Senate Bill sb2070
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
By Senator Constantine
22-1208A-05
1 A bill to be entitled
2 An act relating to the tax on substitute
3 communications systems; amending s. 202.11,
4 F.S.; deleting certain definitions; amending s.
5 202.12, F.S.; deleting a provision relating to
6 the manner in which the tax on gross receipts
7 for communications services is applied to a
8 substitute communications system; amending ss.
9 202.16, 202.17, and 202.18, F.S.; conforming
10 cross-references; repealing s. 202.19(7), F.S.,
11 relating to imposing a local communications
12 services tax on substitute communications
13 systems; amending s. 203.01, F.S.; deleting a
14 provision imposing a gross receipts tax on the
15 actual costs of operating substitute
16 communications systems; amending s. 624.105,
17 F.S.; conforming a cross-reference; specifying
18 that the retroactive operation is remedial and
19 does not create any right to or require any
20 refunds; repealing s. 202.15, F.S., relating to
21 special rules for users of substitute
22 communications systems; providing an effective
23 date.
24
25 Be It Enacted by the Legislature of the State of Florida:
26
27 Section 1. Section 202.11, Florida Statutes, is
28 amended to read:
29 202.11 Definitions.--As used in this chapter:
30 (1) "Actual cost of operating a substitute
31 communications system" includes, but is not limited to,
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 depreciation, interest, maintenance, repair, and other
2 expenses directly attributable to the operation of such
3 system. For purposes of this chapter, the depreciation expense
4 included in actual cost is the depreciation expense claimed
5 for federal income tax purposes. The total amount of any
6 payment required by a lease or rental contract or agreement
7 must be included within the actual cost of operating the
8 substitute communications system.
9 (1)(2) "Cable service" means the transmission of
10 video, audio, or other programming service to purchasers, and
11 the purchaser interaction, if any, required for the selection
12 or use of any such programming service, regardless of whether
13 the programming is transmitted over facilities owned or
14 operated by the cable service provider or over facilities
15 owned or operated by one or more other dealers of
16 communications services. The term includes point-to-point and
17 point-to-multipoint distribution services by which programming
18 is transmitted or broadcast by microwave or other equipment
19 directly to the purchaser's premises, but does not include
20 direct-to-home satellite service. The term includes basic,
21 extended, premium, pay-per-view, digital, and music services.
22 (2)(3) "Communications services" means the
23 transmission, conveyance, or routing of voice, data, audio,
24 video, or any other information or signals, including cable
25 services, to a point, or between or among points, by or
26 through any electronic, radio, satellite, cable, optical,
27 microwave, or other medium or method now in existence or
28 hereafter devised, regardless of the protocol used for the
29 such transmission or conveyance. The term does not include:
30 (a) Information services.
31
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 (b) Installation or maintenance of wiring or equipment
2 on a customer's premises.
3 (c) The sale or rental of tangible personal property.
4 (d) The sale of advertising, including, but not
5 limited to, directory advertising.
6 (e) Bad check charges.
7 (f) Late payment charges.
8 (g) Billing and collection services.
9 (h) Internet access service, electronic mail service,
10 electronic bulletin board service, or similar on-line computer
11 services.
12 (3)(4) "Dealer" means a person registered with the
13 department as a provider of communications services in this
14 state.
15 (4)(5) "Department" means the Department of Revenue.
16 (5)(6) "Direct-to-home satellite service" has the
17 meaning ascribed in the Communications Act of 1934, 47 U.S.C.
18 s. 303(v).
19 (6)(7) "Information service" means the offering of a
20 capability for generating, acquiring, storing, transforming,
21 processing, retrieving, using, or making available information
22 via communications services, including, but not limited to,
23 electronic publishing, web-hosting service, and end-user 900
24 number service. The term does not include any video, audio, or
25 other programming service that uses point-to-multipoint
26 distribution by which programming is delivered, transmitted,
27 or broadcast by any means, including any interaction that may
28 be necessary for selecting and using the service, regardless
29 of whether the programming is delivered, transmitted, or
30 broadcast over facilities owned or operated by the seller or
31 another, or whether denominated as cable service or as basic,
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 extended, premium, pay-per-view, digital, music, or two-way
2 cable service.
3 (7)(8) "Mobile communications service" means
4 commercial mobile radio service, as defined in 47 C.F.R. s.
5 20.3 as in effect on June 1, 1999. The term does not include
6 air-ground radiotelephone service as defined in 47 C.F.R. s.
