Florida Senate - 2012                                    SB 1060
       By Senator Bogdanoff
       25-00495B-12                                          20121060__
    1                        A bill to be entitled                      
    2         An act relating to communications services taxes;
    3         amending s. 202.105, F.S.; revising legislative
    4         intent; amending s. 202.11, F.S.; modifying
    5         definitions; removing the definitions of the terms
    6         “cable service” and “enhanced zip code”; adding
    7         definitions for the terms “digital good,” “digital
    8         service,” “Internet access service,” and “video
    9         service”; amending ss. 202.125, 202.16, 202.20, and
   10         202.24, F.S.; conforming provisions to changes in
   11         terminology; amending s. 202.195, F.S.; clarifying
   12         provisions exempting from the public records law
   13         certain proprietary confidential business information
   14         held by a local governmental entity for the purpose of
   15         assessing the local communications services tax;
   16         amending s. 202.22, F.S.; providing an exception to
   17         the provision holding a dealer of communications
   18         services harmless from liability when the dealer fails
   19         to correct a customer’s local taxing jurisdiction
   20         following notice by the Department of Revenue;
   21         eliminating provisions requiring that the department
   22         provide a database for determining the local taxing
   23         jurisdiction in which a service address is located;
   24         amending s. 202.23, F.S.; removing a provision
   25         relating to assigning a purchaser to a local taxing
   26         jurisdiction, to conform to changes made by the act;
   27         amending s. 202.231, F.S.; requiring the Department of
   28         Revenue to aggregate monthly and make available to the
   29         public on a jurisdiction-by-jurisdiction basis certain
   30         sales and net tax information; amending s. 202.26,
   31         F.S.; conforming a cross-reference; eliminating a
   32         requirement that the department adopt a rule governing
   33         certain databases; amending s. 202.28, F.S.; deleting
   34         provisions imposing a penalty against a dealer of
   35         communications services which incorrectly assigns a
   36         service address, to conform to changes made by the
   37         act; amending s. 212.05, F.S.; revising the definition
   38         of the term “prepaid calling arrangement”; amending
   39         ss. 203.01, 610.118, and 624.105, F.S.; conforming
   40         cross-references; providing an effective date.
   42  Be It Enacted by the Legislature of the State of Florida:
   44         Section 1. Subsection (1) of section 202.105, Florida
   45  Statutes, is amended to read:
   46         202.105 Legislative findings and intent.—
   47         (1) It is declared to be a specific legislative finding
   48  that the creation of this chapter fulfills important state
   49  interests by reforming the tax laws to provide a fair,
   50  efficient, and uniform method for taxing communications services
   51  sold in this state. This chapter is essential to the continued
   52  economic vitality of this increasingly important industry
   53  because it restructures state and local taxes and fees to
   54  account for the impact of federal legislation, industry
   55  deregulation, and the multitude of convergence of service
   56  offerings that is now taking place among providers offering
   57  functionally equivalent communications services in today’s
   58  marketplace. This chapter promotes the increased competition
   59  that accompanies deregulation by embracing a competitively
   60  neutral tax policy that will free consumers to choose a provider
   61  based on tax-neutral considerations. This chapter further spurs
   62  new competition by simplifying an extremely complicated state
   63  and local tax and fee system. Simplification will lower the cost
   64  of collecting taxes and fees, increase service availability, and
   65  place downward pressure on price. Newfound administrative
   66  efficiency is demonstrated by a reduction in the number of
   67  returns that a provider must file each month. By restructuring
   68  separate taxes and fees into a revenue-neutral communications
   69  services tax centrally administered by the department, this
   70  chapter will ensure that the growth of the industry is
   71  unimpaired by excessive governmental regulation. The tax imposed
   72  pursuant to this chapter is a replacement for taxes and fees
   73  previously imposed and is not a new tax. The taxes imposed and
   74  administered pursuant to this chapter are of general application
   75  and are imposed in a uniform, consistent, and nondiscriminatory
   76  manner.
   77         Section 2. Section 202.11, Florida Statutes, is amended to
   78  read:
   79         202.11 Definitions.—As used in this chapter:
   80         (1) “Cable service” means the transmission of video, audio,
   81  or other programming service to purchasers, and the purchaser
   82  interaction, if any, required for the selection or use of any
   83  such programming service, regardless of whether the programming
   84  is transmitted over facilities owned or operated by the cable
   85  service provider or over facilities owned or operated by one or
   86  more other dealers of communications services. The term includes
   87  point-to-point and point-to-multipoint distribution services by
   88  which programming is transmitted or broadcast by microwave or
   89  other equipment directly to the purchaser’s premises, but does
   90  not include direct-to-home satellite service. The term includes
   91  basic, extended, premium, pay-per-view, digital, and music
   92  services.
   93         (1)(2) “Communications services” means the transmission,
   94  conveyance, or routing of voice, data, audio, video, or any
   95  other information or signals, including video cable services, to
   96  a point, or between or among points, by or through any
   97  electronic, radio, satellite, cable, optical, microwave, or
   98  other medium or method now in existence or hereafter devised,
   99  regardless of the protocol used for such transmission or
  100  conveyance. The term includes such transmission, conveyance, or
  101  routing in which computer processing applications are used to
  102  act on the form, code, or protocol of the content for purposes
  103  of transmission, conveyance, or routing without regard to
  104  whether such service is referred to as voice-over-Internet
  105  protocol services or is classified by the Federal Communications
  106  Commission as enhanced or value-added. The term does not
  107  include:
  108         (a) Information services.
  109         (b) Installation or maintenance of wiring or equipment on a
  110  customer’s premises.
  111         (c) The sale or rental of tangible personal property.
  112         (d) The sale of advertising, including, but not limited to,
  113  directory advertising.
  114         (e) Bad check charges.
  115         (f) Late payment charges.
  116         (g) Billing and collection services.
  117         (h) Internet access service, electronic mail service,
  118  electronic bulletin board service, or similar online computer
  119  services.
  120         (i) Digital goods.
  121         (j) Digital services.
  122         (2)(3) “Dealer” means a person registered with the
  123  department as a provider of communications services in this
  124  state.
  125         (3)(4) “Department” means the Department of Revenue.
