[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                     CELL TAX FAIRNESS ACT OF 2008

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 5793

                               __________

                           SEPTEMBER 18, 2008

                               __________

                           Serial No. 110-209

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

           Subcommittee on Commercial and Administrative Law

                LINDA T. SANCHEZ, California, Chairwoman

JOHN CONYERS, Jr., Michigan          CHRIS CANNON, Utah
HANK JOHNSON, Georgia                JIM JORDAN, Ohio
ZOE LOFGREN, California              RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts   TOM FEENEY, Florida
MELVIN L. WATT, North Carolina       TRENT FRANKS, Arizona
STEVE COHEN, Tennessee

                     Michone Johnson, Chief Counsel

                    Daniel Flores, Minority Counsel


                            C O N T E N T S

                              ----------                              

                           SEPTEMBER 18, 2008

                                                                   Page

                                THE BILL

H.R. 5793, the ``Cell Tax Fairness Act of 2008''.................     3

                           OPENING STATEMENTS

The Honorable Linda T. Sanchez, a Representative in Congress from 
  the State of California, and Chairwoman, Subcommittee on 
  Commercial and Administrative Law..............................     1
The Honorable Chris Cannon, a Representative in Congress from the 
  State of Utah, and Ranking Member, Subcommittee on Commercial 
  and Administrative Law.........................................    10
The Honorable Zoe Lofgren, a Representative in Congress from the 
  State of California, and Member, Subcommittee on Commercial and 
  Administrative Law.............................................    11

                               WITNESSES

Ms. Gail W. Mahoney, Commissioner, Jackson County, Michigan, 
  Jackson, MI, on behalf of the National Association of Counties
  Oral Testimony.................................................    19
  Prepared Statement.............................................    22
The Honorable James F. Clayborne, Jr., Illinois State Senator, 
  Belleville, IL
  Oral Testimony.................................................    25
  Prepared Statement.............................................    27
Scott R. Mackey, Esquire, Kimbell Sherman Ellis, Montpelier, VT
  Oral Testimony.................................................    31
  Prepared Statement.............................................    33
Tillman L. Lay, Esquire, Spiegel & McDiarmid, LLP, Washington, 
  DC, on behalf of the U.S. Conference of Mayors, the National 
  League of Cities, the Government Finance Officers Association, 
  the National Association of Telecommunications Officers and 
  Administrators
  Oral Testimony.................................................    41
  Prepared Statement.............................................    43

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Letters of Support from the National Black Chamber of Commerce, 
  the Chamber of Commerce of the United States of America, and 
  the National Association of Neighborhoods (NAN)................    13
Prepared Statement of the Honorable Lamar Smith, a Representative 
  in Congress from the State of Texas, and Ranking Member, 
  Committee on the Judiciary.....................................    59
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, 
  Chairman, Committee on the Judiciary, and Member, Subcommittee 
  on Commercial and Administrative Law...........................    60

                                APPENDIX
               Material Submitted for the Hearing Record

Answers to Post-Hearing Questions from Gail W. Mahoney, 
  Commissioner, Jackson County, Michigan, Jackson, MI, on behalf 
  of the National Association of Counties........................    64
Answers to Post-Hearing Questions from the Honorable James 
  Clayborne, Illinois State Senator, Belleville, IL..............    66
Answers to Post-Hearing Questions from Scott Mackey, Esquire, 
  Kimbell Sherman Ellis, Montpelier, VT..........................    67
Answers to Post-Hearing Questions from Tillman L. Lay, Esquire, 
  Spiegel & McDiarmid, LLP, Washington, DC, on behalf of the U.S. 
  Conference of Mayors, the National League of Cities, the 
  Government Finance Officers Association, the National 
  Association of Telecommunications Officers and Administrators..    72


