[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1002 Referred in Senate (RFS)]
112th CONGRESS
1st Session
H. R. 1002
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 2, 2011
Received, read twice and referred to the Committee on Finance
_______________________________________________________________________
AN ACT
To restrict any State or local jurisdiction from imposing a new
discriminatory tax on cell phone services, providers, or property.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Wireless Tax Fairness Act of 2011''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) It is appropriate to exercise congressional enforcement
authority under section 5 of the 14th Amendment to the
Constitution of the United States and Congress' plenary power
under article I, section 8, clause 3 of the Constitution of the
United States (commonly known as the ``commerce clause'') in
order to ensure that States and political subdivisions thereof
do not discriminate against providers and consumers of mobile
services by imposing new selective and excessive taxes and
other burdens on such providers and consumers.
(2) In light of the history and pattern of discriminatory
taxation faced by providers and consumers of mobile services,
the prohibitions against and remedies to correct discriminatory
State and local taxation in section 306 of the Railroad
Revitalization and Regulatory Reform Act of 1976 (49 U.S.C.
11501) provide an appropriate analogy for congressional action,
and similar Federal legislative measures are warranted that
will prohibit imposing new discriminatory taxes on providers
and consumers of mobile services and that will assure an
effective, uniform remedy.
SEC. 3. MORATORIUM.
(a) In General.--No State or local jurisdiction shall impose a new
discriminatory tax on or with respect to mobile services, mobile
service providers, or mobile service property, during the 5-year period
beginning on the date of enactment of this Act.
(b) Definitions.--In this Act:
(1) Mobile service.--The term ``mobile service'' means
commercial mobile radio service, as such term is defined in
section 20.3 of title 47, Code of Federal Regulations, as in
effect on the date of enactment of this Act, or any other
service that is primarily intended for receipt on, transmission
from, or use with a mobile telephone or other mobile device,
including but not limited to the receipt of a digital good.
(2) Mobile service property.--The term ``mobile service
property'' means all property used by a mobile service provider
in connection with its business of providing mobile services,
whether real, personal, tangible, or intangible (including
goodwill, licenses, customer lists, and other similar
intangible property associated with such business).
(3) Mobile service provider.--The term ``mobile service
provider'' means any entity that sells or provides mobile
services, but only to the extent that such entity sells or
provides mobile services.
(4) New discriminatory tax.--The term ``new discriminatory
tax'' means a tax imposed by a State or local jurisdiction that
is imposed on or with respect to, or is measured by, the
charges, receipts, or revenues from or value of--
(A) a mobile service and is not generally imposed,
or is generally imposed at a lower rate, on or with
respect to, or measured by, the charges, receipts, or
revenues from other services or transactions involving
tangible personal property;
(B) a mobile service provider and is not generally
imposed, or is generally imposed at a lower rate, on
other persons that are engaged in businesses other than
the provision of mobile services; or
(C) a mobile service property and is not generally
imposed, or is generally imposed at a lower rate, on or
with respect to, or measured by the value of, other
property that is devoted to a commercial or industrial
use and subject to a property tax levy, except public
utility property owned by a public utility subject to
rate of return regulation by a State or Federal
regulatory authority;
unless such tax was imposed and actually enforced on mobile
services, mobile service providers, or mobile service property
prior to the date of enactment of this Act.
(5) State or local jurisdiction.--The term ``State or local
jurisdiction'' means any of the several States, the District of
Columbia, any territory or possession of the United States, a
political subdivision of any State, territory, or possession,
or any governmental entity or person acting on behalf of such
State, territory, possession, or subdivision that has the
authority to assess, impose, levy, or collect taxes or fees.
(6) Tax.--
(A) In general.--The term ``tax'' means a charge
imposed by a governmental entity for the purpose of
generating revenues for governmental purposes, and
excludes a fee imposed on a particular entity or class
of entities for a specific privilege, service, or
benefit conferred exclusively on such entity or class
of entities.
