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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