Florida Senate - 2012 COMMITTEE AMENDMENT
Bill No. SB 1060
Barcode 455260
LEGISLATIVE ACTION
Senate . House
Comm: FAV .
01/30/2012 .
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The Committee on Communications, Energy, and Public Utilities
(Bogdanoff) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsection (1) of section 202.105, Florida
6 Statutes, is amended to read:
7 202.105 Legislative findings and intent.—
8 (1) It is declared to be a specific legislative finding
9 that the creation of this chapter fulfills important state
10 interests by reforming the tax laws to provide a fair,
11 efficient, and uniform method for taxing communications services
12 sold in this state. This chapter is essential to the continued
13 economic vitality of this increasingly important industry
14 because it restructures state and local taxes and fees to
15 account for the impact of federal legislation, industry
16 deregulation, and the multitude of convergence of service
17 offerings that is now taking place among providers offering
18 functionally equivalent communications services in today’s
19 marketplace. This chapter promotes the increased competition
20 that accompanies deregulation by embracing a competitively
21 neutral tax policy that will free consumers to choose a provider
22 based on tax-neutral considerations. This chapter further spurs
23 new competition by simplifying an extremely complicated state
24 and local tax and fee system. Simplification will lower the cost
25 of collecting taxes and fees, increase service availability, and
26 place downward pressure on price. Newfound administrative
27 efficiency is demonstrated by a reduction in the number of
28 returns that a provider must file each month. By restructuring
29 separate taxes and fees into a revenue-neutral communications
30 services tax centrally administered by the department, this
31 chapter will ensure that the growth of the industry is
32 unimpaired by excessive governmental regulation. The tax imposed
33 pursuant to this chapter is a replacement for taxes and fees
34 previously imposed and is not a new tax. The taxes imposed and
35 administered pursuant to this chapter are of general application
36 and are imposed in a uniform, consistent, and nondiscriminatory
37 manner.
38 Section 2. Section 202.11, Florida Statutes, is amended to
39 read:
40 202.11 Definitions.—As used in this chapter:
41 (1) “Cable service” means the transmission of video, audio,
42 or other programming service to purchasers, and the purchaser
43 interaction, if any, required for the selection or use of any
44 such programming service, regardless of whether the programming
45 is transmitted over facilities owned or operated by the cable
46 service provider or over facilities owned or operated by one or
47 more other dealers of communications services. The term includes
48 point-to-point and point-to-multipoint distribution services by
49 which programming is transmitted or broadcast by microwave or
50 other equipment directly to the purchaser’s premises, but does
51 not include direct-to-home satellite service. The term includes
52 basic, extended, premium, pay-per-view, digital, and music
53 services.
54 (1)(2) “Communications services” means the transmission,
55 conveyance, or routing of voice, data, audio, video, or any
56 other information or signals, including video cable services, to
57 a point, or between or among points, by or through any
58 electronic, radio, satellite, cable, optical, microwave, or
59 other medium or method now in existence or hereafter devised,
60 regardless of the protocol used for such transmission or
61 conveyance. The term includes such transmission, conveyance, or
62 routing in which computer processing applications are used to
63 act on the form, code, or protocol of the content for purposes
64 of transmission, conveyance, or routing without regard to
65 whether such service is referred to as voice-over-Internet
66 protocol services or is classified by the Federal Communications
67 Commission as enhanced or value-added. The term does not
68 include:
69 (a) Information services.
70 (b) Installation or maintenance of wiring or equipment on a
71 customer’s premises.
72 (c) The sale or rental of tangible personal property.
73 (d) The sale of advertising, including, but not limited to,
74 directory advertising.
75 (e) Bad check charges.
76 (f) Late payment charges.
77 (g) Billing and collection services.
78 (h) Internet access service, electronic mail service,
79 electronic bulletin board service, or similar online computer
80 services.
81 (i) Digital goods.
82 (j) Digital services.
83 (2)(3) “Dealer” means a person registered with the
84 department as a provider of communications services in this
85 state.
86 (3)(4) “Department” means the Department of Revenue.
87 (4) “Digital good” means any downloaded good or product
88 that is delivered or transferred by means other than tangible
89 storage media, including downloaded games, software, music, or
90 other digital content. The term does not include video service.
91 (5) “Digital service” means any service, other than video
92 service, which is provided electronically, including remotely
93 provided access to or use of software or another digital good,
94 and also includes the following services, if they are provided
95 remotely: monitoring, security, distance learning, energy
96 management, medical diagnostic, mechanical diagnostic, and
97 vehicle tracking services. If a digital service is bundled for
98 sale with the transmission, conveyance, or routing of any
99 information or signals, the bundled service is a digital service
100 unless the tax imposed under this chapter and chapter 203 has
101 not been paid with respect to such transmission, conveyance, or
102 routing.
