[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1192 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 1192

    To restrict any State or local jurisdiction from imposing a new 
    discriminatory tax on mobile wireless communications services, 
                        providers, or property.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 4, 2009

  Mr. Wyden (for himself, Ms. Snowe, Mrs. Murray, Mr. Menendez, Mrs. 
Gillibrand, Mr. Ensign, and Mr. McCain) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
    To restrict any State or local jurisdiction from imposing a new 
    discriminatory tax on mobile wireless communications 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 ``Mobile Wireless Tax Fairness Act of 
2009''.

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 the 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 the enactment of this Act, or any other 
        service that is primarily intended for receipt on, transmission 
        from, or use with a mobile telecommunications device, including 
        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 and includes 
        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 with respect to the portion of such entity's 
        trade or business that sells or provides such services.
            (4) New discriminatory tax.--The term ``new discriminatory 
        tax'' means any tax imposed by a State or local jurisdiction 
        that--
                    (A) is imposed on or with respect to, or is 
                measured by the charges, receipts, or revenues from or 
                value of--
                            (i) any 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;
                            (ii) any 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
                            (iii) any 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; and
                    (B) was not generally imposed and actually enforced 
                on mobile services, mobile service providers, or mobile 
                service property prior to the date of the 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 and with the 
        authority to assess, impose, levy, or collect taxes or fees.
            (6) Tax.--
                    (A) In general.--The term ``tax'' means any charge 
                imposed by any governmental entity for the purpose of 
                generating revenues for governmental purposes, and is 
                not a fee imposed on an individual 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)(A)(iii), 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--
                            (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 not to 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.

SEC. 4. ENFORCEMENT.

    (a) In General.--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, 
provided that:
            (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.
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