Florida Senate - 2010 SB 1202
By Senator Bennett
21-00660-10 20101202__
1 A bill to be entitled
2 An act relating to prepaid wireless telecommunications
3 service; amending s. 365.172, F.S.; revising the
4 definition of the term “fee”; removing the definition
5 of the term “prepaid calling arrangements” and
6 defining the term “prepaid wireless telecommunications
7 service”; revising powers and duties of the Technology
8 Program within the Department of Management Services
9 and the E911 Board to include receiving and managing
10 funds received from a fee imposed on prepaid wireless
11 telecommunications service; providing that provisions
12 for an E911 fee do not apply to such prepaid service;
13 removing provisions for a study of the feasibility of
14 collecting a fee for such service; providing
15 definitions; imposing a prepaid wireless E911 fee on
16 each retail transaction in this state for prepaid
17 wireless telecommunications service; providing for
18 adjustment of the fee when the E911 fee is changed;
19 requiring the Department of Revenue to notify the
20 public of any adjustment to the fee; providing for
21 described retail transactions to be treated as
22 occurring in this state; providing that the fee is a
23 liability of the consumer; providing for collection of
24 the fee by the seller from the consumer; providing for
25 a statement of the fee to be made by the seller to the
26 consumer; directing the department to establish
27 procedures for a seller to document that a sale is not
28 a retail transaction; providing for the seller to
29 retain a certain amount of the fees collected and
30 remit the remaining funds to the department pursuant
31 to specified provisions; directing the department to
32 establish registration and payment procedures;
33 providing for audit and appeal procedures; providing
34 for distribution and use of the fees collected;
35 providing that the fee shall not be included in the
36 base for measuring any tax, fee, surcharge, or other
37 charge by the state or any governmental agency;
38 prohibiting a local governmental agency from levying
39 the fee or an additional fee on providers and sellers
40 of prepaid wireless telecommunication service for the
41 provision of E911 service; limiting providers’ and
42 sellers’ liability for damages in connection with
43 provision of 911 or E911 service; limiting providers’
44 and sellers’ liability for damages for providing
45 assistance to an investigative or law enforcement
46 officer; amending s. 365.173, F.S.; conforming cross
47 references; providing an effective date.
48
49 Be It Enacted by the Legislature of the State of Florida:
50
51 Section 1. Paragraphs (b), (k), and (v) of subsection (3),
52 subsection (4), paragraph (a) of subsection (5), and subsection
53 (8) of section 365.172, Florida Statutes, are amended,
54 subsections (9) through (14) are renumbered as subsections (10)
55 through (15), respectively, and a new subsection (9) is added to
56 that section, to read:
57 365.172 Emergency communications number “E911.”—
58 (3) DEFINITIONS.—Only as used in this section and ss.
59 365.171, 365.173, and 365.174, the term:
60 (b) “Authorized expenditures” means expenditures of the
61 fee, as specified in subsection (10) (9).
62 (k) “Fee” means the E911 fee authorized and imposed under
63 subsection (8) and the prepaid wireless E911 fee authorized and
64 imposed under subsection (9).
65 (v) “Prepaid wireless telecommunications service calling
66 arrangements” means a wireless service that allows a caller to
67 dial 911 to access the 911 system, which service must be paid
68 for in advance and is sold in predetermined units or dollars of
69 which the number declines with use in a known amount has the
70 same meaning as defined in s. 212.05(1)(e).
71 (4) POWERS AND DUTIES OF THE OFFICE.—The office shall
72 oversee the administration of the fee authorized and imposed on
73 subscribers of voice communications services under subsection
74 (8) and shall receive and manage funds transferred by the
75 Department of Revenue from the fee authorized and imposed on
76 prepaid wireless telecommunications service under subsection
77 (9).