103 (6)(5) “Direct-to-home satellite service” has the meaning
104 ascribed in the Communications Act of 1934, 47 U.S.C. s. 303(v).
105 (7)(6) “Information service” means the offering of a
106 capability for generating, acquiring, storing, transforming,
107 processing, retrieving, using, or making available information
108 via communications services, including, but not limited to,
109 electronic publishing, web-hosting service, and end-user 900
110 number service. The term does not include any video, audio, or
111 other programming service that uses point-to-multipoint
112 distribution by which programming is delivered, transmitted, or
113 broadcast by any means, including any interaction that may be
114 necessary for selecting and using the service, regardless of
115 whether the programming is delivered, transmitted, or broadcast
116 over facilities owned or operated by the seller or another, or
117 whether denominated as cable service or as basic, extended,
118 premium, pay-per-view, digital, music, or two-way cable service.
119 (8) “Internet access service” has the same meaning as
120 ascribed to the term “Internet access” by s. 1105(5) of the
121 Internet Tax Freedom Act, 47 U.S.C. s. 151 note, as amended by
122 Pub. L. No. 110-108.
123 (9)(7) “Mobile communications service” means commercial
124 mobile radio service, as defined in 47 C.F.R. s. 20.3 as in
125 effect on June 1, 1999. The term does not include air-ground
126 radiotelephone service as defined in 47 C.F.R. s. 22.99 as in
127 effect on June 1, 1999.
128 (10)(8) “Person” has the meaning ascribed in s. 212.02.
129 (11)(9) “Prepaid calling arrangement” means the separately
130 stated retail sale by advance payment of communications services
131 that must be paid for in advance; that may be used to place or
132 receive consist exclusively of telephone calls originated; that
133 are enabled by using an access number, authorization code, or
134 other means that may be manually, electronically, or otherwise
135 entered;, and that are sold in predetermined units or dollars of
136 which the number declines on a predetermined basis with use in a
137 known amount.
138 (12)(10) “Purchaser” means the person paying for or
139 obligated to pay for communications services.
140 (13)(11) “Retail sale” means the sale of communications
141 services for any purpose other than for resale or for use as a
142 component part of or for integration into communications
143 services to be resold in the ordinary course of business.
144 However, any sale for resale must comply with s. 202.16(2) and
145 the rules adopted thereunder.
146 (14)(12) “Sale” means the provision of communications
147 services for a consideration.
148 (15)(13) “Sales price” means the total amount charged in
149 money or other consideration by a dealer for the sale of the
150 right or privilege of using communications services in this
151 state, including any property or other service, not described in
152 paragraph (a), which is services that are part of the sale and
153 for which the charge is not separately itemized on a customer’s
154 bill or separately allocated under subparagraph (b)8. The sales
155 price of communications services may shall not be reduced by any
156 separately identified components of the charge which that
157 constitute expenses of the dealer, including, but not limited
158 to, sales taxes on goods or services purchased by the dealer,
159 property taxes, taxes measured by net income, and universal
160 service fund fees.
161 (a) The sales price of communications services includes
162 shall include, whether or not separately stated, charges for any
163 of the following:
164 1. The connection, movement, change, or termination of
165 communications services.
166 2. The detailed billing of communications services.
167 3. The sale of directory listings in connection with a
168 communications service.
169 4. Central office and custom calling features.
170 5. Voice mail and other messaging service.
171 6. Directory assistance.
172 7. The service of sending or receiving a document commonly
173 referred to as a facsimile or “fax,” except when performed
174 during the course of providing professional or advertising
175 services.
176 (b) The sales price of communications services does not
177 include charges for any of the following:
178 1. An Any excise tax, sales tax, or similar tax levied by
179 the United States or any state or local government on the
180 purchase, sale, use, or consumption of any communications
181 service, including, but not limited to, a any tax imposed under
182 this chapter or chapter 203 which is permitted or required to be
183 added to the sales price of such service, if the tax is stated
184 separately.
185 2. A Any fee or assessment levied by the United States or
186 any state or local government, including, but not limited to,
187 regulatory fees and emergency telephone surcharges, which must
188 is required to be added to the price of the such service if the
189 fee or assessment is separately stated.
190 3. Communications services paid for by inserting coins into
191 coin-operated communications devices available to the public.
192 4. The sale or recharge of a prepaid calling arrangement.
193 5. The provision of air-to-ground communications services,
194 defined as a radio service provided to a purchaser purchasers
195 while on board an aircraft.
196 6. A dealer’s internal use of communications services in
197 connection with its business of providing communications
198 services.
199 7. Charges for property or other services that are not part
200 of the sale of communications services, if such charges are
201 stated separately from the charges for communications services.
