HB 163

1
A bill to be entitled
2An act relating to prepaid wireless telecommunications
3service; amending s. 365.172, F.S.; revising the
4definition of the term "fee"; removing the definition of
5the term "prepaid calling arrangements" and defining the
6term "prepaid wireless telecommunications service";
7revising powers and duties of the Technology Program
8within the Department of Management Services and the E911
9Board to include receiving and managing funds received
10from a fee imposed on prepaid wireless telecommunications
11service; providing that provisions for an E911 fee do not
12apply to such prepaid service; removing provisions for a
13study of the feasibility of collecting a fee for such
14service; providing definitions; imposing a prepaid
15wireless E911 fee on each retail transaction in this state
16for prepaid wireless telecommunications service; providing
17for adjustment of the fee when the E911 fee is changed;
18requiring the Department of Revenue to notify the public
19of any adjustment to the fee; providing for described
20retail transactions to be treated as occurring in this
21state; providing that the fee is a liability of the
22consumer; providing for collection of the fee by the
23seller from the consumer; providing for a statement of the
24fee to be made by the seller to the consumer; directing
25the department to establish procedures for a seller to
26document that a sale is not a retail transaction;
27providing for the seller to retain a certain amount of the
28fees collected and remit the remaining funds to the
29department pursuant to specified provisions; directing the
30department to establish registration and payment
31procedures; providing for audit and appeal procedures;
32providing for distribution and use of the fees collected;
33providing that the fee shall not be included in the base
34for measuring any tax, fee, surcharge, or other charge by
35the state or any governmental agency; prohibiting a local
36governmental agency from levying the fee or an additional
37fee on providers and sellers of prepaid wireless
38telecommunication service for the provision of E911
39service; limiting providers' and sellers' liability for
40damages in connection with provision of 911 or E911
41service; limiting providers' and sellers' liability for
42damages for providing assistance to an investigative or
43law enforcement officer; amending s. 365.173, F.S.;
44conforming cross-references; providing an effective date.
45
46Be It Enacted by the Legislature of the State of Florida:
47
48     Section 1.  Paragraphs (b), (k), and (v) of subsection (3),
49subsection (4), paragraph (a) of subsection (5), and subsection
50(8) of section 365.172, Florida Statutes, are amended,
51subsections (9) through (14) are renumbered as subsections (10)
52through (15), respectively, and a new subsection (9) is added to
53that section, to read:
54     365.172  Emergency communications number "E911."--
55     (3)  DEFINITIONS.--Only as used in this section and ss.
56365.171, 365.173, and 365.174, the term:
57     (b)  "Authorized expenditures" means expenditures of the
58fee, as specified in subsection (10) (9).
59     (k)  "Fee" means the E911 fee authorized and imposed under
60subsection (8) and the prepaid wireless E911 fee authorized and
61imposed under subsection (9).
62     (v)  "Prepaid wireless telecommunications service calling
63arrangements" means a wireless service that allows a caller to
64dial 911 to access the 911 system, which service must be paid
65for in advance and is sold in predetermined units or dollars of
66which the number declines with use in a known amount has the
67same meaning as defined in s. 212.05(1)(e).
68     (4)  POWERS AND DUTIES OF THE OFFICE.--The office shall
69oversee the administration of the fee authorized and imposed on
70subscribers of voice communications services under subsection
71(8) and shall receive and manage funds transferred by the
72Department of Revenue from the fee authorized and imposed on
73prepaid wireless telecommunications service under subsection
74(9).
75     (5)  THE E911 BOARD.--
76     (a)  The E911 Board is established to administer, with
77oversight by the office, the fee imposed under subsection (8),
78including receiving revenues derived from the fee and receiving
79revenues transferred by the Department of Revenue from the fee
80imposed under subsection (9); distributing portions of the
81revenues to wireless providers, counties, and the office;
82accounting for receipts, distributions, and income derived by
83the funds maintained in the fund; and providing annual reports
84to the Governor and the Legislature for submission by the office
85on amounts collected and expended, the purposes for which
86expenditures have been made, and the status of E911 service in
87this state. In order to advise and assist the office in carrying
88out the purposes of this section, the board, which shall have
89the power of a body corporate, has the powers enumerated in
90subsection (6).