                     CELL TAX FAIRNESS ACT OF 2008

                              ----------                              


                      THURSDAY, SEPTEMBER 18, 2008

              House of Representatives,    
                     Subcommittee on Commercial    
                            and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 1:08 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Linda 
Sanchez (Chairwoman of the Subcommittee) presiding.
    Present: Representatives Sanchez, Lofgren, Watt, Cannon, 
Jordan, and Keller.
    Staff present: Michone Johnson, Majority Chief Counsel; 
Norberto Salinas, Majority Counsel; Adam Russell, Professional 
Staff Member; and Stewart Jeffries, Minority Counsel.
    Ms. Sanchez. The Subcommittee on Commercial and 
Administrative Law will now come to order. Without objection, 
the Chair will be authorized to declare a recess of the 
hearing. And I will now recognize myself for a short statement.
    In a world where text messaging, Internet capability, 
digital music and instant voice communication at the push of a 
button are commonplace, wireless services are becoming more 
prevalent than ever. In fact, over the last decade, the number 
of cell-phone subscribers has quadrupled to over 250 million.
    Not only have wireless phones become required for many 
businesses, but they have also become ingrained in daily life. 
Cellular phones provide a platform for friends to 
instantaneously chat, for businesses to pitch proposals, and 
for those who are in distress due to natural disasters, to make 
emergency contact. Couple these benefits with cell phones' ease 
of use and competitive pricing, and it is no wonder that the 
public has quickly come to rely on them.
    But as the popularity of cell phones has grown, the 
wireless industry maintains that local and State tax rates on 
wireless services have steadily increased. The wireless 
industry has raised pointed concerns that local and State 
governments have disproportionately raised these tax rates and 
fees, when compared to other services and goods.
    State and local governments generally dispute those 
charges. They suggest that they are simply restructuring their 
tax bases, in light of the trend away from landline 
communication. Further, they contend that the tax burden should 
not necessarily be applied evenly across different industries.
    Many types of industries are subject to their own special 
taxes, including not only tobacco and alcohol, but also travel, 
hotels, entertainment, transportation and public utilities.
    Today's legislative hearing will provide us with the 
opportunity to hear testimony on the taxes and fees imposed on 
wireless services and providers. The testimony will also assist 
us in determining whether the tax-and-fee burden is truly 
unfair, and not justifiable.
    Additionally, we will examine H.R. 5793, the ``Cell Tax 
Fairness Act of 2008,'' which seeks to impose a 5-year 
moratorium on new, discriminatorily imposed taxes and fees on 
wireless services and providers.
    As we hear today's testimony, we must remember to balance 
the competing interests concerning the issues addressed by this 
legislation. As consumers, we want to pay lower taxes and fees 
on our wireless services, but as legislators, we understand 
that State and local governments need revenue to provide the 
services we need and expect from them. Accordingly, I am very 
much looking forward to hearing today's testimony.
    [The bill, H.R. 5793, follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    Ms. Sanchez. At this time, I will now recognize my 
colleague, Mr. Cannon, the Ranking Member of this Subcommittee, 
and the lead Republican co-sponsor of the legislation, for his 
opening remarks.
    Mr. Cannon. Thank you, Madam Chair. It is a pleasure to be 
here today.
    And I would like to thank the witnesses for joining us at 
this hearing.
    The Chair may recall that, at the markup of the State Video 
Tax Fairness Act in July, I requested that we hold one final 
hearing on H.R. 5793, the ``Cell Tax Fairness Act of 2008,'' 
which was introduced by the gentlelady from California, Ms. 
Lofgren, who is with us, here, today.
    At the time that I asked for the hearing, the bill had 75 
co-sponsors, including 12 Members of the Judiciary Committee. 
Today, there are 130 co-sponsors, including 15 Members of the 
Judiciary Committee. And, hopefully, when this bill comes up 