202 8. To the extent required by federal law, Charges for goods
203 and services that are exempt from tax under this chapter,
204 including Internet access services but excluding any item
205 described in paragraph (a), that which are not separately
206 itemized on a customer’s bill, but that which can be reasonably
207 identified from the selling dealer’s books and records kept in
208 the regular course of business. The dealer may support the
209 allocation of charges with books and records kept in the regular
210 course of business covering the dealer’s entire service area,
211 including territories outside this state.
212 (16)(14) “Service address” means:
213 (a) Except as otherwise provided in this section:
214 1. The location of the communications equipment from which
215 communications services originate or at which communications
216 services are received by the customer;
217 2. In the case of a communications service paid through a
218 credit or payment mechanism that does not relate to a service
219 address, such as a bank, travel, debit, or credit card, and in
220 the case of third-number and calling-card calls, the term
221 “service address” means the address of the central office, as
222 determined by the area code and the first three digits of the
223 seven-digit originating telephone number; or
224 3. If the location of the equipment described in
225 subparagraph 1. is not known and subparagraph 2. is
226 inapplicable, the term “service address” means the location of
227 the customer’s primary use of the communications service. For
228 purposes of this subparagraph, the location of the customer’s
229 primary use of a communications service is the residential
230 street address or the business street address of the customer.
231 (b) In the case of video cable services and direct-to-home
232 satellite services, the location where the customer receives the
233 services in this state.
234 (c) In the case of mobile communications services, the
235 customer’s place of primary use.
236 (17)(15) “Unbundled network element” means a network
237 element, as defined in 47 U.S.C. s. 153(29), to which access is
238 provided on an unbundled basis pursuant to 47 U.S.C. s.
239 251(c)(3).
240 (18)(16) “Private communications service” means a
241 communications service that entitles the subscriber or user to
242 exclusive or priority use of a communications channel or group
243 of channels between or among channel termination points,
244 regardless of the manner in which such channel or channels are
245 connected, and includes switching capacity, extension lines,
246 stations, and any other associated services that which are
247 provided in connection with the use of such channel or channels.
248 (19)(17)(a) “Customer” means:
249 1. The person or entity that contracts with the home
250 service provider for mobile communications services; or
251 2. If the end user of mobile communications services is not
252 the contracting party, the end user of the mobile communications
253 service. This subparagraph only applies only for the purpose of
254 determining the place of primary use.
255 (b) The term “Customer” does not include:
256 1. A reseller of mobile communications services; or
257 2. A serving carrier under an agreement to serve the
258 customer outside the home service provider’s licensed service
259 area.
260 (20)(18) “Enhanced zip code” means a United States postal
261 zip code of 9 or more digits.
262 (21)(19) “Home service provider” means the facilities-based
263 carrier or reseller with which the customer contracts for the
264 provision of mobile communications services.
265 (22)(20) “Licensed service area” means the geographic area
266 in which the home service provider is authorized by law or
267 contract to provide mobile communications service to the
268 customer.
269 (23)(21) “Place of primary use” means the street address
270 representative of where the customer’s use of the mobile
271 communications service primarily occurs, which must be:
272 (a) The residential street address or the primary business
273 street address of the customer; and
274 (b) Within the licensed service area of the home service
275 provider.
276 (24)(22)(a) “Reseller” means a provider who purchases
277 communications services from another communications service
278 provider and then resells, uses as a component part of, or
279 integrates the purchased services into a mobile communications
280 service.
281 (b) The term “Reseller” does not include a serving carrier
282 with which a home service provider arranges for the services to
283 its customers outside the home service provider’s licensed
284 service area.
285 (25)(23) “Serving carrier” means a facilities-based carrier
286 providing mobile communications service to a customer outside a
287 home service provider’s or reseller’s licensed service area.
288 (26)(24) “Video service” means the transmission of video,
289 audio, or other programming service to a purchaser, and the
290 purchaser interaction, if any, required for the selection or use
291 of a programming service, regardless of whether the programming
292 is transmitted over facilities owned or operated by the video
293 service provider or over facilities owned or operated by another
294 dealer of communications services. The term includes point-to
295 point and point-to-multipoint distribution services through
296 which programming is transmitted or broadcast by microwave or
297 other equipment directly to the purchaser’s premises, but does
298 not include direct-to-home satellite service. The term includes
299 basic, extended, premium, pay-per-view, digital video, two-way
300 cable, and music services has the same meaning as that provided
301 in s. 610.103.
302 Section 3. Subsection (1) of section 202.125, Florida
303 Statutes, is amended to read:
304 202.125 Sales of communications services; specified
305 exemptions.—
306 (1) The separately stated sales price of communications
307 services sold to residential households is exempt from the tax
308 imposed by s. 202.12 and s. 203.01(1)(b)3. This exemption does
309 not apply to any residence that constitutes all or part of a
310 transient public lodging establishment as defined in chapter
311 509, any mobile communications service, any video cable service,
312 or any direct-to-home satellite service.
