By: Van de Putte S.B. No. 1587
(In the Senate - Filed March 10, 2009; March 17, 2009, read
first time and referred to Committee on Business and Commerce;
April 14, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; April 14, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1587 By: Van de Putte
A BILL TO BE ENTITLED
AN ACT
relating to a uniform and statewide 9-1-1 emergency services fee on
the retail sale of prepaid wireless telecommunications services to
consumers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subdivision (12), Section 771.001, Health and
Safety Code, is amended to read as follows:
(12) "Wireless service provider" means a provider of
commercial mobile service under Section 332(d), Federal
Telecommunications Act of 1996 (47 U.S.C. Section 151 et seq.),
Federal Communications Commission rules, and the Omnibus Budget
Reconciliation Act of 1993 (Pub. L. No. 103-66), and includes a
provider of wireless two-way communication service,
radio-telephone communications related to cellular telephone
service, network radio access lines or the equivalent, and personal
communication service. The term does not include a provider of:
(A) a service whose users do not have access to
9-1-1 service;
(B) a communication channel used only for data
transmission;
(C) a wireless roaming service or other nonlocal
radio access line service; [or]
(D) a private telecommunications service; or
(E) a prepaid wireless telecommunications
service, as defined by Section 771.081.
SECTION 2. Chapter 771, Health and Safety Code, is amended
by adding Subchapter D-1 to read as follows:
SUBCHAPTER D-1. PREPAID WIRELESS 9-1-1 EMERGENCY SERVICES FEE
Sec. 771.081. DEFINITIONS. In this subchapter:
(1) "Consumer" means a person who purchases prepaid
wireless telecommunications service in a retail transaction.
(2) "Prepaid wireless 9-1-1 emergency services fee"
means the fee a seller collects from a consumer in the amount
required under Section 771.082.
(3) "Prepaid wireless telecommunications service"
means a wireless telecommunications service that allows a caller to
access 9-1-1 emergency communications services that is paid for in
advance at the time of purchase and that is sold in predetermined
units or dollars, the number of which declines with use in a known
amount.
(4) "Retail transaction" means an individual purchase
of a prepaid wireless telecommunications service from a seller for
any purpose other than resale.
(5) "Seller" means a person who sells prepaid wireless
telecommunications service to any person. The term includes
"seller" and "retailer" as defined by Section 151.008, Tax Code.
(6) "Wireless telecommunications service" means
commercial mobile radio service as defined by 47 C.F.R. Section
20.3.
Sec. 771.082. PREPAID WIRELESS 9-1-1 EMERGENCY SERVICES
FEE. (a) A prepaid wireless 9-1-1 emergency services fee shall be
collected by the seller from the consumer at the time of and with
respect to each retail transaction of prepaid wireless
telecommunications service occurring in this state. The amount of
the prepaid wireless 9-1-1 emergency services fee shall be either
separately stated on an invoice, receipt, or other similar document
that is provided to the consumer by the seller or otherwise
disclosed to the consumer by the seller.
(b) The prepaid wireless 9-1-1 emergency services fee is 50
cents per retail transaction.
(c) For purposes of Subsection (a), a retail transaction
that is effected in person by a consumer at a business location of
the seller shall be treated as occurring in this state if that
business location is in this state. Any other retail transaction,
including a transaction over the Internet or via telecommunications
service, shall be treated as occurring in this state for purposes of
Subsection (a) if the retail transaction would be treated as
occurring in this state under Chapter 151, Tax Code.
(d) The prepaid wireless 9-1-1 emergency services fee is the
liability of the consumer and not of the seller or of any provider,
except that the seller shall be liable to remit all prepaid wireless
service fees that the seller collects from consumers as provided by
Section 771.084, including all such charges that the seller is
deemed to collect where the amount of the charge has not been
separately stated on an invoice, receipt, or other similar document
provided to the consumer by the seller.
(e) The fee imposed under this subchapter is in addition to
the taxes imposed under Chapter 151, Tax Code.
(f) The amount of the prepaid wireless 9-1-1 emergency
services fee that is collected by a seller from a consumer, whether
or not such amount is separately stated on an invoice, receipt, or
other similar document provided to the consumer by the seller,
shall not be included in the base for measuring any tax, fee,
surcharge, or other charge that is imposed by this state, any
political subdivision of this state, or any intergovernmental
agency.
(g) A seller may deduct and retain one percent of prepaid
wireless 9-1-1 emergency services fees that it collects to offset
its costs in administering this fee.