for markup in the 111th Congress, we will have a majority of 
the House as co-sponsors.
    As you know, I am one of the 130 co-sponsors, and I support 
this legislation because it is my belief that States and 
localities unfairly burden phone consumers with excess taxes. 
In my home, for instance, when my home phone rings, nobody 
answers it, because all my kids know that if the call was for 
them, it would be on their cell phone. And I know the same darn 
thing.
    So I occasionally answer the phone. And what do I end up 
doing? Talking to people that want to talk to my wife, who 
hasn't quite--well, actually, she does know how to text--but 
she is not quite at the same level as the rest of the family, 
technologically. She does have a cell phone.
    In fact, maybe what I ought to do is start answering by 
saying, ``Yes, my wife's cell-phone number is--do you have a 
pen? Would you like me to text it to you?'' Because, other than 
that--I mean, if I call home, it--it can ring 30 times before 
we get the--in fact, we took off the answering machine because 
nobody would ever listen to the messages.
    So the world has changed. And nationwide, the average tax 
rate on wireless services is now 14.14 percent, which is more 
than double the average sales-tax rate for all businesses, 
which is about 7.04 percent. These tax rates are more in 
keeping with what we call ``sin taxes,'' that is, taxes on 
alcohol and tobacco, than with a general business taxes.
    And, you know, ``sin taxes,'' we sometimes say, ``are taxes 
on the stupid.'' But this is just a plain tax on poor people--
let us say the most regressive tax--among the most regressive 
taxes that we could possibly have, and suggests to the mind 
that when we have the Federal telephone tax of 3 percent to 
fund the Spanish-American War, which never went away. And, at 
that time, it was, ``Let us tax those rich people who have 
telephones.''
    It is not rich people anymore. Everybody has telephones. 
And what we really hope is that we empower people who don't 
have as much money today, in the--because we want them to have 
more money with new ideas and new technology, and a robust 
economy tomorrow, as opposed to saying, ``We are just going to 
tax everybody and take money from them.'' This is not like a 
``sin tax'' in that most profound sense.
    It is my understanding that these taxes on the wireless 
industry are estimated to be nearly $5 billion a year. That is 
an astounding number, and something that warrants the attention 
of the Subcommittee.
    In my time on the Subcommittee, I have seen many hearings--
and, in fact, I have Chaired many hearings--on the subject of 
discriminatory State taxes. I know that discrimination, at 
least in this context, is often in the eye of the beholder. 
However, to my mind, imposing taxes on the wireless providers 
that are more than double to the general business taxes are, by 
definition, discriminatory.
    In that regard, I am actually relieved to see that one of 
our witnesses here today, County Commissioner Mahoney, 
acknowledges that State and local taxation schemes have not 
kept pace with changing technology. It is refreshing that we 
can have at least a point of agreement in some cases. And 
similarly, it is refreshing that State Senator Clayborne has 
taken the position that a State's revenue is not sacrosanct, 
and that it is possible to tax a class of business too much.
    I know that many States are hurting financially. We just 
read today my State's calling a special session to deal with a 
$200 million budget shortfall. And I respect those concerns, 
and the fact that this bill is going to further reduce tax 
revenues. However, I think this legislation has many features 
that will ensure that it does not diminish the State's 
revenues; rather, it will merely require that States tax 
business uniformly, going forward. I think that it is 
worthwhile--a worthwhile purpose that--one that will benefit 
consumers in the long run.
    And, again, I would like to thank the Chair for exceeding 
to my request for a hearing on this issue, and yield back what 
time remains.
    Ms. Sanchez. The gentleman yields back. And I thank him for 
his statement.
    I would now like to recognize my colleague, Ms. Zoe 
Lofgren, the distinguished Chairwoman of the Immigration 
Subcommittee, for her opening remarks on H.R. 5793, which she 
introduced.