  126         (4) “Digital good” means any downloaded good or product
  127  that is delivered or transferred by means other than tangible
  128  storage media, including downloaded games, software, music, or
  129  other digital content. The term does not include video service.
  130         (5) “Digital service” means any service, other than video
  131  service, which is provided electronically, including remotely
  132  provided access to or use of software or another digital good,
  133  and also includes the following services, if they are provided
  134  remotely: monitoring, security, distance learning, energy
  135  management, medical diagnostic, mechanical diagnostic, and
  136  vehicle tracking services. If a digital service is bundled for
  137  sale with the transmission, conveyance, or routing of any
  138  information or signals, the bundled service is a digital service
  139  unless the tax imposed under this chapter and chapter 203 has
  140  not been paid with respect to such transmission, conveyance, or
  141  routing.
  142         (6)(5) “Direct-to-home satellite service” has the meaning
  143  ascribed in the Communications Act of 1934, 47 U.S.C. s. 303(v).
  144         (7)(6) “Information service” means the offering of a
  145  capability for generating, acquiring, storing, transforming,
  146  processing, retrieving, using, or making available information
  147  via communications services, including, but not limited to,
  148  electronic publishing, web-hosting service, and end-user 900
  149  number service. The term does not include any video, audio, or
  150  other programming service that uses point-to-multipoint
  151  distribution by which programming is delivered, transmitted, or
  152  broadcast by any means, including any interaction that may be
  153  necessary for selecting and using the service, regardless of
  154  whether the programming is delivered, transmitted, or broadcast
  155  over facilities owned or operated by the seller or another, or
  156  whether denominated as cable service or as basic, extended,
  157  premium, pay-per-view, digital, music, or two-way cable service.
  158         (8) “Internet access service” has the same meaning as
  159  ascribed to the term “Internet access” by s. 1105(5) of the
  160  Internet Tax Freedom Act, 47 U.S.C. s. 151 note, as amended by
  161  Pub. L. No. 110-108.
  162         (9)(7) “Mobile communications service” means commercial
  163  mobile radio service, as defined in 47 C.F.R. s. 20.3 as in
  164  effect on June 1, 1999. The term does not include air-ground
  165  radiotelephone service as defined in 47 C.F.R. s. 22.99 as in
  166  effect on June 1, 1999.
  167         (10)(8) “Person” has the meaning ascribed in s. 212.02.
  168         (11)(9) “Prepaid calling arrangement” means the separately
  169  stated retail sale by advance payment of communications services
  170  that must be paid for in advance; that may be used to place or
  171  receive consist exclusively of telephone calls originated; that
  172  are enabled by using an access number, authorization code, or
  173  other means that may be manually, electronically, or otherwise
  174  entered;, and that are sold in predetermined units or dollars of
  175  which the number declines on a predetermined basis with use in a
  176  known amount.
  177         (12)(10) “Purchaser” means the person paying for or
  178  obligated to pay for communications services.
  179         (13)(11) “Retail sale” means the sale of communications
  180  services for any purpose other than for resale or for use as a
  181  component part of or for integration into communications
  182  services to be resold in the ordinary course of business.
  183  However, any sale for resale must comply with s. 202.16(2) and
  184  the rules adopted thereunder.
  185         (14)(12) “Sale” means the provision of communications
  186  services for a consideration.
  187         (15)(13) “Sales price” means the total amount charged in
  188  money or other consideration by a dealer for the sale of the
  189  right or privilege of using communications services in this
  190  state, including any property or other service, not described in
  191  paragraph (a), which is services that are part of the sale and
  192  for which the charge is not separately itemized on a customer’s
  193  bill or separately allocated under subparagraph (b)8. The sales
  194  price of communications services may shall not be reduced by any
  195  separately identified components of the charge which that
  196  constitute expenses of the dealer, including, but not limited
  197  to, sales taxes on goods or services purchased by the dealer,
  198  property taxes, taxes measured by net income, and universal
  199  service fund fees.
  200         (a) The sales price of communications services includes
  201  shall include, whether or not separately stated, charges for any
  202  of the following:
  203         1. The connection, movement, change, or termination of
  204  communications services.
  205         2. The detailed billing of communications services.
  206         3. The sale of directory listings in connection with a
  207  communications service.
  208         4. Central office and custom calling features.
  209         5. Voice mail and other messaging service.
  210         6. Directory assistance.
  211         7. The service of sending or receiving a document commonly
  212  referred to as a facsimile or “fax,” except when performed
  213  during the course of providing professional or advertising
  214  services.
  215         (b) The sales price of communications services does not
  216  include charges for any of the following:
  217         1. An Any excise tax, sales tax, or similar tax levied by
  218  the United States or any state or local government on the
  219  purchase, sale, use, or consumption of any communications
  220  service, including, but not limited to, a any tax imposed under
  221  this chapter or chapter 203 which is permitted or required to be
  222  added to the sales price of such service, if the tax is stated
  223  separately.
  224         2. A Any fee or assessment levied by the United States or
  225  any state or local government, including, but not limited to,
  226  regulatory fees and emergency telephone surcharges, which must
  227  is required to be added to the price of the such service if the
  228  fee or assessment is separately stated.
  229         3. Communications services paid for by inserting coins into
  230  coin-operated communications devices available to the public.
  231         4. The sale or recharge of a prepaid calling arrangement.
  232         5. The provision of air-to-ground communications services,
  233  defined as a radio service provided to a purchaser purchasers
  234  while on board an aircraft.
  235         6. A dealer’s internal use of communications services in
  236  connection with its business of providing communications
  237  services.
  238         7. Charges for property or other services that are not part
  239  of the sale of communications services, if such charges are
  240  stated separately from the charges for communications services.
  241         8. To the extent required by federal law, Charges for goods
  242  and services that are exempt from tax under this chapter,
  243  including Internet access services but excluding any item
  244  described in paragraph (a), that which are not separately
  245  itemized on a customer’s bill, but that which can be reasonably
  246  identified from the selling dealer’s books and records kept in
  247  the regular course of business. The dealer may support the
  248  allocation of charges with books and records kept in the regular
  249  course of business covering the dealer’s entire service area,
  250  including territories outside this state.