Sec. 771.083. EXCEPTIONS TO APPLICABILITY OF CHAPTER AND
LIMITATIONS OF LIABILITY. (a) The comptroller shall establish
procedures for a seller to document that a sale is not a retail
transaction. The procedures shall substantially conform to
procedures for documenting sale for resale under Chapter 151, Tax
Code.
(b) A provider or seller of prepaid wireless
telecommunications service is not liable for damages to any person
resulting from or incurred in connection with the provision of, or
the failure to provide, 9-1-1 emergency service, or for identifying
or failing to identify the telephone number, address, location, or
name associated with any person or device that is accessing or
attempting to access 9-1-1 emergency service, unless the act or
omission proximately causing the claim, damage, or loss constitutes
gross negligence, recklessness, or intentional misconduct.
(c) A provider or seller of prepaid wireless
telecommunications service is not liable for damages to any person
resulting from or incurred in connection with the provision of any
lawful assistance to any investigative or law enforcement officer
of the United States, this or any other state, or any political
subdivision of this or any other state in connection with any lawful
investigation or other law enforcement activity by such
investigative or law enforcement officer unless the act or omission
proximately causing the claim, damage, or loss constitutes gross
negligence, recklessness, or intentional misconduct.
(d) Information that a provider or seller of prepaid
wireless telecommunications service is required to furnish to a
governmental entity in providing or selling 9-1-1 emergency service
is confidential and exempt from disclosure under Chapter 552,
Government Code. A provider or seller of prepaid wireless
telecommunications service is not liable to any person who uses a
9-1-1 emergency service created under this chapter for the release
of information furnished by the provider or seller of prepaid
wireless telecommunications service in providing or selling 9-1-1
emergency service. Information that is confidential under this
section may be released only for budgetary calculation purposes and
only in aggregate form so that no provider-specific or
seller-specific information may be extrapolated.
(e) In addition to the exemption from liability provided by
Subsections (b), (c), and (d), each provider and seller of prepaid
wireless telecommunications service is entitled to any other
exemption from liability under this chapter, if any, that is
provided to wireless service providers.
Sec. 771.084. APPLICATION OF PROVISIONS OF TAX CODE.
Except as otherwise provided by this subchapter:
(1) the fee imposed by this subchapter is
administered, imposed, collected, and enforced in the same manner
as a tax under Chapter 151, Tax Code, is administered, imposed,
collected, and enforced; and
(2) the provisions applicable to the sales tax imposed
under Subchapter C, Chapter 151, Tax Code, apply to the fee imposed
by this subchapter.
Sec. 771.085. ALLOCATION OF FEE. (a) After deducting an
amount equal to two percent of collected charges, to be retained by
the comptroller as reimbursement for the costs of administering the
collection and remittance of prepaid wireless 9-1-1 emergency
services fees, and deducting an amount of up to 13 percent of the
collected fees, as determined under Subsection (c), the comptroller
shall deposit the money from the fees imposed by this subchapter,
other than penalties and interest, to the credit of the 9-1-1
services fee account in the general revenue fund. Until deposited
to the credit of the 9-1-1 services fee account as required by
Subsection (b), money the comptroller collects under this
subchapter remains in a trust fund with the state treasury.
(b) Money collected under this subchapter may be used only
for services related to 9-1-1 and emergency services, including
automatic number identification and automatic location information
services. Not later than the 15th day after the last day of the
month in which the money is collected, the commission shall
distribute to each emergency communication district that does not
participate in the state system a portion of the money that bears
the same proportion to the total amount collected that the
population in the area served by the district bears to the
population of the state. The remaining money collected under this
subchapter shall be deposited to the 9-1-1 services fee account in
the general revenue fund.
(c) The commission shall annually determine by rule the
percentage of collected charges, not to exceed 13 percent, that
under Subsection (a) shall be deducted by the comptroller and
allocated as if collected under Section 771.072.
Sec. 771.086. EXCLUSIVITY AND APPLICABILITY OF PREPAID
WIRELESS 9-1-1 EMERGENCY SERVICES FEE. (a) The prepaid wireless
emergency services fee shall be the only 9-1-1 funding obligation
imposed with respect to prepaid wireless telecommunications
service in this state, and no tax, fee, surcharge, or other charge
shall be imposed by this state, any political subdivision of this
state, or any intergovernmental agency, for 9-1-1 funding purposes,
on any provider, seller, or consumer with respect to the sale,
purchase, use, or provision of prepaid wireless telecommunications
service.
(b) The emergency service fee for wireless
telecommunications connections under Section 771.0711 applies to
wireless telecommunications service that is not subject to the
prepaid wireless 9-1-1 emergency services fee under this
subchapter.
SECTION 3. This Act takes effect January 1, 2010.
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