    Ms. Lofgren. Thank you, Chairwoman Sanchez. And, just as 
Mr. Cannon has requested this hearing, I also requested that 
you have this hearing. And I am very appreciative that you have 
carved out time to do this. I know that the schedule is 
unbelievably tough. And I really wanted to thank you and credit 
you for taking the time to do this.
    I decided to introduce the Cell Tax Fairness Act because I 
see that wireless services and mobile devices are going to play 
an essential and, actually, a growing role in affordable 
broadband access in this country. And the FCC has estimated 
that in 2007, last year, 68 percent of all broadband 
subscriptions were wireless subscriptions, which is an 
astonishing percentage.
    And given that the United States is slipping in broadband 
penetration--the last I looked, we were 16th in broadband 
penetration--it is important that we visit this issue.
    The access to broadband is going to be accelerated with the 
spectrum--the 700-megahertz auction. And so it is timely to 
take a look at what impediments we have put into place for 
broadband access.
    I think it is important to note that the tax burden is 
particularly significant for those who use wireless phones. 
Thirty-nine million Americans have--wireless subscribers--have 
incomes of less than $25,000 a year. And so if you take a look 
at the need to penetrate broadband broadly through America, the 
growing opportunity that the spectrum sale is going to give us, 
and the fact that we are slipping, and still way behind, 
especially among low-income Americans--this discriminatory tax 
system that we have identified here, on cell phones--we 
shouldn't even call them cell phones, because they are data 
devices now--is very important.
    Some have suggested that this is really a bill for the 
telecommunications industry. And, as a matter of fact, I have 
been on the opposite side of so many issues when it comes to 
that industry, from net neutrality to spectrum policy, open 
access and the like--this isn't about the cell-phone industry. 
It is about the American people, who need to have access to 
broadband. And taxes do have an impact, and impact behavior.
    Now, I want to say just a word about local government, 
because this is the last year I can say this. I served longer 
on the Board of Supervisors of Santa Clara County than I have 
yet to serve in the United States House of Representatives. And 
I do know that the times are tough in local government. And 
revenue is necessary for the essential services that counties 
and cities do.
    I am very sensitive to that. And I also know that local 
governments are, you know, at the bottom of the feeding chain, 
really, when it comes to local-government services. It all 
rolls to you. And it is very tough to meet the obligations that 
are so important.
    I know that it is almost impossible to avoid taxing 
something that you can tax, when you are facing the needs that 
you have, which is why a Federal law is something we need to 
take a look at.
    Now, it is important to note that this bill, if enacted 
into law, would not prevent--it wouldn't take any taxes away 
that are currently in place. And it wouldn't prevent additional 
taxation, provided that it was the same rate as other goods and 
services. Because, if a local government needs to have a half-
cent sales tax, then it should apply broadly to whatever is 
taxable in the State. In California, you don't tax food. Other 
States do.
    But for discriminatory taxes, there would be a time out, a 
break. And I think that, as States and local governments 
struggle with telecommunications-taxation policy, and we have 
tried to do that with the Internet-tax moratorium and the like, 
this time-out is highly necessary. Because if we don't do a 
time-out, at the rate of taxation increase on cell taxes, we 
are going to have a huge--an even bigger problem than we have 
today.
    So I want to thank, again the Chairwoman.
    I want to thank Mr. Cannon and his staff for all their hard 
work in making sure that the 130 co-sponsors are bipartisan. 
This is not a partisan issue.
    And I would ask unanimous consent to place in the record, 
letters of support from the U.S. Chamber of Commerce, the 
National Association of Neighborhoods and the Black Chamber of 
Commerce, who have all asked that we support this bill.
    Ms. Sanchez. Without objection, so ordered.
    [The information referred to follows:]