  251         (16)(14) “Service address” means:
  252         (a) Except as otherwise provided in this section:
  253         1. The location of the communications equipment from which
  254  communications services originate or at which communications
  255  services are received by the customer;
  256         2. In the case of a communications service paid through a
  257  credit or payment mechanism that does not relate to a service
  258  address, such as a bank, travel, debit, or credit card, and in
  259  the case of third-number and calling-card calls, the term
  260  “service address” means the address of the central office, as
  261  determined by the area code and the first three digits of the
  262  seven-digit originating telephone number; or
  263         3. If the location of the equipment described in
  264  subparagraph 1. is not known and subparagraph 2. is
  265  inapplicable, the term “service address” means the location of
  266  the customer’s primary use of the communications service. For
  267  purposes of this subparagraph, the location of the customer’s
  268  primary use of a communications service is the residential
  269  street address or the business street address of the customer.
  270         (b) In the case of video cable services and direct-to-home
  271  satellite services, the location where the customer receives the
  272  services in this state.
  273         (c) In the case of mobile communications services, the
  274  customer’s place of primary use.
  275         (17)(15) “Unbundled network element” means a network
  276  element, as defined in 47 U.S.C. s. 153(29), to which access is
  277  provided on an unbundled basis pursuant to 47 U.S.C. s.
  278  251(c)(3).
  279         (18)(16) “Private communications service” means a
  280  communications service that entitles the subscriber or user to
  281  exclusive or priority use of a communications channel or group
  282  of channels between or among channel termination points,
  283  regardless of the manner in which such channel or channels are
  284  connected, and includes switching capacity, extension lines,
  285  stations, and any other associated services that which are
  286  provided in connection with the use of such channel or channels.
  287         (19)(17)(a) “Customer” means:
  288         1. The person or entity that contracts with the home
  289  service provider for mobile communications services; or
  290         2. If the end user of mobile communications services is not
  291  the contracting party, the end user of the mobile communications
  292  service. This subparagraph only applies for the purpose of
  293  determining the place of primary use.
  294         (b) “Customer” does not include:
  295         1. A reseller of mobile communications services; or
  296         2. A serving carrier under an agreement to serve the
  297  customer outside the home service provider’s licensed service
  298  area.
  299         (18) “Enhanced zip code” means a United States postal zip
  300  code of 9 or more digits.
  301         (20)(19) “Home service provider” means the facilities-based
  302  carrier or reseller with which the customer contracts for the
  303  provision of mobile communications services.
  304         (21)(20) “Licensed service area” means the geographic area
  305  in which the home service provider is authorized by law or
  306  contract to provide mobile communications service to the
  307  customer.
  308         (22)(21) “Place of primary use” means the street address
  309  representative of where the customer’s use of the mobile
  310  communications service primarily occurs, which must be:
  311         (a) The residential street address or the primary business
  312  street address of the customer; and
  313         (b) Within the licensed service area of the home service
  314  provider.
  315         (23)(22)(a) “Reseller” means a provider who purchases
  316  communications services from another communications service
  317  provider and then resells, uses as a component part of, or
  318  integrates the purchased services into a mobile communications
  319  service.
  320         (b) The term “Reseller” does not include a serving carrier
  321  with which a home service provider arranges for the services to
  322  its customers outside the home service provider’s licensed
  323  service area.
  324         (24)(23) “Serving carrier” means a facilities-based carrier
  325  providing mobile communications service to a customer outside a
  326  home service provider’s or reseller’s licensed service area.
  327         (25)(24) “Video service” means the transmission of video,
  328  audio, or other programming service to a purchaser, and the
  329  purchaser interaction, if any, required for the selection or use
  330  of a programming service, regardless of whether the programming
  331  is transmitted over facilities owned or operated by the video
  332  service provider or over facilities owned or operated by another
  333  dealer of communications services. The term includes point-to
  334  point and point-to-multipoint distribution services through
  335  which programming is transmitted or broadcast by microwave or
  336  other equipment directly to the purchaser’s premises, but does
  337  not include direct-to-home satellite service. The term includes
  338  basic, extended, premium, pay-per-view, digital video, two-way
  339  cable, and music services has the same meaning as that provided
  340  in s. 610.103.
  341         Section 3. Subsection (1) of section 202.125, Florida
  342  Statutes, is amended to read:
  343         202.125 Sales of communications services; specified
  344  exemptions.—
  345         (1) The separately stated sales price of communications
  346  services sold to residential households is exempt from the tax
  347  imposed by s. 202.12 and s. 203.01(1)(b)3. This exemption does
  348  not apply to any residence that constitutes all or part of a
  349  transient public lodging establishment as defined in chapter
  350  509, any mobile communications service, any video cable service,
  351  or any direct-to-home satellite service.
  352         Section 4. Paragraph (a) of subsection (2) of section
  353  202.16, Florida Statutes, is amended to read:
  354         202.16 Payment.—The taxes imposed or administered under
  355  this chapter and chapter 203 shall be collected from all dealers
  356  of taxable communications services on the sale at retail in this
  357  state of communications services taxable under this chapter and
  358  chapter 203. The full amount of the taxes on a credit sale,
  359  installment sale, or sale made on any kind of deferred payment
  360  plan is due at the moment of the transaction in the same manner
  361  as a cash sale.
  362         (2)(a) A sale of communications services that are used as a
  363  component part of or integrated into a communications service or
  364  prepaid calling arrangement for resale, including, but not
  365  limited to, carrier-access charges, interconnection charges paid
  366  by providers of mobile communication services or other
  367  communication services, charges paid by a video cable service
  368  provider providers for the purchase of video programming or the
  369  transmission of video or other programming by another dealer of
  370  communications services, charges for the sale of unbundled
  371  network elements, and any other intercompany charges for the use
  372  of facilities for providing communications services for resale,
  373  must be made in compliance with the rules of the department. A
  374  Any person who makes a sale for resale which is not in
  375  compliance with these rules is liable for any tax, penalty, and
  376  interest due for failing to comply, to be calculated pursuant to
  377  s. 202.28(2)(a).