313 Section 4. Paragraph (a) of subsection (2) of section
314 202.16, Florida Statutes, is amended to read:
315 202.16 Payment.—The taxes imposed or administered under
316 this chapter and chapter 203 shall be collected from all dealers
317 of taxable communications services on the sale at retail in this
318 state of communications services taxable under this chapter and
319 chapter 203. The full amount of the taxes on a credit sale,
320 installment sale, or sale made on any kind of deferred payment
321 plan is due at the moment of the transaction in the same manner
322 as a cash sale.
323 (2)(a) A sale of communications services that are used as a
324 component part of or integrated into a communications service or
325 prepaid calling arrangement for resale, including, but not
326 limited to, carrier-access charges, interconnection charges paid
327 by providers of mobile communication services or other
328 communication services, charges paid by a video cable service
329 provider providers for the purchase of video programming or the
330 transmission of video or other programming by another dealer of
331 communications services, charges for the sale of unbundled
332 network elements, and any other intercompany charges for the use
333 of facilities for providing communications services for resale,
334 must be made in compliance with the rules of the department. A
335 Any person who makes a sale for resale which is not in
336 compliance with these rules is liable for any tax, penalty, and
337 interest due for failing to comply, to be calculated pursuant to
338 s. 202.28(2)(a).
339 Section 5. Paragraph (c) of subsection (3) of section
340 202.18, Florida Statutes, is amended to read:
341 202.18 Allocation and disposition of tax proceeds.—The
342 proceeds of the communications services taxes remitted under
343 this chapter shall be treated as follows:
344 (3)
345 (c)1. Except as otherwise provided in this paragraph,
346 proceeds of the taxes levied pursuant to s. 202.19, less amounts
347 deducted for costs of administration in accordance with
348 paragraph (b), shall be distributed monthly to the appropriate
349 jurisdictions. The proceeds of taxes imposed pursuant to s.
350 202.19(5) shall be distributed in the same manner as
351 discretionary surtaxes are distributed, in accordance with ss.
352 212.054 and 212.055.
353 2. The department shall make any adjustments to the
354 distributions pursuant to this section which are necessary to
355 reflect the proper amounts due to individual jurisdictions or
356 trust funds. In the event that the department adjusts amounts
357 due to reflect a correction in the situsing of a customer, such
358 adjustment shall be limited to the amount of tax actually
359 collected from such customer by the dealer of communication
360 services.
361 3.a. Notwithstanding the time period specified in s.
362 202.22(5), Adjustments in distributions which are necessary to
363 correct misallocations between jurisdictions shall be governed
364 by this subparagraph. If the department determines that
365 misallocations between jurisdictions occurred, it shall provide
366 written notice of such determination to all affected
367 jurisdictions. The notice shall include the amount of the
368 misallocations, the basis upon which the determination was made,
369 data supporting the determination, and the identity of each
370 affected jurisdiction. The notice shall also inform all affected
371 jurisdictions of their authority to enter into a written
372 agreement establishing a method of adjustment as described in
373 sub-subparagraph c.
374 b. An adjustment affecting a distribution to a jurisdiction
375 which is less than 90 percent of the average monthly
376 distribution to that jurisdiction for the 6 months immediately
377 preceding the department’s determination, as reported by all
378 communications services dealers, shall be made in the month
379 immediately following the department’s determination that
380 misallocations occurred.
381 c. If an adjustment affecting a distribution to a
382 jurisdiction equals or exceeds 90 percent of the average monthly
383 distribution to that jurisdiction for the 6 months immediately
384 preceding the department’s determination, as reported by all
385 communications services dealers, the affected jurisdictions may
386 enter into a written agreement establishing a method of
387 adjustment. If the agreement establishing a method of adjustment
388 provides for payments of local communications services tax
389 monthly distributions, the amount of any such payment agreed to
390 may not exceed the local communications services tax monthly
391 distributions available to the jurisdiction that was allocated
392 amounts in excess of those to which it was entitled. If affected
393 jurisdictions execute a written agreement specifying a method of
394 adjustment, a copy of the written agreement shall be provided to
395 the department no later than the first day of the month
396 following 90 days after the date the department transmits notice
397 of the misallocation. If the department does not receive a copy
398 of the written agreement within the specified time period, an
399 adjustment affecting a distribution to a jurisdiction made
400 pursuant to this sub-subparagraph shall be prorated over a time
401 period that equals the time period over which the misallocations
402 occurred.