78 (5) THE E911 BOARD.—
79 (a) The E911 Board is established to administer, with
80 oversight by the office, the fee imposed under subsection (8),
81 including receiving revenues derived from the fee and receiving
82 revenues transferred by the Department of Revenue from the fee
83 imposed under subsection (9); distributing portions of the
84 revenues to wireless providers, counties, and the office;
85 accounting for receipts, distributions, and income derived by
86 the funds maintained in the fund; and providing annual reports
87 to the Governor and the Legislature for submission by the office
88 on amounts collected and expended, the purposes for which
89 expenditures have been made, and the status of E911 service in
90 this state. In order to advise and assist the office in carrying
91 out the purposes of this section, the board, which shall have
92 the power of a body corporate, has the powers enumerated in
93 subsection (6).
94 (8) E911 FEE.—
95 (a) Each voice communications services provider shall
96 collect the fee described in this subsection. The fee shall not
97 be assessed on any pay telephone in the state. This subsection
98 and the fee imposed under this subsection do not apply to
99 prepaid wireless telecommunications service. Each provider, as
100 part of its monthly billing process, shall bill the fee as
101 follows:. The fee shall not be assessed on any pay telephone in
102 the state.
103 1. Each local exchange carrier shall bill the fee to the
104 local exchange subscribers on a service-identifier basis, up to
105 a maximum of 25 access lines per account bill rendered.
106 2. Except in the case of prepaid wireless
107 telecommunications service, each wireless provider shall bill
108 the fee to a subscriber on a per-service-identifier basis for
109 service identifiers whose primary place of use is within this
110 state. Before July 1, 2009, the fee shall not be assessed on or
111 collected from a provider with respect to an end user’s service
112 if that end user’s service is a prepaid calling arrangement that
113 is subject to s. 212.05(1)(e).
114 a. The board shall conduct a study to determine whether it
115 is feasible to collect E911 fees from the sale of prepaid
116 wireless service. If, based on the findings of the study, the
117 board determines that a fee should not be collected from the
118 sale of prepaid wireless service, it shall report its findings
119 and recommendation to the Governor, the President of the Senate,
120 and the Speaker of the House of Representatives by December 31,
121 2008. If the board determines that a fee should be collected
122 from the sale of prepaid wireless service, the board shall
123 collect the fee beginning July 1, 2009.
124 b. For purposes of this section, the term:
125 (I) “Prepaid wireless service” means the right to access
126 telecommunications services that must be paid for in advance and
127 is sold in predetermined units or dollars enabling the
128 originator to make calls such that the number of units or
129 dollars declines with use in a known amount.
130 (II) “Prepaid wireless service providers” includes those
131 persons who sell prepaid wireless service regardless of its
132 form, either as a retailer or reseller.
133 c. The study must include an evaluation of methods by which
134 E911 fees may be collected from end users and purchasers of
135 prepaid wireless service on an equitable, efficient,
136 competitively neutral, and nondiscriminatory basis and must
137 consider whether the collection of fees on prepaid wireless
138 service would constitute an efficient use of public funds given
139 the technological and practical considerations of collecting the
140 fee based on the varying methodologies prepaid wireless service
141 providers and their agents use in marketing prepaid wireless
142 service.
143 d. The study must include a review and evaluation of the
144 collection of E911 fees on prepaid wireless service at the point
145 of sale within the state. This evaluation must be consistent
146 with the collection principles of end user charges such as those
147 in s. 212.05(1)(e).
148 e. No later than 90 days after this section becomes law,
149 the board shall require all prepaid wireless service providers,
150 including resellers, to provide the board with information that
151 the board determines is necessary to discharge its duties under
152 this section, including information necessary for its
153 recommendation, such as total retail and reseller prepaid
154 wireless service sales.
155 f. All subscriber information provided by a prepaid
156 wireless service provider in response to a request from the
157 board while conducting this study is subject to s. 365.174.
158 g. The study shall be conducted by an entity competent and
159 knowledgeable in matters of state taxation policy if the board
160 does not possess that expertise. The study must be paid from the
161 moneys distributed to the board for administrative purposes
162 under s. 365.173(2)(f) but may not exceed $250,000.
163 3. Except in the case of prepaid wireless
164 telecommunications service, all voice communications services
165 providers not addressed under subparagraphs 1. and 2. shall bill
166 the fee on a per-service-identifier basis for service
167 identifiers whose primary place of use is within the state up to
168 a maximum of 25 service identifiers for each account bill
169 rendered.