  378         Section 5. Subsections (1) and (3) of section 202.195,
  379  Florida Statutes, are amended to read:
  380         202.195 Proprietary confidential business information;
  381  public records exemption.—
  382         (1) Proprietary confidential business information obtained
  383  from a telecommunications company or from a franchised or
  384  certificated video service provider cable company for the
  385  purposes of imposing fees for occupying the public rights-of
  386  way, assessing the local communications services tax pursuant to
  387  s. 202.19, or occupying or regulating the public rights-of-way,
  388  held by a local governmental entity, is confidential and exempt
  389  from s. 119.07(1) and s. 24(a), Art. I of the State
  390  Constitution. Such proprietary confidential business information
  391  held by a local governmental entity may be used only for the
  392  purposes of imposing such fees, assessing such tax, or
  393  regulating such rights-of-way, and may not be used for any other
  394  purposes, including, but not limited to, commercial or
  395  competitive purposes.
  396         (3) Nothing in This exemption does not expand expands the
  397  information or documentation that a local governmental entity
  398  may properly request under applicable law pursuant to the
  399  imposition of fees for occupying the rights-of-way, the local
  400  communication services tax, or the regulation of its public
  401  rights-of-way.
  402         Section 6. Paragraph (b) of subsection (2) of section
  403  202.20, Florida Statutes, is amended to read:
  404         202.20 Local communications services tax conversion rates.—
  405         (2)
  406         (b) Except as otherwise provided in this subsection, the
  407  term “replaced revenue sources,” as used in this section, means
  408  the following taxes, charges, fees, or other impositions to the
  409  extent that the respective local taxing jurisdictions were
  410  authorized to impose them prior to July 1, 2000.
  411         1. With respect to municipalities and charter counties and
  412  the taxes authorized by s. 202.19(1):
  413         a. The public service tax on telecommunications authorized
  414  by former s. 166.231(9).
  415         b. Franchise fees on video cable service providers as
  416  authorized by 47 U.S.C. s. 542.
  417         c. The public service tax on prepaid calling arrangements.
  418         d. Franchise fees on dealers of communications services
  419  which use the public roads or rights-of-way, up to the limit set
  420  forth in s. 337.401. For purposes of calculating rates under
  421  this section, it is the legislative intent that charter counties
  422  be treated as having had the same authority as municipalities to
  423  impose franchise fees on recurring local telecommunication
  424  service revenues before prior to July 1, 2000. However, the
  425  Legislature recognizes that the authority of charter counties to
  426  impose such fees is in dispute, and the treatment provided in
  427  this section is not an expression of legislative intent that
  428  charter counties actually do or do not possess such authority.
  429         e. Actual permit fees relating to placing or maintaining
  430  facilities in or on public roads or rights-of-way, collected
  431  from providers of long-distance, cable, and mobile
  432  communications services for the fiscal year ending September 30,
  433  1999; however, if a municipality or charter county elects the
  434  option to charge permit fees pursuant to s. 337.401(3)(c)1.a.,
  435  such fees may shall not be included as a replaced revenue
  436  source.
  437         2. With respect to all other counties and the taxes
  438  authorized in s. 202.19(1), franchise fees on video cable
  439  service providers as authorized by 47 U.S.C. s. 542.
  440         Section 7. Section 202.22, Florida Statutes, is amended to
  441  read:
  442         202.22 Determination of local tax situs.—
  443         (1) A dealer of communications services who is obligated to
  444  collect and remit a local communications services tax imposed
  445  under s. 202.19 shall be held harmless from any liability,
  446  including tax, interest, and penalties, which would otherwise be
  447  due solely as a result of an assignment of a service address to
  448  an incorrect local taxing jurisdiction, unless the liability
  449  arises from tax that is due with respect to taxable services
  450  that are included on bills to a customer which are dated on or
  451  after the first day of the fourth month after the dealer is
  452  notified by the department that the customer has been
  453  incorrectly assigned. if the dealer of communications services
  454  exercises due diligence in applying one or more of the following
  455  methods for determining the local taxing jurisdiction in which a
  456  service address is located:
  457         (a) Employing an electronic database provided by the
  458  department under subsection (2).
  459         (b) Employing a database developed by the dealer or
  460  supplied by a vendor which has been certified by the department
  461  under subsection (3).
  462         (c)1. Employing enhanced zip codes to assign each street
  463  address, address range, post office box, or post office box
  464  range in the dealer’s service area to a specific local taxing
  465  jurisdiction.
  466         2. If an enhanced zip code overlaps boundaries of
  467  municipalities or counties, or if an enhanced zip code cannot be
  468  assigned to the service address because the service address is
  469  in a rural area or a location without postal delivery, the
  470  dealer of communications services or its database vendor shall
  471  assign the affected service addresses to one specific local
  472  taxing jurisdiction within such zip code based on a reasonable
  473  methodology. A methodology satisfies this subparagraph if the
  474  information used to assign service addresses is obtained by the
  475  dealer or its database vendor from:
  476         a. A database provided by the department;
  477         b. A database certified by the department under subsection
  478  (3);
  479         c. Responsible representatives of the relevant local taxing
  480  jurisdictions; or
  481         d. The United States Census Bureau or the United States
  482  Postal Service.
  483         (d) Employing a database of street addresses or other
  484  assignments that does not meet the requirements of paragraphs
  485  (a)-(c), but meets the criteria set forth in paragraph (3)(a) at
  486  the time of audit by the department.
  487         (2)(a) The department shall, subject to legislative
  488  appropriation, create as soon as practical and feasible, and
  489  thereafter maintain, an electronic database that gives due and
  490  proper regard to any format that is approved by the American
  491  National Standards Institute’s Accredited Standards Committee
  492  X12 and that designates for each street address, address range,
  493  post office box, or post office box range in the state,
  494  including any multiple postal street addresses applicable to one
  495  street location, the local taxing jurisdiction in which the
  496  street address, address range, post office box, or post office
  497  box range is located and the appropriate code for each such
  498  local taxing jurisdiction, identified by one nationwide standard
  499  numeric code. The nationwide standard numeric code must contain
  500  the same number of numeric digits, and each digit, or
  501  combination of digits, must refer to the same level of taxing
  502  jurisdiction throughout the United States using a format similar
  503  to FIPS 55-3 or other appropriate standard approved by the
  504  Federation of Tax Administrators and the Multistate Tax
  505  Commission. Each address or address range or post office box or
  506  post office box range must be provided in standard postal
  507  format, including the street number, street number range, street
  508  name, post office box number, post office box range, and zip
  509  code. The department shall provide notice of the availability of
  510  the database, and any subsequent revision thereof, by
  511  publication in the Florida Administrative Weekly.