7 22.99 as in effect on June 1, 1999.
8 (8)(9) "Person" has the meaning ascribed in s. 212.02.
9 (9)(10) "Prepaid calling arrangement" means the
10 separately stated retail sale by advance payment of
11 communications services that consist exclusively of telephone
12 calls originated by using an access number, authorization
13 code, or other means that may be manually, electronically, or
14 otherwise entered, and that are sold in predetermined units or
15 dollars of which the number declines with use in a known
16 amount.
17 (10)(11) "Purchaser" means the person paying for or
18 obligated to pay for communications services.
19 (11)(12) "Retail sale" means the sale of
20 communications services for any purpose other than for resale
21 or for use as a component part of or for integration into
22 communications services to be resold in the ordinary course of
23 business. However, any sale for resale must comply with s.
24 202.16(2) and the rules adopted thereunder.
25 (12)(13) "Sale" means the provision of communications
26 services for a consideration.
27 (13)(14) "Sales price" means the total amount charged
28 in money or other consideration by a dealer for the sale of
29 the right or privilege of using communications services in
30 this state, including any property or other services that are
31 part of the sale. The sales price of communications services
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 may shall not be reduced by any separately identified
2 components of the charge that constitute expenses of the
3 dealer, including, but not limited to, sales taxes on goods or
4 services purchased by the dealer, property taxes, taxes
5 measured by net income, and universal-service fund fees.
6 (a) The sales price of communications services shall
7 include, whether or not separately stated, charges for any of
8 the following:
9 1. The connection, movement, change, or termination of
10 communications services.
11 2. The detailed billing of communications services.
12 3. The sale of directory listings in connection with a
13 communications service.
14 4. Central office and custom calling features.
15 5. Voice mail and other messaging service.
16 6. Directory assistance.
17 7. The service of sending or receiving a document
18 commonly referred to as a facsimile or "fax," except when
19 performed during the course of providing professional or
20 advertising services.
21 (b) The sales price of communications services does
22 not include charges for any of the following:
23 1. Any excise tax, sales tax, or similar tax levied by
24 the United States or any state or local government on the
25 purchase, sale, use, or consumption of any communications
26 service, including, but not limited to, any tax imposed under
27 this chapter or chapter 203 which is permitted or required to
28 be added to the sales price of such service, if the tax is
29 stated separately.
30 2. Any fee or assessment levied by the United States
31 or any state or local government, including, but not limited
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 to, regulatory fees and emergency telephone surcharges, which
2 is required to be added to the price of such service if the
3 fee or assessment is separately stated.
4 3. Communications services paid for by inserting coins
5 into coin-operated communications devices available to the
6 public.
7 4. The sale or recharge of a prepaid calling
8 arrangement.
9 5. The provision of air-to-ground communications
10 services, defined as a radio service provided to purchasers
11 while on board an aircraft.
12 6. A dealer's internal use of communications services
13 in connection with its business of providing communications
14 services.
15 7. Charges for property or other services that are not
16 part of the sale of communications services, if such charges
17 are stated separately from the charges for communications
18 services.
19 (14)(15) "Service address" means:
20 (a) Except as otherwise provided in this section, the
21 location of the communications equipment from which
22 communications services originate or at which communications
23 services are received by the customer. In the case of a
24 communications service paid through a credit or payment
25 mechanism that does not relate to a service address, such as a
26 bank, travel, debit, or credit card, and in the case of
27 third-number and calling-card calls, the service address is
28 the address of the central office, as determined by the area
29 code and the first three digits of the seven-digit originating
30 telephone number.
31
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 (b) In the case of cable services and direct-to-home
2 satellite services, the location where the customer receives
3 the services in this state.
4 (c) In the case of mobile communications services, the
5 customer's place of primary use.
6 (16) "Substitute communications system" means any
7 telephone system, or other system capable of providing
8 communications services, which a person purchases, installs,
9 rents, or leases for his or her own use to provide himself or
10 herself with services used as a substitute for any switched
11 service or dedicated facility by which a dealer of
12 communications services provides a communication path.
13 (15)(17) "Unbundled network element" means a network
14 element, as defined in 47 U.S.C. s. 153(29), to which access
15 is provided on an unbundled basis under pursuant to 47 U.S.C.
16 s. 251(c)(3).
