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