91     (8)  E911 FEE.--
92     (a)  Each voice communications services provider shall
93collect the fee described in this subsection. The fee shall not
94be assessed on any pay telephone in the state. This subsection
95and the fee imposed under this subsection do not apply to
96prepaid wireless telecommunications service. Each provider, as
97part of its monthly billing process, shall bill the fee as
98follows:. The fee shall not be assessed on any pay telephone in
99the state.
100     1.  Each local exchange carrier shall bill the fee to the
101local exchange subscribers on a service-identifier basis, up to
102a maximum of 25 access lines per account bill rendered.
103     2.  Except in the case of prepaid wireless
104telecommunications service, each wireless provider shall bill
105the fee to a subscriber on a per-service-identifier basis for
106service identifiers whose primary place of use is within this
107state. Before July 1, 2009, the fee shall not be assessed on or
108collected from a provider with respect to an end user's service
109if that end user's service is a prepaid calling arrangement that
110is subject to s. 212.05(1)(e).
111     a.  The board shall conduct a study to determine whether it
112is feasible to collect E911 fees from the sale of prepaid
113wireless service. If, based on the findings of the study, the
114board determines that a fee should not be collected from the
115sale of prepaid wireless service, it shall report its findings
116and recommendation to the Governor, the President of the Senate,
117and the Speaker of the House of Representatives by December 31,
1182008. If the board determines that a fee should be collected
119from the sale of prepaid wireless service, the board shall
120collect the fee beginning July 1, 2009.
121     b.  For purposes of this section, the term:
122     (I)  "Prepaid wireless service" means the right to access
123telecommunications services that must be paid for in advance and
124is sold in predetermined units or dollars enabling the
125originator to make calls such that the number of units or
126dollars declines with use in a known amount.
127     (II)  "Prepaid wireless service providers" includes those
128persons who sell prepaid wireless service regardless of its
129form, either as a retailer or reseller.
130     c.  The study must include an evaluation of methods by
131which E911 fees may be collected from end users and purchasers
132of prepaid wireless service on an equitable, efficient,
133competitively neutral, and nondiscriminatory basis and must
134consider whether the collection of fees on prepaid wireless
135service would constitute an efficient use of public funds given
136the technological and practical considerations of collecting the
137fee based on the varying methodologies prepaid wireless service
138providers and their agents use in marketing prepaid wireless
139service.
140     d.  The study must include a review and evaluation of the
141collection of E911 fees on prepaid wireless service at the point
142of sale within the state. This evaluation must be consistent
143with the collection principles of end user charges such as those
144in s. 212.05(1)(e).
145     e.  No later than 90 days after this section becomes law,
146the board shall require all prepaid wireless service providers,
147including resellers, to provide the board with information that
148the board determines is necessary to discharge its duties under
149this section, including information necessary for its
150recommendation, such as total retail and reseller prepaid
151wireless service sales.
152     f.  All subscriber information provided by a prepaid
153wireless service provider in response to a request from the
154board while conducting this study is subject to s. 365.174.
155     g.  The study shall be conducted by an entity competent and
156knowledgeable in matters of state taxation policy if the board
157does not possess that expertise. The study must be paid from the
158moneys distributed to the board for administrative purposes
159under s. 365.173(2)(f) but may not exceed $250,000.
160     3.  Except in the case of prepaid wireless
161telecommunications service, all voice communications services
162providers not addressed under subparagraphs 1. and 2. shall bill
163the fee on a per-service-identifier basis for service
164identifiers whose primary place of use is within the state up to
165a maximum of 25 service identifiers for each account bill
166rendered.