  512         (b)1. Each local taxing jurisdiction shall furnish to the
  513  department all information needed to create and update the
  514  electronic database, including changes in service addresses,
  515  annexations, incorporations, reorganizations, and any other
  516  changes in jurisdictional boundaries. The information furnished
  517  to the department must specify an effective date, which must be
  518  the next ensuing January 1 or July 1, and such information must
  519  be furnished to the department at least 120 days prior to the
  520  effective date. However, the requirement that counties submit
  521  information pursuant to this paragraph shall be subject to
  522  appropriation.
  523         2. The department shall update the electronic database in
  524  accordance with the information furnished by local taxing
  525  jurisdictions under subparagraph 1. Each update must specify the
  526  effective date as the next ensuing January 1 or July 1 and must
  527  be posted by the department on a website not less than 90 days
  528  prior to the effective date. A substantially affected person may
  529  provide notice to the database administrator of an objection to
  530  information contained in the electronic database. If an
  531  objection is supported by competent evidence, the department
  532  shall forward the evidence to the affected local taxing
  533  jurisdictions and update the electronic database in accordance
  534  with the determination furnished by local taxing jurisdictions
  535  to the department. The department shall also furnish the update
  536  on magnetic or electronic media to any dealer of communications
  537  services or vendor who requests the update on such media.
  538  However, the department may collect a fee from the dealer of
  539  communications services which does not exceed the actual cost of
  540  furnishing the update on magnetic or electronic media.
  541  Information contained in the electronic database is conclusive
  542  for purposes of this chapter. The electronic database is not an
  543  order, a rule, or a policy of general applicability.
  544         3. Each update must identify the additions, deletions, and
  545  other changes to the preceding version of the database.
  546         (3) For purposes of this section, a database must be
  547  certified by the department pursuant to rules that implement the
  548  following criteria and procedures:
  549         (a) The database must assign street addresses, address
  550  ranges, post office boxes, or post office box ranges to the
  551  proper jurisdiction with an overall accuracy rate of 95 percent
  552  at a 95 percent level of confidence, as determined through a
  553  statistically reliable sample. The accuracy must be measured
  554  based on the entire geographic area within the state covered by
  555  such database.
  556         (b) Upon receipt of an application for certification or
  557  recertification of a database, the provisions of s. 120.60 shall
  558  apply, except that the department shall examine the application
  559  and, within 90 days after receipt, notify the applicant of any
  560  apparent errors or omissions and request any additional
  561  information determined necessary. The applicant shall designate
  562  an individual responsible for providing access to all records,
  563  facilities, and processes the department determines are
  564  reasonably necessary to review, inspect, or test to make a
  565  determination regarding the application. Such access must be
  566  provided within 10 working days after notification.
  567         (c) The application must be in the form prescribed by rule
  568  and must include the applicant’s name, federal employer
  569  identification number, mailing address, business address, and
  570  any other information required by the department. The
  571  application may request that the applicant identify the
  572  applicant’s proposal for testing the database.
  573         (d) Each application for certification must be approved or
  574  denied upon written notice within 180 days after receipt of a
  575  completed application. The notice must specify the grounds for
  576  denial, inform the applicant of any remedy that is available,
  577  and indicate the procedure that must be followed. Filing of a
  578  petition under chapter 120 does not preclude the department from
  579  certifying the database upon a demonstration that the
  580  deficiencies have been corrected.
  581         (e) Certification or recertification of a database under
  582  this subsection is effective from the date of the department’s
  583  notice approving the application until the expiration of 3 or 4
  584  years following such date, as set forth in the notice, except as
  585  provided in paragraph (f).
  586         (f) An application for recertification of a database must
  587  be received by the department not more than 3 years after the
  588  date of any prior certification. The application and procedures
  589  relating thereto shall be governed by this subsection, except as
  590  otherwise provided in this paragraph. When an application for
  591  recertification has been timely submitted, the existing
  592  certification shall not expire but shall remain effective until
  593  the application has received final action by the department, or
  594  if the application is denied, until the denial is no longer
  595  subject to administrative or judicial review or such later date
  596  as may be fixed by order of the reviewing court.
  597         (g) Notwithstanding any provision of law to the contrary,
  598  if a dealer submits an application for certification on or
  599  before the later of October 1, 2001, or the date that is 30 days
  600  after the date on which the applicable department rule becomes
  601  effective, the 180-day time limit set forth in paragraph (d)
  602  does not apply. During the time the application is under
  603  consideration by the department or, if the application is
  604  denied, until the denial is no longer subject to administrative
  605  or judicial review or until a later date fixed by order of the
  606  reviewing court:
  607         1. For purposes of computing the amount of the deduction to
  608  which such dealer is entitled under s. 202.28, the dealer shall
  609  be deemed to have used a certified database pursuant to
  610  paragraph (1)(b).
  611         2. In the event that such application is approved, such
  612  approval shall be deemed to have been effective on the date of
  613  the application or October 1, 2001, whichever is later.
  614         (4)(a) As used in this section, “due diligence” means the
  615  care and attention that is expected from, and ordinarily
  616  exercised by, a reasonable and prudent person under the
  617  circumstances.
  618         (b) Notwithstanding any law to the contrary, a dealer of
  619  communications services is exercising due diligence in applying
  620  one or more of the methods set forth in subsection (1) if the
  621  dealer:
  622         1. Expends reasonable resources to accurately and reliably
  623  implement such method. However, the employment of enhanced zip
  624  codes pursuant to paragraph (1)(c) satisfies the requirements of
  625  this subparagraph; and
  626         2. Maintains adequate internal controls in assigning street
  627  addresses, address ranges, post offices boxes, and post office
  628  box ranges to taxing jurisdictions. Internal controls are
  629  adequate if the dealer of communications services:
  630         a. Maintains and follows procedures to obtain and implement
  631  periodic and consistent updates to the database at least once
  632  every 6 months; and
  633         b. Corrects errors in the assignments of service addresses
  634  to local taxing jurisdictions within 120 days after the dealer
  635  discovers such errors.
