HB 1086-8_ Filed 02/23/2010, 09:35 Hershman
SENATE MOTION
MADAM PRESIDENT:
I move
that Engrossed House Bill 1086 be amended to read as follows:
SOURCE: Page 43, line 40; (10)MO108625.43. -->
Page 43, between lines 40 and 41, begin a new paragraph and insert:
SOURCE: IC 34-30-2-156.2; (10)MO108625.37. -->
"SECTION 37. IC 34-30-2-156.2 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2010]: Sec. 156.2. IC 36-8-16.6-18
(Concerning sellers of prepaid wireless telecommunications service
for provision of 911 or wireless 911 service and lawful assistance
to law enforcement officers).
SOURCE: IC 36-8-16.5-14.5; (10)MO108625.38. -->
SECTION 38. IC 36-8-16.5-14.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 14.5. As used in this
chapter, "prepaid subscriber" refers to a CMRS subscriber who pays in
full prospectively for the service and is issued an Indiana telephone
number or an Indiana identification number for the service. user" has
the meaning set forth in IC 36-8-16.6-5.
SOURCE: IC 36-8-16.5-14.7; (10)MO108625.39. -->
SECTION 39. IC 36-8-16.5-14.7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 14.7. As used in this
chapter, "standard subscriber" user" or "user" refers to a CMRS
subscriber user who pays retrospectively for the service and has an
Indiana billing address for the service.
SOURCE: IC 36-8-16.5-22; (10)MO108625.40. -->
SECTION 40. IC 36-8-16.5-22 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 22. The fund consists
of the following:
(1) Service charges assessed on CMRS users in the state under
section 25.5 of this chapter.
(2) Appropriations made by the general assembly.
(3) Grants and gifts intended for deposit in the fund.
(4) Interest, premiums, gains, or other earnings on the fund.
(5) Enhanced prepaid wireless charges collected and remitted
under IC 36-8-16.6-11.
SOURCE: IC 36-8-16.5-25.5; (10)MO108625.41. -->
SECTION 41. IC 36-8-16.5-25.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 25.5. (a) As used in this
section, "customer" and "place of primary use" have the meanings set
forth in IC 6-8.1-15.
(b) Except as provided in section 34 of this chapter, the board shall
assess a monthly wireless emergency enhanced 911 fee on each CMRS
subscriber standard user that is a customer having a place of primary
use in Indiana. A customer's place of primary use shall be determined
in the manner provided by IC 6-8.1-15.
(c) The fee assessed under subsection (b) does not apply to a
prepaid user in a retail transaction under IC 36-8-16.6.
SOURCE: IC 36-8-16.5-29; (10)MO108625.42. -->
SECTION 42. IC 36-8-16.5-29 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 29. An additional fee
relating to the provision of wireless 911 service may not be levied by
a state agency or local unit of government. An enhanced prepaid
wireless charge (as defined in IC 36-8-16.6-3) is not considered an
additional fee relating to the provision of wireless 911 service for
purposes of this section.
SOURCE: IC 36-8-16.5-30.5; (10)MO108625.43. -->
SECTION 43. IC 36-8-16.5-30.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 30.5. (a) As used in this
section, "customer" and "place of primary use" have the meanings set
forth in IC 6-8.1-15.
(b) Except as provided in section 34 of this chapter, each a CMRS
provider shall, as part of its normal monthly billing process, collect
the wireless emergency enhanced 911 fee assessed under section 25.5
of this chapter as follows (1) As part of its normal monthly billing
process, a CMRS provider shall collect the fee from each standard
subscriber user that is a customer having a place of primary use in
Indiana and may list the fee as a separate line item on each bill. A
customer's place of primary use shall be determined in the manner
provided by IC 6-8.1-15. If a CMRS provider receives a partial
payment for a monthly bill from a CMRS standard subscriber, user, the
CMRS provider shall apply the payment against the amount the CMRS
standard subscriber user owes to the CMRS provider before applying
the payment against the fee.