  Letters of Support from the National Black Chamber of Commerce, the 
 Chamber of Commerce of the United States of America, and the National 
                   Association of Neighborhoods (NAN)











    Ms. Lofgren. And with that, I will yield back, Madam 
Chairwoman--again, thanks for this hearing.
    Ms. Sanchez. I thank the gentlelady for her statement.
    Without objection, other Members' opening statements will 
be included in the record.
    I am now pleased to introduce the witnesses on our panel 
for today's hearing. Our first witness is Gail Mahoney. 
Commissioner Mahoney serves as the county commissioner for 
Jackson County, MI. She is also the deputy director for South 
Central Michigan Works.
    Commissioner Mahoney has served as both chair and vice 
chair of the Human Services Committee, and as chair of the 
Personnel and Finance Committee. Commissioner Mahoney is 
currently a member of that committee.
    Commissioner Mahoney has also been a member of the National 
Association of Counties, Finance, and Intergovernmental 
Steering Committee, since 1996. She serves on numerous boards 
and commissions, including the Jackson County Fair Board, the 
Armory Arts Alliance, Mid-South Substance Abuse Commission, 
which she chairs, Region Two Planning Commission, Passages 
Center for Women's Health of Foote Hospital, and the National 
Association of Black County Officials.
    Welcome, Ms. Mahoney, to our panel.
    Our second witness is James--is it Clayburn or Clyborne?
    Mr. Clayborne. Clayborne.
    Ms. Sanchez. Clayborne. State Senator Clayborne represents 
the 57th district of Illinois. Elected in 1995, he sits on 
several committees, including the Senate Committee on the 
Whole, Executive Appointments, Insurance and Pensions and 
Investments Committees. State Senator Clayborne chairs the 
Environment and Energy Committee, as well.
    Prior to his election to the State senate, Senator 
Clayborne was a partner at Hinshaw & Culbertson in Belleville, 
Illinois, and served as a St. Clair County assistant State's 
attorney.
    Welcome to you.
    Our third witness is Scott Makay--or, I am sorry--Mackey. 
Pardon me. I just made you Irish. [Laughter.]
    Mr. Mackey is a partner at Kimbell Sherman Ellis, KSE, and 
assists clients in designing and implementing successful 
strategies in State capitals. Mr. Mackey joined KSE in 2000, 
and became a partner in 2005.
    Prior to joining KSE, Mr. Mackey was the National 
Conference of State Legislature's chief economist. There, he 
spent 10 years working with legislative leaders on critical 
State issues like the taxation of electronic commerce and 
telecommunications-tax reform. Prior to joining NCSL, Mr. 
Mackey was legislative assistant to U.S. Senator James 
Jeffords, where he handled environmental issues and dairy 
policy.
    Our final witness is Tillman Lay. Mr. Lay is a partner in 
the Washington, D.C. law firm of Spiegel & McDiarmid--did I 
pronounce that correctly?
    He has substantial experience in litigation and counseling 
on telecommunications, cable television, anti-trust and 
constitutional-law matters, before administrative agencies, 
Federal courts and Congress.
    For several years, Mr. Lay has represented and advised the 
National League of Cities, the National Association of 
Counties, the U.S. Conference of Mayors, the National 
Association of Telecommunications Officers and Advisors, and 
other local government organizations and individual 
municipalities, on communications-tax-law matters.
    He has represented municipal organizations in connection 
with, among other communications-tax-law-related matters, the 
Telecommunications Act of 1996, the Internet Tax Freedom Act 
and its extensions, the Mobile Telecommunications Sourcing Act 
of 2000, and previous bills in Congress to reform State and 
local telecommunications taxes.
    I thank you all for your willingness to participate in 
today's hearing. Without objection, your written statements 
will be placed into the record in their entirety. And we are 
going to ask that you limit your oral testimony to 5 minutes.
    You will note that we have a lighting system. And when we 
remember to employ it, you will be given a green light at the 
beginning of your time. You will get a yellow light when you 
have a minute remaining in your time, and then, of course, when 
your time expires, you will see the red light.
    If you are caught mid-sentence or mid-thought, we will, of 
course, allow you to finish that sentence or thought before we 
move on to the next witness. So with that, I--and after each 
witness has presented their testimony, we will have a round of 
questioning from the Members here, subject to the 5-minute 
limit.
    So, with that, I am going to go ahead and invite 
Commissioner Mahoney to please give us her oral testimony.