403 Section 6. Subsections (1) and (3) of section 202.195,
404 Florida Statutes, are amended to read:
405 202.195 Proprietary confidential business information;
406 public records exemption.—
407 (1) Proprietary confidential business information obtained
408 from a telecommunications company or from a franchised or
409 certificated video service provider cable company for the
410 purposes of imposing fees for occupying the public rights-of
411 way, assessing the local communications services tax pursuant to
412 s. 202.19, or occupying or regulating the public rights-of-way,
413 held by a local governmental entity, is confidential and exempt
414 from s. 119.07(1) and s. 24(a), Art. I of the State
415 Constitution. Such proprietary confidential business information
416 held by a local governmental entity may be used only for the
417 purposes of imposing such fees, assessing such tax, or
418 regulating such rights-of-way, and may not be used for any other
419 purposes, including, but not limited to, commercial or
420 competitive purposes.
421 (3) Nothing in This exemption does not expand expands the
422 information or documentation that a local governmental entity
423 may properly request under applicable law pursuant to the
424 imposition of fees for occupying the rights-of-way, the local
425 communication services tax, or the regulation of its public
426 rights-of-way.
427 Section 7. Paragraph (b) of subsection (2) of section
428 202.20, Florida Statutes, is amended to read:
429 202.20 Local communications services tax conversion rates.—
430 (2)
431 (b) Except as otherwise provided in this subsection, the
432 term “replaced revenue sources,” as used in this section, means
433 the following taxes, charges, fees, or other impositions to the
434 extent that the respective local taxing jurisdictions were
435 authorized to impose them prior to July 1, 2000.
436 1. With respect to municipalities and charter counties and
437 the taxes authorized by s. 202.19(1):
438 a. The public service tax on telecommunications authorized
439 by former s. 166.231(9).
440 b. Franchise fees on video cable service providers as
441 authorized by 47 U.S.C. s. 542.
442 c. The public service tax on prepaid calling arrangements.
443 d. Franchise fees on dealers of communications services
444 which use the public roads or rights-of-way, up to the limit set
445 forth in s. 337.401. For purposes of calculating rates under
446 this section, it is the legislative intent that charter counties
447 be treated as having had the same authority as municipalities to
448 impose franchise fees on recurring local telecommunication
449 service revenues before prior to July 1, 2000. However, the
450 Legislature recognizes that the authority of charter counties to
451 impose such fees is in dispute, and the treatment provided in
452 this section is not an expression of legislative intent that
453 charter counties actually do or do not possess such authority.
454 e. Actual permit fees relating to placing or maintaining
455 facilities in or on public roads or rights-of-way, collected
456 from providers of long-distance, cable, and mobile
457 communications services for the fiscal year ending September 30,
458 1999; however, if a municipality or charter county elects the
459 option to charge permit fees pursuant to s. 337.401(3)(c)1.a.,
460 such fees may shall not be included as a replaced revenue
461 source.
462 2. With respect to all other counties and the taxes
463 authorized in s. 202.19(1), franchise fees on video cable
464 service providers as authorized by 47 U.S.C. s. 542.
465 Section 8. Subsections (5) and (6) of section 202.22,
466 Florida Statutes, are amended to read:
467 202.22 Determination of local tax situs.—
468 (5) If a dealer of communications services does not use one
469 or more of the methods specified in subsection (1) for
470 determining the local taxing jurisdiction in which one or more
471 service addresses are a service address is located and:,
472 (a) The dealer’s failure to use one or more of such methods
473 results in a net aggregate underpayment of all taxes levied
474 pursuant to s. 202.19 with respect to one or more tax periods
475 that are being examined by the department; and
476 (b) The department has determined the misallocations
477 between jurisdictions for all taxes levied pursuant to s. 202.19
478 and collected by the dealer with respect to any tax period being
479 examined by the department,
480
481 the dealer of communications services may be held liable to the
482 department for the net aggregate underpayment of any tax, and
483 for including interest and penalties attributable to the net
484 aggregate underpayment of tax, which is due as a result of
485 assigning one or more the service addresses address to an
486 incorrect local taxing jurisdiction. However, the dealer of
487 communications services is not liable for any tax, interest, or
488 penalty under this subsection unless the department has
489 determined the net aggregate underpayment of tax for any tax
490 period that is being examined, taking into account all
491 underpayments and overpayments for such period or periods to the
492 extent that such amount was collected and remitted by the dealer
493 of communications services with respect to a tax imposed by
494 another local taxing jurisdiction. Upon determining that an
495 amount was collected and remitted by a dealer of communications
496 services with respect to a tax imposed by another local taxing
497 jurisdiction, the department shall adjust the respective amounts
498 of the proceeds paid to each such taxing jurisdiction under s.
499 202.18 in the month immediately following such determination.
500 (6)(a) Pursuant to rules adopted by the department, each
501 dealer of communications services must notify the department of
502 the methods it intends to employ for determining the local
503 taxing jurisdiction in which service addresses are located.
