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  arrangementsmeans 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.