  TESTIMONY OF GAIL W. MAHONEY, COMMISSIONER, JACKSON COUNTY, 
MICHIGAN, JACKSON, MI, ON BEHALF OF THE NATIONAL ASSOCIATION OF 
                            COUNTIES

    Ms. Mahoney. Thank you Chairwoman Sanchez, and the 
distinguished Members of the House Subcommittee on Commercial 
and Administrative Law.
    My name is Gail Wallace Mahoney, and I am a county 
commissioner from Jackson County, Michigan, currently 
completing my seventh term. I am also a member of the Board of 
Directors for the Michigan Association of Counties, and also 
the National Association of Counties, NACo. I am currently 
serving as the chair of the Finance and Intergovernmental 
Affairs Steering Committee.
    I appreciate the opportunity to be before you today on 
behalf of NACo, also the National League of Cities, the United 
States Confronted of Mayors, the National Association and 
Telecommunication Officers and Advisors, and the Government 
Finance Officers Association.
    We are witnessing an explosion in the telecommunications 
technology. Every day, we see new products being introduced to 
the marketplace; new, better, faster services being marketed to 
America's public.
    In a recent report from the FCC, it was stated that there 
were 33.8 million cell-phone subscribers in 1995. Simply 12 
short years later, we have seen a 700 percent increase, up to 
255.4 million subscribers. Along with that explosion, we have 
also seen an explosion in the companies' profits.
    Even to the casual observer, it is clear that the current 
tax statement of cell-phone services by the Federal, State and 
local authorities has not hindered the product innovation and 
services for financial growth. But that is not to say that the 
improvements to the telecommunication-tax schemes can not be 
made.
    Local governments have called for comprehensive reform that 
would ensure revenue's neutrality, and ensure that functionally 
equivalent services that make use of different technologies are 
treated in a similar manner. But the telecommunications-tax 
reform should not be a disguise for Federal preemption of State 
and local governments' taxing authority, nor does comprehensive 
reform mean that a piecemeal approach would give preferential 
treatment to any services, or a means of its delivery. That is 
what H.R. 5793 will do.
    Unlike the Federal Government, which has a projected 
deficit of about $407 billion--really, we believe it is about 
$700 million--most States and local government are required to 
balance their budgets. This job has become more and more 
increasingly difficult across the country, and in many 
jurisdictions.
    It is reported by the Center on Budget Policy Priorities 
that at least 29 States face a combined budget shortfall of $48 
billion for fiscal year 2009. California, alone, nearly has 
about half that amount. It is expected that more States will 
join that list in revenue forecasts updated, probably after the 
election.
    If the combined house collapse and ever-increasing number 
of home foreclosures--throwing in a little bit of unemployment, 
a stagnant growth in economy, a pinch of high fuel costs and a 
dash of investment--bankruptcies from investment firms--you 
have a recipe for economic mess, currently confronting State 
and local governments.
    To make up revenue shortfalls, many local governments find 
themselves in a position of spending reserves, cutting services 
such as fire, police, teachers, and also increasing taxes. 
Jackson County's unemployment rate is higher than the national 
average. We are reaching nearly an 8 percent increase in 
unemployment. In addition, the county has been particularly hit 
hard by mortgage foreclosures and, also, mortgage fraud.
    Because of this situation, along with the downturn of the 
national economy, we will have to make some significant 
reductions in county expenses. We are looking at a possible 
$1.5 million shortfall in 2009. As a county commissioner, 
completing my 14th year, it is my job to make these very 
difficult decisions. This is going to affect our coworkers, 
people that I love and people that, you know, worked for the 
county for over the past 14 years, that I have become 
acquainted with.
    These people are facing a possible 83 people we are going 
to have to cut from our budget. That is why it is so important 
that the officials actually do everything that they can to try 
and provide an opportunity to have every revenue opportunity 
that we can. We cannot afford to have anything taken off the 
table.
    Faced with these looming economic problems, the last thing 
Congress needs to do is to enact legislation that would preempt 
the taxing authority of State and local governments, especially 
such preemptions that will result in the preferential treatment 
of any one technology over another.
    The true aim of this legislation is Federal preemption that 
reduces the level of taxes that cell-phone industry pays the 
State and local governments, and an increase to everyone else's 
taxes. The consumers which have switched their services from 
local landlines, now, to a cell phone--these revenues are 
eroding the city and county's income.
    This may force localities to rely even more heavily on 
property and income taxes. Congress must not take actions that 
will make an already-difficult job even harder.
    Thank you for the opportunity to provide this testimony 
today on behalf of NACo. And I would ask that my full written 
statement be made part of the record. And I look forward to 
answering any questions. Thank you.
    [The prepared statement of Ms. Mahoney follows:]
          Prepared Statement of the Honorable Gail W. Mahoney






    Ms. Sanchez. Thank you, Ms. Mahoney.
    At this time, I would invite Mr. Clayborne to give his 
testimony.

