By: Van de Putte S.B. No. 1587
 
 
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, only to the extent of the
  sale or provision of the service.
         SECTION 2.  Section 771.032, Health and Safety Code, is
  amended to read as follows:
         Sec. 771.032.  APPLICATION OF SUNSET ACT. (a)  The
  Commission on State Emergency Communications is subject to Chapter
  325, Government Code (Texas Sunset Act). Unless continued in
  existence as provided by that chapter, the commission is abolished
  and this chapter expires September 1, 2011.
         (b)  As part of the Sunset Advisory Commission's review under
  Subsection (a), the Sunset Advisory Commission, in its report to
  the 82nd Legislature, shall include:
               (1)  the effect of the prepaid wireless 9-1-1 emergency
  services fee on revenues collected and the extent to which those
  revenues increased or decreased total revenues attributable to
  wireless telecommunications services; and
               (2)  whether the total of all revenues received from
  9-1-1 services fees adequately fund public safety in this state at
  the time the review is conducted and whether the 9-1-1 services fees
  will continue to adequately fund public safety in future years.
         SECTION 3.  Subsection (d), Section 771.056, Health and
  Safety Code, is amended to read as follows:
         (d)  If the commission approves the plan, it shall allocate
  to the region from the money collected under Sections 771.071,
  771.0711, [and] 771.072, and 771.082 and appropriated to the
  commission the amount that the commission considers appropriate to
  operate 9-1-1 service in the region according to the plan and
  contracts executed under Section 771.078.
         SECTION 4.  Section 771.075, Health and Safety Code, is
  amended to read as follows:
         Sec. 771.075.  USE OF REVENUE. Except as provided by Section
  771.0751, 771.0753, 771.072(e), 771.072(f), [or] 771.073(e), or
  771.082(g), fees and surcharges collected under this subchapter and
  Subchapter D-1 may be used only for planning, development,
  provision, and enhancement of the effectiveness of 9-1-1 service as
  approved by the commission.
         SECTION 5.  Subchapter D, Chapter 771, Health and Safety
  Code, is amended by adding Section 771.0753 to read as follows:
         Sec. 771.0753.  USE OF PREPAID WIRELESS 9-1-1 EMERGENCY
  SERVICES FEE IN CERTAIN COUNTIES. (a)  This section applies only
  to the use of fees and surcharges collected under Subchapter D-1 in:
               (1)  the county that has the highest population within
  a region subject to Subchapter D-1; or
               (2)  a county subject to Subchapter D-1 with a
  population of at least 700,000.
         (b)  In addition to use authorized or required by this
  subchapter, fees collected under Subchapter D-1 may be used for any
  costs considered necessary by the commission and attributable to:
               (1)  designing a 9-1-1 system; or
               (2)  obtaining and maintaining equipment and personnel
  necessary to establish and operate:
                     (A)  a public safety answering point and related
  operations; or
                     (B)  other related answering points and
  operations.
         SECTION 6.  Subsections (a), (d), and (e), Section 771.077,
  Health and Safety Code, are amended to read as follows:
         (a)  The comptroller may establish collection procedures to
  collect past due amounts and may recover the costs of collection
  from a service provider or business service user that fails to
  timely deliver the fees and the equalization surcharge to the
  comptroller. Subtitles A and B, Title 2, Tax Code, apply to the
  administration and collection of amounts by the comptroller under
  this subchapter. Section 771.084 applies to the administration and
  collection of amounts by the comptroller under Subchapter D-1.
         (d)  The comptroller shall:
               (1)  remit to the commission money collected under this
  section for fees provided by Section 771.0711 and associated late
  penalties;
               (2)  deposit to the 9-1-1 services fee account any
  money collected under this section for fees provided by Section
  771.071 and associated late penalties; [and]
               (3)  deposit to the account as authorized by Section
  771.072 any money collected under this section for fees provided by
  Section 771.072 and associated late penalties; and
               (4)  remit to the commission any money collected under
  this section for fees provided by Section 771.082 and associated
  late penalties.
         (e)  The commission shall:
               (1)  deposit or distribute the money remitted under
  Subsection (d)(1) as Section 771.0711 provides for fees received
  under that section; [and]
               (2)  distribute the money remitted under Subsection
  (d)(2) and appropriated to the commission under contracts as
  provided by Section 771.078(b)(1); and
               (3)  deposit or distribute the money remitted under
  Subchapter D-1 as Section 771.082 provides for fees received under
  that section.
         SECTION 7.  Subsection (b), Section 771.078, Health and
  Safety Code, is amended to read as follows:
         (b)  In making contracts under this section, the commission
  shall ensure that each regional planning commission receives money
  for 9-1-1 service in three [two] separately computed amounts as
  provided by this subsection. The commission must provide each
  regional planning commission with:
               (1)  an amount of money equal to the total of the
  revenue from the emergency service fees collected under Section
  771.071 that is deposited in the treasury and appropriated to the
  commission multiplied by a fraction, the numerator of which is the
  amount of those fees collected from the region and the denominator
  of which is the total amount of those fees collected in this state;
  [and]
               (2)  an amount of money equal to the total of the
  revenue from the emergency service fee for wireless
  telecommunications connections under Section 771.0711 that is
  deposited in the treasury and appropriated to the commission
  multiplied by a fraction, the numerator of which is the population
  of the region and the denominator of which is the population of this
  state; and
               (3)  an amount of money equal to the total of the
  revenue from the prepaid wireless 9-1-1 emergency services fee
  under Section 771.082 that is deposited in the treasury and
  appropriated to the commission multiplied by a fraction, the
  numerator of which is the population of the region and the
  denominator of which is the population of this state.
         SECTION 8.  Subsection (b), Section 771.079, Health and
  Safety Code, is amended to read as follows:
         (b)  The account consists of:
               (1)  fees deposited in the fund as provided by Sections
  771.071, [and] 771.0711, and 771.082; and
               (2)  notwithstanding Section 404.071, Government Code,
  all interest attributable to money held in the account.
         SECTION 9.  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:
                     (A)  in predetermined units or dollars, the number
  of which declines with use in a known amount; or
                     (B)  on a time period basis.
               (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 two
  percent of the cost of each prepaid wireless telecommunications
  service purchased, regardless of whether the service was purchased
  in person, by telephone, through the Internet, or by any other
  method. Each service purchased is a separate item for purposes of
  calculating a fee under this subsection.
         (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 transaction would be treated as occurring in
  this state under Section 151.061, 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 under this subchapter. The procedures shall
  substantially conform to procedures for documenting a 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 not greater than 10 percent of collected charges, 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 10 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 10.  This Act takes effect January 1, 2010.