(2) A CMRS provider shall collect and remit to the board under
section 36 of this chapter fees from its prepaid subscribers in a
total amount equal to the fee amount multiplied by the number of
active prepaid subscriber accounts on the last day of each
calendar month.
(c) This section does not apply to a prepaid user.
SOURCE: IC 36-8-16.5-31; (10)MO108625.44. -->
SECTION 44 IC 36-8-16.5-31 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 31. A CMRS provider,
as part of its monthly billing process, may not pro-rate the monthly
wireless emergency enhanced 911 fee collected from the subscriber. a
standard user.
SOURCE: IC 36-8-16.5-32; (10)MO108625.45. -->
SECTION 45. IC 36-8-16.5-32 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 32. A CMRS provider
is not required to take legal action to enforce the collection of the
wireless emergency enhanced 911 fee for which a subscriber user is
billed. However, a collection action may be initiated by the board. A
court finding for the board in the action may award reasonable costs
and attorney's fees associated with the collection action.
SOURCE: IC 36-8-16.5-34; (10)MO108625.46. -->
SECTION 46. IC 36-8-16.5-34 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 34. A CMRS number
is exempt from the wireless emergency enhanced 911 fee if the
subscriber user is any of the following:
(1) The federal government or an agency of the federal
government.
(2) The state or an agency or instrumentality of the state.
(3) A political subdivision (as defined in IC 36-1-2-13) or an
agency of a political subdivision.
SOURCE: IC 36-8-16.5-35; (10)MO108625.47. -->
SECTION 47. IC 36-8-16.5-35, AS AMENDED BY P.L.146-2005,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 35. A CMRS provider may keep seven tenths of
a cent ($0.007) of the wireless emergency enhanced 911 fee collected
each month from each subscriber user for the purpose of defraying the
administrative costs of collecting the fee.
SOURCE: IC 36-8-16.5-39; (10)MO108625.48. -->
SECTION 48. IC 36-8-16.5-39, AS AMENDED BY P.L.146-2005,
SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]: Sec. 39. (a) Except as provided by section 26 of this
chapter and subsections (b) and (c), the fund must be managed in the
following manner:
(1) Three cents ($0.03) of the wireless emergency 911 fee
collected from each
subscriber user must be deposited in an
escrow account to be used to reimburse:
(A) CMRS providers, PSAPs, and the board for costs
associated with implementation of phase two (2) of the FCC
order; and
(B) the board for costs associated with other wireless enhanced
911 services mandated by the FCC and specified in the FCC
order but not incurred by CMRS providers or PSAPs.
A CMRS provider or a PSAP may recover costs under this
chapter if the costs are incurred before July 1, 2005, and invoiced
to the board not later than December 31, 2005. The board may
invest money in the account in the manner prescribed by section
23 of this chapter and may use the proceeds of the investments to
reimburse CMRS providers and PSAPs under this subdivision.
(2) At least twenty-five cents ($0.25) of the wireless emergency
911 fee collected from each
subscriber user must be deposited in
an escrow account and used to reimburse CMRS providers for the
actual costs incurred by the CMRS providers before July 1, 2005,
in complying with the wireless 911 requirements established by
the FCC order and rules that are adopted by the FCC under the
FCC order, including costs and expenses incurred in designing,
upgrading, purchasing, leasing, programming, installing, testing,
or maintaining all necessary data, hardware, and software
required to provide service as well as the costs of operating the
service. The board may invest money in the account in the manner
prescribed by section 23 of this chapter and may use the proceeds
of the investments to reimburse CMRS providers under this
subdivision. The CMRS provider may only request funds for true
cost recovery. The board may increase the amount held in escrow
under this subdivision not more than one (1) time a calendar year.
If the board adjusts the wireless emergency 911 fee under section
26(a) of this chapter within a calendar year, an adjustment to the
amount held in escrow under this subdivision for the calendar
year must be made at that time.