504 (b) Notwithstanding s. 202.28, if a dealer of
505 communications services:
506 1. Employs a method of assigning service addresses other
507 than as set forth in paragraph (1)(a), paragraph (1)(b), or
508 paragraph (1)(c), the deduction allowed to the dealer of
509 communications services as compensation under s. 202.28 shall be
510 0.25 percent of that portion of the tax due and accounted for
511 and remitted to the department which is attributable to such
512 method of assigning service addresses other than as set forth in
513 paragraph (1)(a), paragraph (1)(b), or paragraph (1)(c).
514 2. Employs a method of assigning service addresses as set
515 forth in paragraph (1)(a), paragraph (1)(b), or paragraph
516 (1)(c), the department may not deny the deduction allowed to the
517 dealer of communications services as compensation allowed under
518 s. 202.28 because the dealer assigned one or more service
519 addresses to an incorrect local taxing jurisdiction.
520 Section 9. Subsection (3) is added to section 202.231,
521 Florida Statutes, to read:
522 202.231 Provision of information to local taxing
523 jurisdictions.—
524 (3) The gross taxable sales and net tax information
525 contained in the monthly reports required by this section shall
526 be aggregated on a jurisdiction-by-jurisdiction basis, and the
527 aggregate jurisdiction-by-jurisdiction information shall be made
528 available by the department to the public through the
529 department’s website for each fiscal year this chapter has been
530 in effect.
531 Section 10. Paragraphs (a) and (c) of subsection (2) of
532 section 202.24, Florida Statutes, are amended to read:
533 202.24 Limitations on local taxes and fees imposed on
534 dealers of communications services.—
535 (2)(a) Except as provided in paragraph (c), each public
536 body is prohibited from:
537 1. Levying on or collecting from dealers or purchasers of
538 communications services any tax, charge, fee, or other
539 imposition on or with respect to the provision or purchase of
540 communications services.
541 2. Requiring any dealer of communications services to enter
542 into or extend the term of a franchise or other agreement that
543 requires the payment of a tax, charge, fee, or other imposition.
544 3. Adopting or enforcing any provision of any ordinance or
545 agreement to the extent that such provision obligates a dealer
546 of communications services to charge, collect, or pay to the
547 public body a tax, charge, fee, or other imposition.
548
549 Municipalities and counties may not negotiate those terms and
550 conditions related to franchise fees or the definition of gross
551 revenues or other definitions or methodologies related to the
552 payment or assessment of franchise fees on providers of cable or
553 video services.
554 (c) This subsection does not apply to:
555 1. Local communications services taxes levied under this
556 chapter.
557 2. Ad valorem taxes levied pursuant to chapter 200.
558 3. Business taxes levied under chapter 205.
559 4. “911” service charges levied under chapter 365.
560 5. Amounts charged for the rental or other use of property
561 owned by a public body which is not in the public rights-of-way
562 to a dealer of communications services for any purpose,
563 including, but not limited to, the placement or attachment of
564 equipment used in the provision of communications services.
565 6. Permit fees of general applicability which are not
566 related to placing or maintaining facilities in or on public
567 roads or rights-of-way.
568 7. Permit fees related to placing or maintaining facilities
569 in or on public roads or rights-of-way pursuant to s. 337.401.
570 8. Any in-kind requirements, institutional networks, or
571 contributions for, or in support of, the use or construction of
572 public, educational, or governmental access facilities allowed
573 under federal law and imposed on providers of cable or video
574 service pursuant to any existing ordinance or an existing
575 franchise agreement granted by each municipality or county,
576 under which ordinance or franchise agreement service is provided
577 before prior to July 1, 2007, or as permitted under chapter 610.
578 Nothing in This subparagraph does not shall prohibit the ability
579 of providers of cable or video service from recovering the to
580 recover such expenses as allowed under federal law.
581 9. Special assessments and impact fees.
582 10. Pole attachment fees that are charged by a local
583 government for attachments to utility poles owned by the local
584 government.
585 11. Utility service fees or other similar user fees for
586 utility services.
587 12. Any other generally applicable tax, fee, charge, or
588 imposition authorized by general law on July 1, 2000, which is
589 not specifically prohibited by this subsection or included as a
590 replaced revenue source in s. 202.20.
591 Section 11. Paragraph (j) of subsection (3) of section
592 202.26, Florida Statutes, is amended to read:
593 202.26 Department powers.—
594 (3) To administer the tax imposed by this chapter, the
595 department may adopt rules relating to:
596 (j) The types of books and records kept in the regular
597 course of business which must be available during an audit of a
598 dealer’s books and records when the dealer has made an
599 allocation or attribution pursuant to the definition of sales
600 prices in s. 202.11(15)(b)8. 202.11(13)(b)8. and examples of
601 methods for determining the reasonableness thereof. Books and
602 records kept in the regular course of business include, but are
603 not limited to, general ledgers, price lists, cost records,
604 customer billings, billing system reports, tariffs, and other
605 regulatory filings and rules of regulatory authorities. The Such
606 records may be required to be made available to the department
607 in an electronic format when so kept by the dealer. The dealer
608 may support the allocation of charges with books and records
609 kept in the regular course of business covering the dealer’s
610 entire service area, including territories outside this state.