170 4. The provider may list the fee as a separate entry on
171 each bill, in which case the fee must be identified as a fee for
172 E911 services. A provider shall remit the fee to the board only
173 if the fee is paid by the subscriber. If a provider receives a
174 partial payment for a monthly bill from a subscriber, the amount
175 received shall first be applied to the payment due the provider
176 for providing voice communications service.
177 (b) A provider is not obligated to take any legal action to
178 enforce collection of the fees for which any subscriber is
179 billed. A county subscribing to 911 service remains liable to
180 the provider delivering the 911 service or equipment for any 911
181 service, equipment, operation, or maintenance charge owed by the
182 county to the provider.
183 (c) For purposes of this section, the state and local
184 governments are not subscribers.
185 (d) Each provider may retain 1 percent of the amount of the
186 fees collected as reimbursement for the administrative costs
187 incurred by the provider to bill, collect, and remit the fee.
188 The remainder shall be delivered to the board and deposited by
189 the board into the fund. The board shall distribute the
190 remainder pursuant to s. 365.173.
191 (e) Effective September 1, 2007, voice communications
192 services providers billing the fee to subscribers shall deliver
193 revenues from the fee to the board within 60 days after the end
194 of the month in which the fee was billed, together with a
195 monthly report of the number of service identifiers in each
196 county. Each wireless provider and other applicable provider
197 identified in subparagraph (a)3. shall report the number of
198 service identifiers for subscribers whose place of primary use
199 is in each county. All provider subscriber information provided
200 to the board is subject to s. 365.174. If a provider chooses to
201 remit any fee amounts to the board before they are paid by the
202 subscribers, a provider may apply to the board for a refund of,
203 or may take a credit for, any such fees remitted to the board
204 which are not collected by the provider within 6 months
205 following the month in which the fees are charged off for
206 federal income tax purposes as bad debt.
207 (f) The rate of the fee shall be set by the board after
208 considering the factors set forth in paragraphs (h) and (i), but
209 may not exceed 50 cents per month per each service identifier.
210 The fee shall apply uniformly and be imposed throughout the
211 state, except for those counties that, before July 1, 2007, had
212 adopted an ordinance or resolution establishing a fee less than
213 50 cents per month per access line. In those counties the fee
214 established by ordinance may be changed only to the uniform
215 statewide rate no sooner than 30 days after notification is made
216 by the county’s board of county commissioners to the board.
217 (g) It is the intent of the Legislature that all revenue
218 from the fee be used as specified in s. 365.173(2)(a)-(i).
219 (h) No later than November 1, 2007, the board may adjust
220 the allocation percentages for distribution of the fund as
221 provided in s. 365.173. When setting the percentages and
222 contemplating any adjustments to the fee, the board shall
223 consider the following:
224 1. The revenues currently allocated for wireless service
225 provider costs for implementing E911 service and projected costs
226 for implementing E911 service, including recurring costs for
227 Phase I and Phase II and the effect of new technologies;
228 2. The appropriate level of funding needed to fund the
229 rural grant program provided for in s. 365.173(2)(g); and
230 3. The need to fund statewide, regional, and county grants
231 in accordance with sub-subparagraph (6)(a)3.b.
232 (i) The board may adjust the allocation percentages or
233 adjust the amount of the fee, or both, if necessary to ensure
234 full cost recovery or prevent overrecovery of costs incurred in
235 the provision of E911 service, including costs incurred or
236 projected to be incurred to comply with the order. Any new
237 allocation percentages or reduced or increased fee may not be
238 adjusted for 1 year. The fee may not exceed 50 cents per month
239 per each service identifier. The board-established fee, and any
240 board adjustment of the fee, shall be uniform throughout the
241 state, except for the counties identified in paragraph (f). No
242 less than 90 days before the effective date of any adjustment to
243 the fee, the board shall provide written notice of the adjusted
244 fee amount and effective date to each voice communications
245 services provider from which the board is then receiving the
246 fee.
247 (j) State and local taxes do not apply to the fee.