  636         (5) If a dealer of communications services does not use one
  637  or more of the methods specified in subsection (1) for
  638  determining the local taxing jurisdiction in which a service
  639  address is located, the dealer of communications services may be
  640  held liable to the department for any tax, including interest
  641  and penalties, which is due as a result of assigning the service
  642  address to an incorrect local taxing jurisdiction. However, the
  643  dealer of communications services is not liable for any tax,
  644  interest, or penalty to the extent that such amount was
  645  collected and remitted by the dealer of communications services
  646  with respect to a tax imposed by another local taxing
  647  jurisdiction. Upon determining that an amount was collected and
  648  remitted by a dealer of communications services with respect to
  649  a tax imposed by another local taxing jurisdiction, the
  650  department shall adjust the respective amounts of the proceeds
  651  paid to each such taxing jurisdiction under s. 202.18 in the
  652  month immediately following such determination.
  653         (6)(a) Pursuant to rules adopted by the department, each
  654  dealer of communications services must notify the department of
  655  the methods it intends to employ for determining the local
  656  taxing jurisdiction in which service addresses are located.
  657         (b) Notwithstanding s. 202.28, if a dealer of
  658  communications services employs a method of assigning service
  659  addresses other than as set forth in paragraph (1)(a), paragraph
  660  (1)(b), or paragraph (1)(c), the deduction allowed to the dealer
  661  of communications services as compensation under s. 202.28 shall
  662  be 0.25 percent of that portion of the tax due and accounted for
  663  and remitted to the department which is attributable to such
  664  method of assigning service addresses other than as set forth in
  665  paragraph (1)(a), paragraph (1)(b), or paragraph (1)(c).
  666         (7) As used in this section, “enhanced zip code” means a
  667  United States postal zip code of 9 or more digits.
  668         (8) All local communications services taxes collected by a
  669  dealer are subject to the provisions of s. 213.756. The hold
  670  harmless protection provided by subsection (1) does not entitle
  671  a dealer to retain or take credits for taxes collected from any
  672  customers that are assigned to an incorrect local taxing
  673  jurisdiction in excess of the taxes due to the correct local
  674  taxing jurisdiction for that customer. Dealers are entitled to
  675  refunds of or credits for such excess collections only upon
  676  making refunds or providing credits to the customer.
  677         Section 8. Subsections (2) and (5) of section 202.23,
  678  Florida Statutes, are amended to read:
  679         202.23 Procedure on purchaser’s request for refund or
  680  credit of communications services taxes.—
  681         (2) This section provides the sole and exclusive procedure
  682  and remedy for a purchaser who claims that a dealer has
  683  collected communications services taxes imposed or administered
  684  under this chapter which were not due. An action that arises as
  685  a result of the claimed collection of taxes that were not due
  686  may not be commenced or maintained by or on behalf of a
  687  purchaser against a dealer, a municipality, a county, or the
  688  state unless the purchaser pleads and proves that the purchaser
  689  has exhausted the procedures in subsection (1) and that the
  690  defendant has failed to comply with subsection (1). However, a
  691  dealer who does not make a determination no determination by a
  692  dealer under paragraph (1)(c) shall be deemed a failure to
  693  comply with subsection (1) if the dealer has complied with the
  694  obligations imposed on the dealer by paragraphs (1)(d), (e), and
  695  (f). In any such action, it is a complete defense if that the
  696  dealer, a municipality, a county, or the state has refunded the
  697  taxes claimed or credited the purchaser’s account. In such an
  698  action against a dealer, it is also a complete defense that, in
  699  collecting the tax, the dealer used one or more of the methods
  700  set forth in s. 202.22 for assigning the purchaser to a local
  701  taxing jurisdiction. An Such action is barred unless it is
  702  commenced within 180 days following the date of the dealer’s
  703  written response under paragraph (1)(f), or within 1 year
  704  following submission of the purchaser’s request to the dealer if
  705  the dealer failed to issue a timely written response. The relief
  706  available to a purchaser as a result of collection of
  707  communications services taxes that were not due is limited to a
  708  refund of or credit for such taxes.
  709         (5) A dealer who has collected and remitted amounts that
  710  were not due, as determined by the department under paragraph
  711  (1)(e), who has issued a refund or credit to the purchaser for
  712  such amounts, and who takes a credit or receives a refund from
  713  the department for such amounts as provided in subsection (3) is
  714  not subject to assessment for any of the tax that was refunded
  715  or credited or for any interest or penalty with respect to the
  716  tax. In addition, a dealer who modifies his or her tax
  717  compliance practices to conform to a department determination
  718  under paragraph (1)(e) is not subject to assessment as a result
  719  of such modification, absent a subsequent change in law or
  720  update to a database pursuant to s. 202.22.
  721         Section 9. Subsection (3) is added to section 202.231,
  722  Florida Statutes, to read:
  723         202.231 Provision of information to local taxing
  724  jurisdictions.—
  725         (3) The gross taxable sales and net tax information
  726  contained in the monthly reports required by this section shall
  727  be aggregated on a jurisdiction-by-jurisdiction basis, and the
  728  aggregate jurisdiction-by-jurisdiction information shall be made
  729  available by the department to the public through the
  730  department’s website for each fiscal year this chapter has been
  731  in effect.
  732         Section 10. Paragraphs (a) and (c) of subsection (2) of
  733  section 202.24, Florida Statutes, are amended to read:
  734         202.24 Limitations on local taxes and fees imposed on
  735  dealers of communications services.—
  736         (2)(a) Except as provided in paragraph (c), each public
  737  body is prohibited from:
  738         1. Levying on or collecting from dealers or purchasers of
  739  communications services any tax, charge, fee, or other
  740  imposition on or with respect to the provision or purchase of
  741  communications services.
  742         2. Requiring any dealer of communications services to enter
  743  into or extend the term of a franchise or other agreement that
  744  requires the payment of a tax, charge, fee, or other imposition.