167     4.  The provider may list the fee as a separate entry on
168each bill, in which case the fee must be identified as a fee for
169E911 services. A provider shall remit the fee to the board only
170if the fee is paid by the subscriber. If a provider receives a
171partial payment for a monthly bill from a subscriber, the amount
172received shall first be applied to the payment due the provider
173for providing voice communications service.
174     (b)  A provider is not obligated to take any legal action
175to enforce collection of the fees for which any subscriber is
176billed. A county subscribing to 911 service remains liable to
177the provider delivering the 911 service or equipment for any 911
178service, equipment, operation, or maintenance charge owed by the
179county to the provider.
180     (c)  For purposes of this section, the state and local
181governments are not subscribers.
182     (d)  Each provider may retain 1 percent of the amount of
183the fees collected as reimbursement for the administrative costs
184incurred by the provider to bill, collect, and remit the fee.
185The remainder shall be delivered to the board and deposited by
186the board into the fund. The board shall distribute the
187remainder pursuant to s. 365.173.
188     (e)  Effective September 1, 2007, voice communications
189services providers billing the fee to subscribers shall deliver
190revenues from the fee to the board within 60 days after the end
191of the month in which the fee was billed, together with a
192monthly report of the number of service identifiers in each
193county. Each wireless provider and other applicable provider
194identified in subparagraph (a)3. shall report the number of
195service identifiers for subscribers whose place of primary use
196is in each county. All provider subscriber information provided
197to the board is subject to s. 365.174. If a provider chooses to
198remit any fee amounts to the board before they are paid by the
199subscribers, a provider may apply to the board for a refund of,
200or may take a credit for, any such fees remitted to the board
201which are not collected by the provider within 6 months
202following the month in which the fees are charged off for
203federal income tax purposes as bad debt.
204     (f)  The rate of the fee shall be set by the board after
205considering the factors set forth in paragraphs (h) and (i), but
206may not exceed 50 cents per month per each service identifier.
207The fee shall apply uniformly and be imposed throughout the
208state, except for those counties that, before July 1, 2007, had
209adopted an ordinance or resolution establishing a fee less than
21050 cents per month per access line. In those counties the fee
211established by ordinance may be changed only to the uniform
212statewide rate no sooner than 30 days after notification is made
213by the county's board of county commissioners to the board.
214     (g)  It is the intent of the Legislature that all revenue
215from the fee be used as specified in s. 365.173(2)(a)-(i).
216     (h)  No later than November 1, 2007, the board may adjust
217the allocation percentages for distribution of the fund as
218provided in s. 365.173. When setting the percentages and
219contemplating any adjustments to the fee, the board shall
220consider the following:
221     1.  The revenues currently allocated for wireless service
222provider costs for implementing E911 service and projected costs
223for implementing E911 service, including recurring costs for
224Phase I and Phase II and the effect of new technologies;
225     2.  The appropriate level of funding needed to fund the
226rural grant program provided for in s. 365.173(2)(g); and
227     3.  The need to fund statewide, regional, and county grants
228in accordance with sub-subparagraph (6)(a)3.b.
229     (i)  The board may adjust the allocation percentages or
230adjust the amount of the fee, or both, if necessary to ensure
231full cost recovery or prevent overrecovery of costs incurred in
232the provision of E911 service, including costs incurred or
233projected to be incurred to comply with the order. Any new
234allocation percentages or reduced or increased fee may not be
235adjusted for 1 year. The fee may not exceed 50 cents per month
236per each service identifier. The board-established fee, and any
237board adjustment of the fee, shall be uniform throughout the
238state, except for the counties identified in paragraph (f). No
239less than 90 days before the effective date of any adjustment to
240the fee, the board shall provide written notice of the adjusted
241fee amount and effective date to each voice communications
242services provider from which the board is then receiving the
243fee.
244     (j)  State and local taxes do not apply to the fee.
245     (k)  A local government may not levy the fee or any
246additional fee on providers or subscribers for the provision of
247E911 service.