248 (k) A local government may not levy the fee or any
249 additional fee on providers or subscribers for the provision of
250 E911 service.
251 (l) For purposes of this section, the definitions contained
252 in s. 202.11 and the provisions of s. 202.155 apply in the same
253 manner and to the same extent as the definitions and provisions
254 apply to the taxes levied under chapter 202 on mobile
255 communications services.
256 (9) PREPAID WIRELESS TELECOMMUNICATIONS SERVICE.—
257 (a) As used in this subsection, the term:
258 1. “Consumer” means a person who purchases prepaid wireless
259 telecommunications service in a retail sale.
260 2. “Prepaid wireless E911 fee” means the fee that is
261 required to be collected by a seller from a consumer in the
262 amount established under paragraph (b).
263 3. “Provider” means a person who provides prepaid wireless
264 telecommunications service pursuant to a license issued by the
265 Federal Communications Commission.
266 4. “Retail transaction” means the purchase of prepaid
267 wireless telecommunications service from a seller for any
268 purpose other than resale.
269 5. “Seller” means a person who sells prepaid wireless
270 telecommunications service to another person.
271 6. “Wireless telecommunications service” means commercial
272 mobile radio service as defined by 47 C.F.R. s. 20.3, as
273 amended.
274 (b)1.a. There is imposed a prepaid wireless E911 fee at a
275 rate of 1 percent of each retail transaction occurring in this
276 state.
277 b. The prepaid wireless E911 fee imposed under sub
278 subparagraph a. shall be increased or reduced, as applicable,
279 upon any change to the E911 fee imposed under subsection (8).
280 The adjusted rate shall be determined by dividing the amount of
281 the charge imposed under subsection (8) by $50. Such increase or
282 reduction shall be effective on the effective date of the change
283 to the E911 fee or, if later, the first day of the first
284 calendar month to occur at least 60 days after the enactment of
285 such change or notification of a change in the E911 fee as
286 provided in paragraph (8)(f). The Department of Revenue shall
287 provide not less than 30 days’ notice of such increase or
288 reduction on its public website.
289 c. For purposes of this subsection, a retail transaction
290 that is effected in person by a consumer at a business location
291 of the seller shall be treated as occurring in this state if
292 that business location is in this state, and any other retail
293 transaction shall be treated as occurring in this state if the
294 retail transaction is treated as occurring in this state under
295 s. 212.05(1)(e)1.a.(II).
296 2. The prepaid wireless E911 fee is the liability of the
297 consumer and not the seller or any provider.
298 3. The prepaid wireless E911 fee shall be collected by the
299 seller from the consumer with respect to each retail transaction
300 occurring in this state. The amount of the fee shall be
301 separately stated on an invoice, receipt, or other similar
302 document that is provided to the consumer by the seller or shall
303 otherwise be disclosed to the consumer.
304 4. The Department of Revenue shall establish procedures for
305 a seller of prepaid wireless telecommunications service to
306 document that a sale is not a retail transaction, which
307 procedures shall substantially coincide with the procedures for
308 documenting a sale for resale transaction under s. 212.186.
309 5.a. The seller shall remit to the Department of Revenue
310 all prepaid wireless E911 fees collected under this subsection,
311 including all such charges that the seller is deemed to have
312 collected when the amount of the charge was not separately
313 stated on an invoice, receipt, or other similar document
314 provided to the consumer by the seller, except that the seller
315 shall deduct and retain 3 percent of the fees collected.
316 b. The seller shall remit the fees collected to the
317 Department of Revenue at the times and in the manner provided
318 under s. 212.11. The Department of Revenue shall establish
319 registration and payment procedures that substantially coincide
320 with the registration and payment procedures that apply to the
321 tax imposed under chapter 212.
322 c. The audit and appeal procedures applicable under s.
323 212.13 apply to prepaid wireless E911 fees.
324 6. The Department of Revenue shall retain up to 2 percent
325 of the funds remitted under this subsection to reimburse its
326 direct costs of administering the collection and remittance of
327 prepaid wireless E911 fees. Thereafter, the department shall
328 transfer all remaining funds remitted under this subsection to
329 the E911 Board within 30 days after receipt for use as provided
330 in subsection (5).