611 During an audit, the department may reasonably require
612 production of any additional books and records found necessary
613 to assist in its determination.
614 Section 12. Paragraph (a) of subsection (1) of section
615 203.01, Florida Statutes, is amended to read:
616 203.01 Tax on gross receipts for utility and communications
617 services.—
618 (1)(a)1. A tax is imposed on gross receipts from utility
619 services that are delivered to a retail consumer in this state.
620 The Such tax shall be levied as provided in paragraphs (b)-(j).
621 2. A tax is levied on communications services as defined in
622 s. 202.11(1) 202.11(2). The Such tax shall be applied to the
623 same services and transactions as are subject to taxation under
624 chapter 202, and to communications services that are subject to
625 the exemption provided in s. 202.125(1). The Such tax shall be
626 applied to the sales price of communications services when sold
627 at retail, as the such terms are defined in s. 202.11, shall be
628 due and payable at the same time as the taxes imposed pursuant
629 to chapter 202, and shall be administered and collected pursuant
630 to the provisions of chapter 202.
631 Section 13. Paragraph (e) of subsection (1) of section
632 212.05, Florida Statutes, is amended to read:
633 212.05 Sales, storage, use tax.—It is hereby declared to be
634 the legislative intent that every person is exercising a taxable
635 privilege who engages in the business of selling tangible
636 personal property at retail in this state, including the
637 business of making mail order sales, or who rents or furnishes
638 any of the things or services taxable under this chapter, or who
639 stores for use or consumption in this state any item or article
640 of tangible personal property as defined herein and who leases
641 or rents such property within the state.
642 (1) For the exercise of such privilege, a tax is levied on
643 each taxable transaction or incident, which tax is due and
644 payable as follows:
645 (e)1. At the rate of 6 percent on charges for:
646 a. Prepaid calling arrangements. The tax on charges for
647 prepaid calling arrangements shall be collected at the time of
648 sale and remitted by the selling dealer.
649 (I) “Prepaid calling arrangement” means the separately
650 stated retail sale by advance payment of communications services
651 that must be paid for in advance; that may be used to place or
652 receive consist exclusively of telephone calls; that are enabled
653 originated by using an access number, authorization code, or
654 other means that may be manually, electronically, or otherwise
655 entered; and that are sold in predetermined units or dollars
656 whose number declines on a predetermined basis with use in a
657 known amount.
658 (II) If the sale or recharge of the prepaid calling
659 arrangement does not take place at the dealer’s place of
660 business, it shall be deemed to take place at the customer’s
661 shipping address or, if no item is shipped, at the customer’s
662 address or the location associated with the customer’s mobile
663 telephone number.
664 (III) The sale or recharge of a prepaid calling arrangement
665 shall be treated as a sale of tangible personal property for
666 purposes of this chapter, whether or not a tangible item
667 evidencing such arrangement is furnished to the purchaser, and
668 such sale within this state subjects the selling dealer to the
669 jurisdiction of this state for purposes of this subsection.
670 b. The installation of telecommunication and telegraphic
671 equipment.
672 c. Electrical power or energy, except that the tax rate for
673 charges for electrical power or energy is 7 percent.
674 2. The provisions of s. 212.17(3), regarding credit for tax
675 paid on charges subsequently found to be worthless, shall be
676 equally applicable to any tax paid under the provisions of this
677 section on charges for prepaid calling arrangements,
678 telecommunication or telegraph services, or electric power
679 subsequently found to be uncollectible. The word “charges” in
680 this paragraph does not include any excise or similar tax levied
681 by the Federal Government, any political subdivision of the
682 state, or any municipality upon the purchase, sale, or recharge
683 of prepaid calling arrangements or upon the purchase or sale of
684 telecommunication, television system program, or telegraph
685 service or electric power, which tax is collected by the seller
686 from the purchaser.
687 Section 14. Paragraph (a) of subsection (1) of section
688 610.118, Florida Statutes, is amended to read:
689 610.118 Impairment; court-ordered operations.—
690 (1) If an incumbent cable or video service provider is
691 required to operate under its existing franchise and is legally
692 prevented by a lawfully issued order of a court of competent
693 jurisdiction from exercising its right to terminate its existing
694 franchise pursuant to the terms of s. 610.105, any
695 certificateholder providing cable service or video service in
696 whole or in part within the service area that is the subject of
697 the incumbent cable or video service provider’s franchise shall,
698 for as long as the court order remains in effect, comply with
699 the following franchise terms and conditions as applicable to
700 the incumbent cable or video service provider in the service
701 area:
702 (a) The certificateholder shall pay to the municipality or
703 county:
704 1. Any prospective lump-sum or recurring per-subscriber
705 funding obligations to support public, educational, and
706 governmental access channels or other prospective franchise
707 required monetary grants related to public, educational, or
708 governmental access facilities equipment and capital costs.