(B) Exclusion.--The term ``tax'' does not include
any fee or charge--
(i) used to preserve and advance Federal
universal service or similar State programs
authorized by section 254 of the Communications
Act of 1934 (47 U.S.C. 254); or
(ii) specifically dedicated by a State or
local jurisdiction for the support of E-911
communications systems.
(c) Rules of Construction.--
(1) Determination.--For purposes of subsection (b)(4), all
taxes, tax rates, exemptions, deductions, credits, incentives,
exclusions, and other similar factors shall be taken into
account in determining whether a tax is a new discriminatory
tax.
(2) Application of principles.--Except as otherwise
provided in this Act, in determining whether a tax on mobile
service property is a new discriminatory tax for purposes of
subsection (b)(4)(C), principles similar to those set forth in
section 306 of the Railroad Revitalization and Regulatory
Reform Act of 1976 (49 U.S.C. 11501) shall apply.
(3) Exclusions.--Notwithstanding any other provision of
this Act--
(A) the term ``generally imposed'' as used in
subsection (b)(4) shall not apply to any tax imposed
only on--
(i) specific services;
(ii) specific industries or business
segments; or
(iii) specific types of property; and
(B) the term ``new discriminatory tax'' shall not
include a new tax or the modification of an existing
tax that either--
(i)(I) replaces one or more taxes that had
been imposed on mobile services, mobile service
providers, or mobile service property; and
(II) is designed so that, based on
information available at the time of the
enactment of such new tax or such modification,
the amount of tax revenues generated thereby
with respect to such mobile services, mobile
service providers, or mobile service property
is reasonably expected to not exceed the amount
of tax revenues that would have been generated
by the respective replaced tax or taxes with
respect to such mobile services, mobile service
providers, or mobile service property; or
(ii) is a local jurisdiction tax that may
not be imposed without voter approval, provides
for at least 90 days' prior notice to mobile
service providers, and is required by law to be
collected from mobile service customers.
SEC. 4. ENFORCEMENT.
Notwithstanding any provision of section 1341 of title 28, United
States Code, or the constitution or laws of any State, the district
courts of the United States shall have jurisdiction, without regard to
amount in controversy or citizenship of the parties, to grant such
mandatory or prohibitive injunctive relief, interim equitable relief,
and declaratory judgments as may be necessary to prevent, restrain, or
terminate any acts in violation of this Act.
(1) Jurisdiction.--Such jurisdiction shall not be exclusive
of the jurisdiction which any Federal or State court may have
in the absence of this section.
(2) Burden of proof.--The burden of proof in any proceeding
brought under this Act shall be upon the party seeking relief
and shall be by a preponderance of the evidence on all issues
of fact.
(3) Relief.--In granting relief against a tax which is
discriminatory or excessive under this Act with respect to tax
rate or amount only, the court shall prevent, restrain, or
terminate the imposition, levy, or collection of not more than
the discriminatory or excessive portion of the tax as
determined by the court.
SEC. 5. GAO STUDY.
(a) Study.--The Comptroller General of the United States shall
conduct a study, throughout the 5-year period beginning on the date of
the enactment of this Act, to determine--
(1) how, and the extent to which, taxes imposed by local
and State jurisdictions on mobile services, mobile service
providers, or mobile property, impact the costs consumers pay
for mobile services; and
(2) the extent to which the moratorium on discriminatory
mobile services taxes established in this Act has any impact on
the costs consumers pay for mobile services.
(b) Report.--Not later than 6 years after the date of the enactment
of this Act, the Comptroller General shall submit, to the Committee on
the Judiciary of the House of Representatives and Committee on the
Judiciary of the Senate, a report containing the results of the study
required subsection (a) and shall include in such report
recommendations for any changes to laws and regulations relating to
such results.
Passed the House of Representatives November 1, 2011.
Attest:
KAREN L. HAAS,
Clerk.