248     (l)  For purposes of this section, the definitions
249contained in s. 202.11 and the provisions of s. 202.155 apply in
250the same manner and to the same extent as the definitions and
251provisions apply to the taxes levied under chapter 202 on mobile
252communications services.
253     (9)  PREPAID WIRELESS TELECOMMUNICATIONS SERVICE.--
254     (a)  As used in this subsection, the term:
255     1.  "Consumer" means a person who purchases prepaid
256wireless telecommunications service in a retail sale.
257     2.  "Prepaid wireless E911 fee" means the fee that is
258required to be collected by a seller from a consumer in the
259amount established under paragraph (b).
260     3.  "Provider" means a person who provides prepaid wireless
261telecommunications service pursuant to a license issued by the
262Federal Communications Commission.
263     4.  "Retail transaction" means the purchase of prepaid
264wireless telecommunications service from a seller for any
265purpose other than resale.
266     5.  "Seller" means a person who sells prepaid wireless
267telecommunications service to another person.
268     6.  "Wireless telecommunications service" means commercial
269mobile radio service as defined by 47 C.F.R. s. 20.3, as
270amended.
271     (b)1.a.  There is imposed a prepaid wireless E911 fee at a
272rate of 1 percent of each retail transaction occurring in this
273state.
274     b.  The prepaid wireless E911 fee imposed under sub-
275subparagraph a. shall be increased or reduced, as applicable,
276upon any change to the E911 fee imposed under subsection (8).
277The adjusted rate shall be determined by dividing the amount of
278the charge imposed under subsection (8) by $50. Such increase or
279reduction shall be effective on the effective date of the change
280to the E911 fee or, if later, the first day of the first
281calendar month to occur at least 60 days after the enactment of
282such change or notification of a change in the E911 fee as
283provided in paragraph (8)(f). The Department of Revenue shall
284provide not less than 30 days' notice of such increase or
285reduction on its public website.
286     c.  For purposes of this subsection, a retail transaction
287that is effected in person by a consumer at a business location
288of the seller shall be treated as occurring in this state if
289that business location is in this state, and any other retail
290transaction shall be treated as occurring in this state if the
291retail transaction is treated as occurring in this state under
292s. 212.05(1)(e)1.a.(II).
293     2.  The prepaid wireless E911 fee is the liability of the
294consumer and not the seller or any provider.
295     3.  The prepaid wireless E911 fee shall be collected by the
296seller from the consumer with respect to each retail transaction
297occurring in this state. The amount of the fee shall be
298separately stated on an invoice, receipt, or other similar
299document that is provided to the consumer by the seller or shall
300otherwise be disclosed to the consumer.
301     4.  The Department of Revenue shall establish procedures
302for a seller of prepaid wireless telecommunications service to
303document that a sale is not a retail transaction, which
304procedures shall substantially coincide with the procedures for
305documenting a sale for resale transaction under s. 212.186.
306     5.a.  The seller shall remit to the Department of Revenue
307all prepaid wireless E911 fees collected under this subsection,
308including all such charges that the seller is deemed to have
309collected when the amount of the charge was not separately
310stated on an invoice, receipt, or other similar document
311provided to the consumer by the seller, except that the seller
312shall deduct and retain 3 percent of the fees collected.
313     b.  The seller shall remit the fees collected to the
314Department of Revenue at the times and in the manner provided
315under s. 212.11. The Department of Revenue shall establish
316registration and payment procedures that substantially coincide
317with the registration and payment procedures that apply to the
318tax imposed under chapter 212.
319     c.  The audit and appeal procedures applicable under s.
320212.13 apply to prepaid wireless E911 fees.
321     6.  The Department of Revenue shall retain up to 2 percent
322of the funds remitted under this subsection to reimburse its
323direct costs of administering the collection and remittance of
324prepaid wireless E911 fees. Thereafter, the department shall
325transfer all remaining funds remitted under this subsection to
326the E911 Board within 30 days after receipt for use as provided
327in subsection (5).