709 Prospective lump-sum payments shall be made on an equivalent
710 per-subscriber basis calculated as follows: the amount of the
711 prospective funding obligations divided by the number of
712 subscribers being served by the incumbent cable service provider
713 at the time of payment, divided by the number of months
714 remaining in the incumbent cable or video service provider’s
715 franchise equals the monthly per subscriber amount to be paid by
716 the certificateholder until the expiration or termination of the
717 incumbent cable or video service provider’s franchise; and
718 2. If the incumbent cable or video service provider is
719 required to make payments for the funding of an institutional
720 network, the certificateholder shall pay an amount equal to the
721 incumbent’s funding obligations but not to exceed 1 percent of
722 the sales price, as defined in s. 202.11(15) 202.11(13), for the
723 taxable monthly retail sales of cable or video programming
724 services the certificateholder received from subscribers in the
725 affected municipality or county. All definitions and exemptions
726 under chapter 202 apply in the determination of taxable monthly
727 retail sales of cable or video programming services.
728 Section 15. Section 624.105, Florida Statutes, is amended
729 to read:
730 624.105 Waiver of customer liability.—Any regulated company
731 as defined in s. 350.111, any electric utility as defined in s.
732 366.02(2), any utility as defined in s. 367.021(12) or s.
733 367.022(2) and (7), and any provider of communications services
734 as defined in s. 202.11(1) 202.11(2) may charge for and include
735 an optional waiver of liability provision in their customer
736 contracts under which the entity agrees to waive all or a
737 portion of the customer’s liability for service from the entity
738 for a defined period in the event of the customer’s call to
739 active military service, death, disability, involuntary
740 unemployment, qualification for family leave, or similar
741 qualifying event or condition. Such provisions may not be
742 effective in the customer’s contract with the entity unless
743 affirmatively elected by the customer. No such provision shall
744 constitute insurance so long as the provision is a contract
745 between the entity and its customer.
746 Section 16. The following changes made in this act are
747 intended to be remedial in nature and apply retroactively, but
748 do not provide a basis for an assessment of any tax not paid or
749 create a right to a refund or credit of any tax paid before the
750 general effective date of this act:
751 (1) The changes made in section 2 of this act to
752 subsections renumbered as subsections (9), (11), and (15) of s.
753 202.11, Florida Statutes;
754 (2) The changes made in section 8 of this act to s. 202.22,
755 Florida Statutes; and
756 (3) The changes made in section 13 of this act to paragraph
757 (e) of subsection (1) of s. 212.05, Florida Statutes.
758 Section 17. This act shall take effect July 1, 2012.
759
760 ================= T I T L E A M E N D M E N T ================
761 And the title is amended as follows:
762 Delete everything before the enacting clause
763 and insert:
764 A bill to be entitled
765 An act relating to communications services taxes;
766 amending s. 202.105, F.S.; revising legislative
767 intent; amending s. 202.11, F.S.; modifying
768 definitions; removing the definition of the term
769 “cable service”; adding definitions for the terms
770 “digital good,” “digital service,” “Internet access
771 service,” and “video service”; amending ss. 202.125,
772 202.16, 202.20, and 202.24, F.S.; conforming
773 provisions to changes in terminology; amending s.
774 202.18, F.S.; removing a cross-reference to conform;
775 amending s. 202.195, F.S.; clarifying provisions
776 exempting from the public records law certain
777 proprietary confidential business information held by
778 a local governmental entity for the purpose of
779 assessing the local communications services tax;
780 amending s. 202.22, F.S.; revising provisions relating
781 to a communications services dealer’s liability for
782 tax underpayments that result from the incorrect
783 assignment of service addresses to local taxing
784 jurisdictions and providing requirements and
785 conditions with respect thereto; prohibiting the
786 Department of Revenue from denying a dealer of
787 communications services a deduction of a specified
788 amount as a collection allowance under certain
789 circumstances; amending s. 202.231, F.S.; requiring
790 the Department of Revenue to aggregate monthly and
791 make available to the public on a jurisdiction-by
792 jurisdiction basis certain sales and net tax
793 information; amending s. 202.26, F.S.; conforming a
794 cross-reference; amending s. 212.05, F.S.; revising
795 the definition of the term “prepaid calling
796 arrangement”; amending ss. 203.01, 610.118, and
797 624.105, F.S.; conforming cross-references; providing
798 for certain retroactive effect; providing an effective
799 date.