  745         3. Adopting or enforcing any provision of any ordinance or
  746  agreement to the extent that such provision obligates a dealer
  747  of communications services to charge, collect, or pay to the
  748  public body a tax, charge, fee, or other imposition.
  750  Municipalities and counties may not negotiate those terms and
  751  conditions related to franchise fees or the definition of gross
  752  revenues or other definitions or methodologies related to the
  753  payment or assessment of franchise fees on providers of cable or
  754  video services.
  755         (c) This subsection does not apply to:
  756         1. Local communications services taxes levied under this
  757  chapter.
  758         2. Ad valorem taxes levied pursuant to chapter 200.
  759         3. Business taxes levied under chapter 205.
  760         4. “911” service charges levied under chapter 365.
  761         5. Amounts charged for the rental or other use of property
  762  owned by a public body which is not in the public rights-of-way
  763  to a dealer of communications services for any purpose,
  764  including, but not limited to, the placement or attachment of
  765  equipment used in the provision of communications services.
  766         6. Permit fees of general applicability which are not
  767  related to placing or maintaining facilities in or on public
  768  roads or rights-of-way.
  769         7. Permit fees related to placing or maintaining facilities
  770  in or on public roads or rights-of-way pursuant to s. 337.401.
  771         8. Any in-kind requirements, institutional networks, or
  772  contributions for, or in support of, the use or construction of
  773  public, educational, or governmental access facilities allowed
  774  under federal law and imposed on providers of cable or video
  775  service pursuant to any existing ordinance or an existing
  776  franchise agreement granted by each municipality or county,
  777  under which ordinance or franchise agreement service is provided
  778  before prior to July 1, 2007, or as permitted under chapter 610.
  779  Nothing in This subparagraph does not shall prohibit the ability
  780  of providers of cable or video service from recovering the to
  781  recover such expenses as allowed under federal law.
  782         9. Special assessments and impact fees.
  783         10. Pole attachment fees that are charged by a local
  784  government for attachments to utility poles owned by the local
  785  government.
  786         11. Utility service fees or other similar user fees for
  787  utility services.
  788         12. Any other generally applicable tax, fee, charge, or
  789  imposition authorized by general law on July 1, 2000, which is
  790  not specifically prohibited by this subsection or included as a
  791  replaced revenue source in s. 202.20.
  792         Section 11. Paragraphs (f), (g), (h), (i), and (j) of
  793  subsection (3) of section 202.26, Florida Statutes, are amended
  794  to read:
  795         202.26 Department powers.—
  796         (3) To administer the tax imposed by this chapter, the
  797  department may adopt rules relating to:
  798         (f) The records and methods necessary for a dealer to
  799  demonstrate the exercise of due diligence as defined by s.
  800  202.22 202.22(4)(b).
  801         (g) The creation of the database described in s. 202.22(2)
  802  and the certification and recertification of the databases as
  803  described in s. 202.22(3).
  804         (g)(h) The registration of dealers.
  805         (h)(i) The review of applications for, and the issuance of,
  806  direct-pay permits, and the returns required to be filed by
  807  holders thereof.
  808         (i)(j) The types of books and records kept in the regular
  809  course of business which must be available during an audit of a
  810  dealer’s books and records when the dealer has made an
  811  allocation or attribution pursuant to the definition of sales
  812  prices in s. 202.11(15)(b)8. 202.11(13)(b)8. and examples of
  813  methods for determining the reasonableness thereof. Books and
  814  records kept in the regular course of business include, but are
  815  not limited to, general ledgers, price lists, cost records,
  816  customer billings, billing system reports, tariffs, and other
  817  regulatory filings and rules of regulatory authorities. The Such
  818  records may be required to be made available to the department
  819  in an electronic format when so kept by the dealer. The dealer
  820  may support the allocation of charges with books and records
  821  kept in the regular course of business covering the dealer’s
  822  entire service area, including territories outside this state.
  823  During an audit, the department may reasonably require
  824  production of any additional books and records found necessary
  825  to assist in its determination.
  826         Section 12. Paragraph (e) of subsection (2) of section
  827  202.28, Florida Statutes, is amended to read:
  828         202.28 Credit for collecting tax; penalties.—
  829         (2)
  830         (e) If a dealer of communications services does not use one
  831  or more of the methods specified in s. 202.22(1) for assigning
  832  service addresses to local jurisdictions and assigns one or more
  833  service addresses to an incorrect local jurisdiction in
  834  collecting and remitting local communications services taxes
  835  imposed under s. 202.19, the dealer shall be subject to a
  836  specific penalty of 10 percent of any tax collected but reported
  837  to the incorrect jurisdiction as a result of incorrect
  838  assignment, except that the penalty imposed under this paragraph
  839  with respect to a single return may not exceed $10,000.
  840         Section 13. Paragraph (a) of subsection (1) of section
  841  203.01, Florida Statutes, is amended to read:
  842         203.01 Tax on gross receipts for utility and communications
  843  services.—
  844         (1)(a)1. A tax is imposed on gross receipts from utility
  845  services that are delivered to a retail consumer in this state.
  846  The Such tax shall be levied as provided in paragraphs (b)-(j).
  847         2. A tax is levied on communications services as defined in
  848  s. 202.11(1) 202.11(2). The Such tax shall be applied to the
  849  same services and transactions as are subject to taxation under
  850  chapter 202, and to communications services that are subject to
  851  the exemption provided in s. 202.125(1). The Such tax shall be
  852  applied to the sales price of communications services when sold
  853  at retail, as the such terms are defined in s. 202.11, shall be
  854  due and payable at the same time as the taxes imposed pursuant
  855  to chapter 202, and shall be administered and collected pursuant
  856  to the provisions of chapter 202.
  857         Section 14. Paragraph (e) of subsection (1) of section
  858  212.05, Florida Statutes, is amended to read:
  859         212.05 Sales, storage, use tax.—It is hereby declared to be
  860  the legislative intent that every person is exercising a taxable
  861  privilege who engages in the business of selling tangible
  862  personal property at retail in this state, including the
  863  business of making mail order sales, or who rents or furnishes
  864  any of the things or services taxable under this chapter, or who
  865  stores for use or consumption in this state any item or article
  866  of tangible personal property as defined herein and who leases
  867  or rents such property within the state.