331 7. The amount of the prepaid wireless E911 fee that is
332 collected by a seller from a consumer, regardless of whether
333 such amount is separately stated on an invoice, receipt, or
334 similar document provided to the consumer by the seller, shall
335 not be included in the base for measuring any tax, fee,
336 surcharge, or other charge that is imposed by this state, any
337 political subdivision of this state, or any governmental agency.
338 8. A local government may not levy the fee or any
339 additional fee on providers or sellers of prepaid wireless
340 telecommunications service for the provision of E911 service.
341 (c)1. A provider or seller of prepaid wireless
342 telecommunications service shall not be liable for damages to
343 any person resulting from or incurred in connection with the
344 provision of, or failure to provide, 911 or E911 service or for
345 identifying, or failing to identify, the telephone number,
346 address, location, or name associated with any person or device
347 that is accessing or attempting to access 911 or E911 service.
348 2. A provider or seller of prepaid wireless
349 telecommunications service shall not be liable for damages to
350 any person resulting from or incurred in connection with the
351 provision of any assistance provided by legal process to any
352 investigative or law enforcement officer of the United States,
353 this or any other state, or any political subdivision of this or
354 any other state in connection with any investigation or other
355 law enforcement activity by such investigative or law
356 enforcement officer.
357 Section 2. Paragraphs (a), (b), and (c) of subsection (2)
358 of section 365.173, Florida Statutes, are amended to read:
359 365.173 Emergency Communications Number E911 System Fund.—
360 (2) As determined by the board pursuant to s.
361 365.172(8)(h), and subject to any modifications approved by the
362 board pursuant to s. 365.172(6)(a)3. or (8)(i), the moneys in
363 the fund shall be distributed and used only as follows:
364 (a) Sixty-seven percent of the moneys in the wireless
365 category shall be distributed each month to counties, based on
366 the total number of service identifiers in each county, and
367 shall be used exclusively for payment of:
368 1. Authorized expenditures, as specified in s.
369 365.172(10)(9).
370 2. Costs to comply with the requirements for E911 service
371 contained in the order and any future rules related to the
372 order.
373 (b) Ninety-seven percent of the moneys in the nonwireless
374 category shall be distributed each month to counties based on
375 the total number of service identifiers in each county and shall
376 be used exclusively for payment of authorized expenditures, as
377 specified in s. 365.172(10)(9).
378 (c) Any county that receives funds under paragraphs (a) and
379 (b) shall establish a fund to be used exclusively for the
380 receipt and expenditure of the revenues collected under
381 paragraphs (a) and (b). All fees placed in the fund and any
382 interest accrued shall be used solely for costs described in
383 subparagraphs (a)1. and 2. The money collected and interest
384 earned in this fund shall be appropriated for these purposes by
385 the county commissioners and incorporated into the annual county
386 budget. The fund shall be included within the financial audit
387 performed in accordance with s. 218.39. A county may carry
388 forward up to 20 percent of the total funds disbursed to the
389 county by the board during a calendar year for expenditures for
390 capital outlay, capital improvements, or equipment replacement,
391 if such expenditures are made for the purposes specified in
392 subparagraphs (a)1. and 2.; however, the 20-percent limitation
393 does not apply to funds disbursed to a county under s.
394 365.172(6)(a)3., and a county may carry forward any percentage
395 of the funds, except that any grant provided shall continue to
396 be subject to any condition imposed by the board. In order to
397 prevent an excess recovery of costs incurred in providing E911
398 service, a county that receives funds greater than the
399 permissible E911 costs described in s. 365.172(10)(9), including
400 the 20 percent carryforward allowance, must return the excess
401 funds to the E911 board to be allocated under s. 365.172(6)(a).
402
403 The Legislature recognizes that the fee authorized under s.
404 365.172 may not necessarily provide the total funding required
405 for establishing or providing the E911 service. It is the intent
406 of the Legislature that all revenue from the fee be used as
407 specified in this subsection.
408 Section 3. This act shall take effect July 1, 2010.