(3) Two percent (2%) of the wireless emergency 911 fee collected
from each subscriber user may be used by the board to recover
the board's expenses in administering this chapter. However, the
board may increase this percentage at the time the board may
adjust the monthly fee assessed against each subscriber user to
allow for full recovery of administration expenses.
(4) The remainder of the wireless emergency 911 fee collected
from each subscriber user must be distributed in the following
manner:
(A) The board shall distribute on a monthly basis to each
county containing one (1) or more eligible PSAPs, as
identified by the county in the notice required under section 40
of this chapter, a part of the remainder based upon the county's
percentage of the state's population (as reported in the most
recent official United States census). A county must use a
distribution received under this clause to make distributions to
PSAPs that:
(i) are identified by the county under section 40 of this
chapter as eligible for distributions; and
(ii) accept wireless enhanced 911 service;
for actual costs incurred by the PSAPs in complying with the
wireless enhanced 911 requirements established by the FCC
order and rules.
(B) The amount of the fee remaining, if any, after the
distributions required under clause (A) must be distributed in
equal shares between the escrow accounts established under
subdivisions (1) and (2).
(b) Notwithstanding the requirements described in subsection (a),
the board may transfer money between and among the accounts in
subsection (a) in accordance with the following procedures:
(1) For purposes of acting under this subsection, the board must
have a quorum consisting of at least one (1) member appointed
under section 18(c)(2) of this chapter and at least one (1) member
appointed under section 18(c)(3) of this chapter.
(2) A transfer under this subsection must be approved by the
affirmative vote of:
(A) at least fifty percent (50%) of the members present at a
duly called meeting of the board who are appointed under
section 18(c)(2) of this chapter; and
(B) at least fifty percent (50%) of the members present at a
duly called meeting of the board who are appointed under
section 18(c)(3) of this chapter.
(3) The board may make transfers only one (1) time during a
calendar year.
(4) The board may not make a transfer that:
(A) impairs cost recovery by CMRS providers or PSAPs; or
(B) impairs the ability of the board to fulfill its management
and administrative obligations described in this chapter.
(c) If all CMRS providers have been reimbursed for their costs
under this chapter, and the fee has been reduced under section 26(c) of
this chapter, the board shall manage the fund in the following manner:
(1) One cent ($0.01) of the wireless emergency 911 fee collected
from each subscriber user may be used by the board to recover
the board's expenses in administering this chapter. However, the
board may increase this amount at the time the board may adjust
the monthly fee assessed against each subscriber user to allow for
full recovery of administration expenses.
(2) Thirty-eight and three tenths cents ($0.383) of the wireless
emergency 911 fee collected from each subscriber user must be
distributed to each county containing at least one (1) PSAP, as
identified in the county notice required by section 40 of this
chapter. The board shall make these distributions in the following
manner:
(A) The board shall distribute on a monthly basis to each
eligible county thirty-four and four tenths cents ($0.344) of the
wireless emergency 911 fee based upon the county's
percentage of the state's population.
(B) The board shall distribute on a monthly basis to each
eligible county three and nine tenths cents ($0.039) of the
wireless emergency 911 fee equally among the eligible
counties. A county must use a distribution received under this
clause to reimburse PSAPs that:
(i) are identified by the county under section 40 of this
chapter as eligible for distributions; and
(ii) accept wireless enhanced 911 service;
for actual costs incurred by the PSAPs in complying with the
wireless enhanced 911 requirements established by the FCC
order and rules.
(C) The board shall deposit the remainder of the wireless
emergency 911 fee collected from each
subscriber user into an
escrow account to be used for costs associated with other
wireless enhanced 911 services mandated by the FCC and
specified in the FCC order but not incurred by PSAPs. The
board may invest money in the account in the manner
prescribed by section 23 of this chapter and may use the
proceeds of the investments for costs associated with other
wireless enhanced 911 services mandated by the FCC but not
specified in the FCC order or to make distributions to PSAPs
under this section.