328     7.  The amount of the prepaid wireless E911 fee that is
329collected by a seller from a consumer, regardless of whether
330such amount is separately stated on an invoice, receipt, or
331similar document provided to the consumer by the seller, shall
332not be included in the base for measuring any tax, fee,
333surcharge, or other charge that is imposed by this state, any
334political subdivision of this state, or any governmental agency.
335     8.  A local government may not levy the fee or any
336additional fee on providers or sellers of prepaid wireless
337telecommunications service for the provision of E911 service.
338     (c)1.  A provider or seller of prepaid wireless
339telecommunications service shall not be liable for damages to
340any person resulting from or incurred in connection with the
341provision of, or failure to provide, 911 or E911 service or for
342identifying, or failing to identify, the telephone number,
343address, location, or name associated with any person or device
344that is accessing or attempting to access 911 or E911 service.
345     2.  A provider or seller of prepaid wireless
346telecommunications service shall not be liable for damages to
347any person resulting from or incurred in connection with the
348provision of any assistance provided by legal process to any
349investigative or law enforcement officer of the United States,
350this or any other state, or any political subdivision of this or
351any other state in connection with any investigation or other
352law enforcement activity by such investigative or law
353enforcement officer.
354     Section 2.  Paragraphs (a), (b), and (c) of subsection (2)
355of section 365.173, Florida Statutes, are amended to read:
356     365.173  Emergency Communications Number E911 System
357Fund.--
358     (2)  As determined by the board pursuant to s.
359365.172(8)(h), and subject to any modifications approved by the
360board pursuant to s. 365.172(6)(a)3. or (8)(i), the moneys in
361the fund shall be distributed and used only as follows:
362     (a)  Sixty-seven percent of the moneys in the wireless
363category shall be distributed each month to counties, based on
364the total number of service identifiers in each county, and
365shall be used exclusively for payment of:
366     1.  Authorized expenditures, as specified in s.
367365.172(10)(9).
368     2.  Costs to comply with the requirements for E911 service
369contained in the order and any future rules related to the
370order.
371     (b)  Ninety-seven percent of the moneys in the nonwireless
372category shall be distributed each month to counties based on
373the total number of service identifiers in each county and shall
374be used exclusively for payment of authorized expenditures, as
375specified in s. 365.172(10)(9).
376     (c)  Any county that receives funds under paragraphs (a)
377and (b) shall establish a fund to be used exclusively for the
378receipt and expenditure of the revenues collected under
379paragraphs (a) and (b). All fees placed in the fund and any
380interest accrued shall be used solely for costs described in
381subparagraphs (a)1. and 2. The money collected and interest
382earned in this fund shall be appropriated for these purposes by
383the county commissioners and incorporated into the annual county
384budget. The fund shall be included within the financial audit
385performed in accordance with s. 218.39. A county may carry
386forward up to 20 percent of the total funds disbursed to the
387county by the board during a calendar year for expenditures for
388capital outlay, capital improvements, or equipment replacement,
389if such expenditures are made for the purposes specified in
390subparagraphs (a)1. and 2.; however, the 20-percent limitation
391does not apply to funds disbursed to a county under s.
392365.172(6)(a)3., and a county may carry forward any percentage
393of the funds, except that any grant provided shall continue to
394be subject to any condition imposed by the board. In order to
395prevent an excess recovery of costs incurred in providing E911
396service, a county that receives funds greater than the
397permissible E911 costs described in s. 365.172(10)(9), including
398the 20 percent carryforward allowance, must return the excess
399funds to the E911 board to be allocated under s. 365.172(6)(a).
400
401The Legislature recognizes that the fee authorized under s.
402365.172 may not necessarily provide the total funding required
403for establishing or providing the E911 service. It is the intent
404of the Legislature that all revenue from the fee be used as
405specified in this subsection.
406     Section 3.  This act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.