  868         (1) For the exercise of such privilege, a tax is levied on
  869  each taxable transaction or incident, which tax is due and
  870  payable as follows:
  871         (e)1. At the rate of 6 percent on charges for:
  872         a. Prepaid calling arrangements. The tax on charges for
  873  prepaid calling arrangements shall be collected at the time of
  874  sale and remitted by the selling dealer.
  875         (I) “Prepaid calling arrangement” means the separately
  876  stated retail sale by advance payment of communications services
  877  that must be paid for in advance; that may be used to place or
  878  receive consist exclusively of telephone calls; that are enabled
  879  originated by using an access number, authorization code, or
  880  other means that may be manually, electronically, or otherwise
  881  entered; and that are sold in predetermined units or dollars
  882  whose number declines on a predetermined basis with use in a
  883  known amount.
  884         (II) If the sale or recharge of the prepaid calling
  885  arrangement does not take place at the dealer’s place of
  886  business, it shall be deemed to take place at the customer’s
  887  shipping address or, if no item is shipped, at the customer’s
  888  address or the location associated with the customer’s mobile
  889  telephone number.
  890         (III) The sale or recharge of a prepaid calling arrangement
  891  shall be treated as a sale of tangible personal property for
  892  purposes of this chapter, whether or not a tangible item
  893  evidencing such arrangement is furnished to the purchaser, and
  894  such sale within this state subjects the selling dealer to the
  895  jurisdiction of this state for purposes of this subsection.
  896         b. The installation of telecommunication and telegraphic
  897  equipment.
  898         c. Electrical power or energy, except that the tax rate for
  899  charges for electrical power or energy is 7 percent.
  900         2. The provisions of s. 212.17(3), regarding credit for tax
  901  paid on charges subsequently found to be worthless, shall be
  902  equally applicable to any tax paid under the provisions of this
  903  section on charges for prepaid calling arrangements,
  904  telecommunication or telegraph services, or electric power
  905  subsequently found to be uncollectible. The word “charges” in
  906  this paragraph does not include any excise or similar tax levied
  907  by the Federal Government, any political subdivision of the
  908  state, or any municipality upon the purchase, sale, or recharge
  909  of prepaid calling arrangements or upon the purchase or sale of
  910  telecommunication, television system program, or telegraph
  911  service or electric power, which tax is collected by the seller
  912  from the purchaser.
  913         Section 15. Paragraph (a) of subsection (1) of section
  914  610.118, Florida Statutes, is amended to read:
  915         610.118 Impairment; court-ordered operations.—
  916         (1) If an incumbent cable or video service provider is
  917  required to operate under its existing franchise and is legally
  918  prevented by a lawfully issued order of a court of competent
  919  jurisdiction from exercising its right to terminate its existing
  920  franchise pursuant to the terms of s. 610.105, any
  921  certificateholder providing cable service or video service in
  922  whole or in part within the service area that is the subject of
  923  the incumbent cable or video service provider’s franchise shall,
  924  for as long as the court order remains in effect, comply with
  925  the following franchise terms and conditions as applicable to
  926  the incumbent cable or video service provider in the service
  927  area:
  928         (a) The certificateholder shall pay to the municipality or
  929  county:
  930         1. Any prospective lump-sum or recurring per-subscriber
  931  funding obligations to support public, educational, and
  932  governmental access channels or other prospective franchise
  933  required monetary grants related to public, educational, or
  934  governmental access facilities equipment and capital costs.
  935  Prospective lump-sum payments shall be made on an equivalent
  936  per-subscriber basis calculated as follows: the amount of the
  937  prospective funding obligations divided by the number of
  938  subscribers being served by the incumbent cable service provider
  939  at the time of payment, divided by the number of months
  940  remaining in the incumbent cable or video service provider’s
  941  franchise equals the monthly per subscriber amount to be paid by
  942  the certificateholder until the expiration or termination of the
  943  incumbent cable or video service provider’s franchise; and
  944         2. If the incumbent cable or video service provider is
  945  required to make payments for the funding of an institutional
  946  network, the certificateholder shall pay an amount equal to the
  947  incumbent’s funding obligations but not to exceed 1 percent of
  948  the sales price, as defined in s. 202.11(15) 202.11(13), for the
  949  taxable monthly retail sales of cable or video programming
  950  services the certificateholder received from subscribers in the
  951  affected municipality or county. All definitions and exemptions
  952  under chapter 202 apply in the determination of taxable monthly
  953  retail sales of cable or video programming services.
  954         Section 16. Section 624.105, Florida Statutes, is amended
  955  to read:
  956         624.105 Waiver of customer liability.—Any regulated company
  957  as defined in s. 350.111, any electric utility as defined in s.
  958  366.02(2), any utility as defined in s. 367.021(12) or s.
  959  367.022(2) and (7), and any provider of communications services
  960  as defined in s. 202.11(1) 202.11(2) may charge for and include
  961  an optional waiver of liability provision in their customer
  962  contracts under which the entity agrees to waive all or a
  963  portion of the customer’s liability for service from the entity
  964  for a defined period in the event of the customer’s call to
  965  active military service, death, disability, involuntary
  966  unemployment, qualification for family leave, or similar
  967  qualifying event or condition. Such provisions may not be
  968  effective in the customer’s contract with the entity unless
  969  affirmatively elected by the customer. No such provision shall
  970  constitute insurance so long as the provision is a contract
  971  between the entity and its customer.
  972         Section 17. The following changes made in this act are
  973  intended to be remedial in nature and apply retroactively, but
  974  do not provide a basis for an assessment of any tax not paid or
  975  create a right to a refund or credit of any tax paid before the
  976  general effective date of this act:
  977         (a) The changes made in section 2 of this act to
  978  subsections (9), (11), and (15) of s. 202.11, Florida Statutes;
  979         (b) The changes made in section 7 of this act to s. 202.22,
  980  Florida Statutes; and
  981         (c) The changes made in section 14 of this act to paragraph
  982  (e) of subsection (1) of s. 212.05, Florida Statutes.
  983         Section 18. This act shall take effect July 1, 2012.