(3) If the fee has been reduced under section 26(c) of this chapter,
the board shall determine how money remaining in the accounts
or money for uses described in subsection (a) is to be allocated
into the accounts described in this subsection or used for
distributions under this subsection.
This subsection does not affect the transfer provisions set forth in
subsection (b).
SOURCE: IC 36-8-16.5-45; (10)MO108625.49. -->
SECTION 49. IC 36-8-16.5-45 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 45. (a) All proprietary
information submitted to the board or the treasurer of state is
confidential. Notwithstanding any other law, proprietary information
submitted under this chapter is not subject to subpoena, and proprietary
information submitted under this chapter may not be released to a
person other than to the submitting CMRS provider without the
permission of the submitting CMRS provider.
(b) General information collected by the board or the treasurer of
state may be released or published only in aggregate amounts that do
not identify or allow identification of numbers of subscribers users or
revenues attributable to an individual CMRS provider.
SOURCE: IC 36-8-16.6; (10)MO108625.50. -->
SECTION 50. IC 36-8-16.6 IS ADDED TO THE INDIANA CODE
AS A
NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2010]:
Chapter 16.6. Enhanced Prepaid Wireless Telecommunications
Service Charge
Sec. 1. As used in this chapter, "board" refers to the wireless
enhanced 911 advisory board established by IC 36-8-16.5-18.
Sec. 2. As used in this chapter, "consumer" means a person that
purchases prepaid wireless telecommunications service from a
seller. The term includes a prepaid user.
Sec. 3. As used in this chapter, "enhanced prepaid wireless
charge" means the charge that a seller is required to collect from
a consumer under section 11 of this chapter.
Sec. 4. As used in this chapter, "fund" refers to the wireless
emergency telephone system fund established by
IC 36-8-16.5-21(a).
Sec. 5. As used in this chapter, "prepaid user" refers to a user
of prepaid wireless telecommunications service who:
(1) is issued an Indiana telephone number or an Indiana
identification number for the service; or
(2) purchases prepaid wireless telecommunications service in
a retail transaction that is sourced to Indiana (as determined
under IC 6-2.5-12-16).
Sec. 6. As used in this chapter, "prepaid wireless
telecommunications service" means a prepaid wireless calling
service (as defined in IC 6-2.5-1-22.4) that allows a user of the
service to reach emergency services by dialing the digits nine (9)
one (1) one (1).
Sec. 7. As used in this chapter, "provider" means a person or
entity that offers prepaid wireless telecommunications service.
Sec. 8. As used in this chapter, "retail transaction" means the
purchase of prepaid wireless telecommunications service from a
seller for any purpose other than resale.
Sec. 9. As used in this chapter, "seller" means a person that sells
prepaid wireless telecommunications service to another person.
Sec. 10. (a) The board shall impose an enhanced prepaid
wireless charge on each retail transaction that occurs after June
30, 2010. The amount of the initial charge imposed under this
subsection may not exceed one-half (1/2) of the monthly wireless
emergency enhanced 911 fee assessed under IC 36-8-25.5.
(b) Subject to legislative approval, the board may increase the
enhanced prepaid wireless charge to ensure adequate revenue for
the board to fulfill its duties and obligations under this chapter,
IC 36-8-16, and IC 36-8-16.5.
(c) A consumer that is the federal government or an agency of
the federal government is exempt from the enhanced prepaid
wireless charge imposed under this section.
Sec. 11. (a) A seller shall collect the enhanced prepaid wireless
charge from the consumer with respect to each retail transaction.
(b) The seller shall disclose to the consumer the amount of the
enhanced prepaid wireless charge. The seller may separately state
the amount of the enhanced prepaid wireless charge on an invoice,
a receipt, or a similar document that the seller provides to the
consumer in connection with the retail transaction.