17 (16)(18) "Private communications service" means a
18 communications service that entitles the subscriber or user to
19 exclusive or priority use of a communications channel or group
20 of channels between or among channel termination points,
21 regardless of the manner in which the such channel or channels
22 are connected, and includes switching capacity, extension
23 lines, stations, and any other associated services which are
24 provided in connection with the use of such channel or
25 channels.
26 (17)(19)(a) "Customer" means:
27 1. The person or entity that contracts with the home
28 service provider for mobile communications services; or
29 2. If the end user of mobile communications services
30 is not the contracting party, the end user of the mobile
31
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 communications service. This subparagraph only applies for the
2 purpose of determining the place of primary use.
3 (b) "Customer" does not include:
4 1. A reseller of mobile communications services; or
5 2. A serving carrier under an agreement to serve the
6 customer outside the home service provider's licensed service
7 area.
8 (18)(20) "Enhanced zip code" means a United States
9 postal zip code of 9 or more digits.
10 (19)(21) "Home service provider" means the
11 facilities-based carrier or reseller with which the customer
12 contracts for the provision of mobile communications services.
13 (20)(22) "Licensed service area" means the geographic
14 area in which the home service provider is authorized by law
15 or contract to provide mobile communications service to the
16 customer.
17 (21)(23) "Place of primary use" means the street
18 address representative of where the customer's use of the
19 mobile communications service primarily occurs, which must be:
20 (a) The residential street address or the primary
21 business street address of the customer; and
22 (b) Within the licensed service area of the home
23 service provider.
24 (22)(24)(a) "Reseller" means a provider who purchases
25 communications services from another communications service
26 provider and then resells, uses as a component part of, or
27 integrates the purchased services into a mobile communications
28 service.
29 (b) "Reseller" does not include a serving carrier with
30 which a home service provider arranges for the services to its
31
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 customers outside the home service provider's licensed service
2 area.
3 (23)(25) "Serving carrier" means a facilities-based
4 carrier providing mobile communications service to a customer
5 outside a home service provider's or reseller's licensed
6 service area.
7 Section 2. Subsections (1) and (2) of section 202.12,
8 Florida Statutes, are amended to read:
9 202.12 Sales of communications services.--The
10 Legislature finds that every person who engages in the
11 business of selling communications services at retail in this
12 state is exercising a taxable privilege. It is the intent of
13 the Legislature that the tax imposed by chapter 203 be
14 administered as provided in this chapter.
15 (1) For the exercise of the such privilege, a tax is
16 levied on each taxable transaction, and the tax is due and
17 payable as follows:
18 (a) Except as otherwise provided in this subsection,
19 at a rate of 6.8 percent applied to the sales price of the
20 communications service which:
21 1. Originates and terminates in this state, or
22 2. Originates or terminates in this state and is
23 charged to a service address in this state,
24
25 when sold at retail, computed on each taxable sale for the
26 purpose of remitting the tax due. The gross receipts tax
27 imposed by chapter 203 shall be collected on the same taxable
28 transactions and remitted with the tax imposed by this
29 paragraph. If no tax is imposed by this paragraph by reason of
30 s. 202.125(1), the tax imposed by chapter 203 shall
31 nevertheless be collected and remitted in the manner and at
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 the time prescribed for tax collections and remittances under
2 this chapter.
3 (b) At the rate set forth in paragraph (a) on the
4 actual cost of operating a substitute communications system,
5 to be paid in accordance with s. 202.15. This paragraph does
6 not apply to the use by any dealer of his or her own
7 communications system to conduct a business of providing
8 communications services or any communications system operated
9 by a county, a municipality, the state, or any political
10 subdivision of the state. The gross receipts tax imposed by
11 chapter 203 shall be applied to the same costs, and remitted
12 with the tax imposed by this paragraph.
13 (b)(c) At the rate of 10.8 percent on the retail sales
14 price of any direct-to-home satellite service received in this
15 state. The proceeds of the tax imposed under this paragraph
16 shall be accounted for and distributed in accordance with s.
17 202.18(2). The gross receipts tax imposed by chapter 203 shall
18 be collected on the same taxable transactions and remitted
19 with the tax imposed by this paragraph.
