[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 543 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 543

    To restrict any State or local jurisdiction from imposing a new 
   discriminatory tax on cell phone services, providers, or property.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 10, 2011

  Mr. Wyden (for himself, Ms. Snowe, Mrs. Gillibrand, Mr. McCain, Mr. 
 Menendez, Mr. Ensign, Mr. Nelson of Florida, and Mr. Burr) 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 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)(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 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.

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.
                                 <all>