(c) Subject to section 14 of this chapter, a seller shall remit
enhanced prepaid wireless charges to the board at the time and in
the manner prescribed by the board.
Sec. 12. The enhanced prepaid wireless charge is the liability of
the consumer and not of the seller or a provider. However, a seller
is liable to remit to the board all enhanced prepaid wireless
charges that the seller collects from consumers under section 11 of
this chapter, including all charges that the seller is considered 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.
Sec. 13. The amount of the enhanced prepaid wireless charge
that is collected by a seller from a consumer, whether or not
separately stated on an invoice, receipt, or other similar document
provided to the consumer by the seller, may not be included in the
base for determining a tax, fee, surcharge, or other charge that is
imposed by the state, a political subdivision, or any other
governmental agency.
Sec. 14. A seller may deduct and retain one percent (1%) of
enhanced prepaid wireless charges that the seller collects from
consumers to reimburse the direct costs incurred by the seller in
collecting and remitting enhanced prepaid wireless charges.
Sec. 15. (a) A seller is subject to the same audit and appeal
procedures with respect to the collection and remittance of
enhanced prepaid wireless charges as with collection and
remittance of the state gross retail tax under IC 6-2.5.
(b) An audit under subsection (a) must be conducted jointly by
the department of state revenue and the board.
Sec. 16. (a) The board, in conjunction and coordination with the
department of state revenue, shall establish procedures:
(1) governing the collection and remittance of enhanced
prepaid wireless charges in accordance with the procedures
established under IC 6-2.5 concerning the collection and
remittance of the state gross retail tax; and
(2) allowing a seller to document that a sale of prepaid
wireless telecommunications service is not a retail transaction.
(b) A procedure established under subsection (a)(1):
(1) must take into consideration the differences between large
and small sellers, including smaller sales volumes; and
(2) may establish lower thresholds for the remittance of
enhanced prepaid wireless charges by small sellers.
For purposes of this subsection, a small seller is a seller that sells
less than one hundred dollars ($100) of prepaid wireless
telecommunications service each month.
Sec. 17. The board shall deposit all remitted enhanced prepaid
wireless charges in the fund. The board shall administer money
deposited in the fund under this subsection in the same manner as
wireless emergency enhanced 911 fees assessed under
IC 36-8-16.5-25.5.
Sec. 18. A seller of prepaid wireless telecommunications service
is not liable for damages to a person resulting from or incurred in
connection with the following:
(1) Providing or failing to provide 911 or wireless 911
services.
(2) Identifying or failing to identify the telephone number,
address, location, or name associated with a person or device
that accesses or attempts to access 911 or wireless 911 service.
(3) Providing lawful assistance to an investigative or law
enforcement officer of the United States, a state, or a political
subdivision of a state in connection with a lawful investigation
or other law enforcement activity by the law enforcement
officer.
Sec. 19. (a) An additional fee relating to the provision of wireless
911 service with respect to prepaid wireless telecommunications
service may not be levied by a state agency or local unit of
government.
(b) The enhanced prepaid wireless charge imposed by section 11
of this chapter is not considered an additional charge relating to
the provision of wireless 911 service for purposes of
IC 36-8-16.5-29.
Sec. 20. The following are not required to take legal action to
enforce the collection of an enhanced wireless 911 charge that is
imposed on a consumer:
(1) A provider.
(2) A seller.
However, the board may initiate a collection action. A court
finding for the board in the action may award reasonable costs and
attorney's fees associated with the collection action.".
SOURCE: Page 46, line 14; (10)MO108625.46. -->
Page 46, between lines 14 and 15, begin a new paragraph and insert:
SOURCE: IC 36-8-16.5-14; (10)MO108625.57. -->
"SECTION 57. IC 36-8-16.5-14 IS REPEALED [EFFECTIVE
JULY 1, 2010].".
Renumber all SECTIONS consecutively.
(Reference is to EHB 1086 as printed February 19, 2010.)
________________________________________
Senator HERSHMAN