8)(h), and subject to any modifications approved by the
417 board pursuant to s. 365.172(6)(a)3. or (8)(i), the moneys in
418 the fund shall be distributed and used only as follows:
419 (a) Sixty-seven percent of the moneys in the wireless
420 category shall be distributed each month to counties, based on
421 the total number of service identifiers in each county, and
422 shall be used exclusively for payment of:
423 1. Authorized expenditures, as specified in s.
424 365.172(10)(9).
425 2. Costs to comply with the requirements for E911 service
426 contained in the order and any future rules related to the
427 order.
428 (b) Ninety-seven percent of the moneys in the nonwireless
429 category shall be distributed each month to counties based on
430 the total number of service identifiers in each county and shall
431 be used exclusively for payment of authorized expenditures, as
432 specified in s. 365.172(10)(9).
433 (c) Any county that receives funds under paragraphs (a) and
434 (b) shall establish a fund to be used exclusively for the
435 receipt and expenditure of the revenues collected under
436 paragraphs (a) and (b). All fees placed in the fund and any
437 interest accrued shall be used solely for costs described in
438 subparagraphs (a)1. and 2. The money collected and interest
439 earned in this fund shall be appropriated for these purposes by
440 the county commissioners and incorporated into the annual county
441 budget. The fund shall be included within the financial audit
442 performed in accordance with s. 218.39. A county may carry
443 forward up to 20 percent of the total funds disbursed to the
444 county by the board during a calendar year for expenditures for
445 capital outlay, capital improvements, or equipment replacement,
446 if such expenditures are made for the purposes specified in
447 subparagraphs (a)1. and 2.; however, the 20-percent limitation
448 does not apply to funds disbursed to a county under s.
449 365.172(6)(a)3., and a county may carry forward any percentage
450 of the funds, except that any grant provided shall continue to
451 be subject to any condition imposed by the board. In order to
452 prevent an excess recovery of costs incurred in providing E911
453 service, a county that receives funds greater than the
454 permissible E911 costs described in s. 365.172(10)(9), including
455 the 20 percent carryforward allowance, must return the excess
456 funds to the E911 board to be allocated under s. 365.172(6)(a).
457
458 The Legislature recognizes that the fee authorized under s.
459 365.172 may not necessarily provide the total funding required
460 for establishing or providing the E911 service. It is the intent
461 of the Legislature that all revenue from the fee be used as
462 specified in this subsection.
463 Section 3. This act shall take effect July 1, 2010.