20 (c)(d) At the rate set forth in paragraph (a) on the
21 sales price of private communications services provided within
22 this state, which shall be determined in accordance with the
23 following provisions:
24 1. Any charge with respect to a channel termination
25 point located within this state;
26 2. Any charge for the use of a channel between two
27 channel termination points located in this state; and
28 3. Where channel termination points are located both
29 within and outside of this state:
30
31
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 a. If any segment between two such channel termination
2 points is separately billed, 50 percent of the such charge;
3 and
4 b. If any segment of the circuit is not separately
5 billed, an amount equal to the total charge for such circuit
6 multiplied by a fraction, the numerator of which is the number
7 of channel termination points within this state and the
8 denominator of which is the total number of channel
9 termination points of the circuit.
10
11 The gross receipts tax imposed by chapter 203 shall be
12 collected on the same taxable transactions and remitted with
13 the tax imposed by this paragraph.
14 (d)(e) At the rate set forth in paragraph (a) applied
15 to the sales price of all mobile communications services
16 deemed to be provided to a customer by a home service provider
17 under pursuant to s. 117(a) of the Mobile Telecommunications
18 Sourcing Act, Pub. L. No. 106-252, if the such customer's
19 service address is located within this state.
20 (2) A dealer of taxable communications services shall
21 bill, collect, and remit the taxes on communications services
22 imposed under pursuant to chapter 203 and this section at a
23 combined rate that is the sum of the rate of tax on
24 communications services prescribed in chapter 203 and the
25 applicable rate of tax prescribed in this section. Each dealer
26 subject to the tax provided in paragraph (1)(b) shall also
27 remit the taxes imposed pursuant to chapter 203 and this
28 section on a combined basis. However, a dealer shall, in
29 reporting each remittance to the department, identify the
30 portion thereof which consists of taxes remitted under
31
11
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 pursuant to chapter 203. Return forms prescribed by the
2 department shall facilitate the such reporting.
3 Section 3. Paragraph (a) of subsection (1) of section
4 202.16, Florida Statutes, is amended to read:
5 202.16 Payment.--The taxes imposed or administered
6 under this chapter and chapter 203 shall be collected from all
7 dealers of taxable communications services on the sale at
8 retail in this state of communications services taxable under
9 this chapter and chapter 203. The full amount of the taxes on
10 a credit sale, installment sale, or sale made on any kind of
11 deferred payment plan is due at the moment of the transaction
12 in the same manner as a cash sale.
13 (1)(a) Except as otherwise provided in ss.
14 202.12(1)(b) and 202.15, The taxes collected under this
15 chapter and chapter 203 shall be paid by the purchaser of the
16 communications service and shall be collected from the such
17 person by the dealer of communications services.
18 Section 4. Subsection (6) of section 202.17, Florida
19 Statutes, is amended to read:
20 202.17 Registration.--
21 (6) In addition to the certificate of registration,
22 the department shall provide to each newly registered dealer
23 an initial resale certificate that is valid for the remainder
24 of the period of issuance. The department shall provide to
25 each active dealer, except persons registered pursuant to s.
26 202.15, an annual resale certificate. As used in this section,
27 "active dealer" means a person who is registered with the
28 department and who is required to file a return at least once
29 during each applicable reporting period.
30 Section 5. Subsections (1) and (2) of section 202.18,
31 Florida Statutes, are amended to read:
12
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 202.18 Allocation and disposition of tax
2 proceeds.--The proceeds of the communications services taxes
3 remitted under this chapter shall be treated as follows:
4 (1) The proceeds of the taxes remitted under s.
5 202.12(1)(a) and (b) shall be divided as follows:
6 (a) The portion of the such proceeds which constitutes
7 gross receipts taxes, imposed at the rate prescribed in
8 chapter 203, shall be deposited as provided by law and in
9 accordance with s. 9, Art. XII of the State Constitution.
10 (b) The remaining portion shall be distributed
11 according to s. 212.20(6).
12 (2) The proceeds of the taxes remitted under s.
13 202.12(1)(b) s. 202.12(1)(c) shall be divided as follows:
14 (a) The portion of the such proceeds which constitutes
15 gross receipts taxes, imposed at the rate prescribed in
16 chapter 203, shall be deposited as provided by law and in
17 accordance with s. 9, Art. XII of the State Constitution.
18 (b) Sixty-three percent of the remainder shall be
19 allocated to the state and distributed under pursuant to s.
20 212.20(6), except that the proceeds allocated under pursuant
21 to s. 212.20(6)(d)3. shall be prorated to the participating
22 counties in the same proportion as that month's collection of
23 the taxes and fees imposed under pursuant to chapter 212 and
24 paragraph (1)(b).
25 (c)1. During each calendar year, the remaining portion
26 of the such proceeds shall be transferred to the Local
27 Government Half-cent Sales Tax Clearing Trust Fund and shall
28 be allocated in the same proportion as the allocation of total
29 receipts of the half-cent sales tax under s. 218.61 and the
30 emergency distribution under s. 218.65 in the prior state
31 fiscal year.
13
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 2. The proportion of the proceeds allocated based on
2 the emergency distribution under s. 218.65 shall be
3 distributed under pursuant to s. 218.65.
4 3. In each calendar year, the proportion of the
5 proceeds allocated based on the half-cent sales tax under s.
6 218.61 shall be allocated to each county in the same
7 proportion as the county's percentage of total sales tax
8 allocation for the prior state fiscal year and distributed
9 under pursuant to s. 218.62.
10 4. The department shall distribute the appropriate
11 amount to each municipality and county each month at the same
12 time that local communications services taxes are distributed
13 under pursuant to subsection (3).
14 Section 6. Subsection (7) of section 202.19, Florida
15 Statutes, is repealed.
16 Section 7. Paragraph (a) of subsection (1) of section
17 203.01, Florida Statutes, is amended to read:
18 203.01 Tax on gross receipts for utility and
19 communications services.--
20 (1)(a)1. Every person who that receives payment for
21 any utility service shall report by the last day of each month
22 to the Department of Revenue, under oath of the secretary or
23 some other officer of the such person, the total amount of
24 gross receipts derived from business done within this state,
25 or between points within this state, for the preceding month
26 and, at the same time, shall pay into the State Treasury an
27 amount equal to a percentage of the such gross receipts at the
28 rate set forth in paragraph (b). The Such collections shall be
29 certified by the Chief Financial Officer upon the request of
30 the State Board of Education.
31
14
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 2. A tax is levied on communications services as
2 defined in s. 203.11(2) s. 202.11(3). The Such tax shall be
3 applied to the same services and transactions as are subject
4 to taxation under chapter 202, and to communications services
5 that are subject to the exemption provided in s. 202.125(1).
6 The Such tax shall be applied to the sales price of
7 communications services when sold at retail and to the actual
8 cost of operating substitute communications systems, as such
9 terms are defined in s. 202.11, shall be due and payable at
10 the same time as the taxes imposed under pursuant to chapter
11 202, and shall be administered and collected under pursuant to
12 the provisions of chapter 202.
13 Section 8. Section 624.105, Florida Statutes, is
14 amended to read:
15 624.105 Waiver of customer liability.--Any regulated
16 company as defined in s. 350.111, any electric utility as
17 defined in s. 366.02(2), any utility as defined in s.
18 367.021(12) or s. 367.022(2) and (7), and any provider of
19 communications services as defined in s. 202.11(2) s.
20 202.11(3) may charge for and include an optional waiver of
21 liability provision in their customer contracts under which
22 the entity agrees to waive all or a portion of the customer's
23 liability for service from the entity for a defined period in
24 the event of the customer's call to active military service,
25 death, disability, involuntary unemployment, qualification for
26 family leave, or similar qualifying event or condition. The
27 Such provisions may not be effective in the customer's
28 contract with the entity unless affirmatively elected by the
29 customer. A No such provision may not shall constitute
30 insurance so long as the provision is a contract between the
31 entity and its customer.
15
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2070
22-1208A-05
1 Section 9. The retroactive application of this act is
2 remedial in nature and may not be construed to create a right
3 to a refund or to require a refund by any governmental entity
4 of any tax, penalty, or interest remitted to the Department of
5 Revenue on substitute communications systems before the
6 effective date of this act.
7 Section 10. Section 202.15, Florida Statutes, is
8 repealed.
9 Section 11. This act shall take effect upon becoming a
10 law and shall apply retroactively to October 1, 2001.
11
12 *****************************************
13 SENATE SUMMARY
14 Deletes a provision relating to the manner in which the
tax on gross receipts for communications services is
15 applied to a substitute communications system. Repeals
the imposition of a local communications services tax on
16 substitute communications systems. Deletes a provision
imposing a gross receipts tax on the actual costs of
17 operating substitute communications systems. Specifies
that the retroactive operation of the act is remedial and
18 does not create any right to or require any refunds.
19
20
21
22
23
24
25
26
27
28
29
30
31
16
CODING: Words stricken are deletions; words underlined are additions.