 STATEMENT OF THE HONORABLE JAMES F. CLAYBORNE, JR., ILLINOIS 
                 STATE SENATOR, BELLEVILLE, IL

    Mr. Clayborne. Thank you, Chairman Sanchez, Ranking Member 
Cannon, and Members of the Subcommittee.
    My name is James Clayborne. I am the assistant majority 
leader in the Illinois State Senate. I am also a member of the 
National Conference of State Legislator's Communication, 
Financial Services and Interstate Commerce Committee, which 
recently reaffirmed its Communications Policy Statement, 
calling for fair and equitable taxation of communication 
services.
    Thank you for the opportunity to appear before you today to 
testify regarding the importance of H.R. 5793, the ``Cell Tax 
Fairness of 2008.'' To my constituents and the more than 9.5 
million wireless consumers in Illinois, Congresswoman Lofgren 
and Congressman Cannon, are to be commended for the broad 
bipartisan support they have garnered for this bill.
    As you might imagine, as a State senator--a State 
legislator--my Federal bill limiting a State's ability to tax 
is something I take quite seriously. Our system of federalism 
provides State and local policymakers with the authority to 
decide how the State should impose taxes on individuals, 
businesses that reside within their jurisdiction.
    The State's authority to impose that revenue--raise revenue 
to fund government services is a concept that I strongly 
support. However, I believe that another fundamental tenent of 
our Nation's tax system is that taxes should be levied fairly 
on citizens, particular in situations where multiple levels of 
government may have the authority to tax.
    One only needs to look at his or her own wireless bill to 
see that there is nothing fair about the countless number of 
taxes and fees that wireless customers pay today. H.R. 5793 is 
a carefully crafted piece of legislation that calls for a 
temporary 5-year time-out on any new discriminatory tax or fee 
from being added on top of existing levels of taxes imposed 
upon wireless services.
    H.R. 5793 is entirely prospective, meaning that any tax or 
fee that is currently being collected by States and localities 
will continue to be collected. I believe that the prospective 
nature of this legislation is extremely important because it 
recognizes the revenue needs of States and municipalities.
    Last year, the wireless consumers paid nearly $21 billion 
to State, local and Federal Government. None of the $21 billion 
would be rescinded under this legislation.
    My focus here today would be to discuss how we got to where 
we are today, and why I believe that taking a time-out from 
additional discriminatory taxes imposed upon wireless consumers 
is important to my constituents, and consistent with the 
principles adopted by the NCSL.
    The average rate of Federal, State and local taxes and fees 
on wireless is 15.2 percent, compared to the average rate 
imposed on goods, services--which is just over 7 percent--this 
means the tax rate on wireless services are more than double 
the rate on other goods and services.
    Looking at my home state of Illinois, it is ranked the 
ninth-highest in the country, with an average rate of close to 
17 percent. A tax rate of 17 percent upon service that I 
believe is critical to many of my constituents is a financial 
burden. But imagine adding an additional tax on wireless 
consumers.
    Last year, Cook County, Illinois, which encompasses most of 
the city of Chicago, sought to impose a $4-per-line-per-month 
tax on communication services. There was no specific purpose 
given to justify the tax aimed solely at communication 
services. Rather, the revenue was going to be used to plug a 
hole in the county's general-fund budget.
    Had the proposed Cook County tax been added, the rate of 
taxes and of fees on wireless services, if purchased by the 
citizens of Chicago, would have increased to an average of 24 
percent.
    When the people of Cook County learned of the proposed tax 
increases, 3,300 consumers took time to contact their county 
officials to voice their opposition. The actions of these 
consumers in Cook County demonstrate just how unpopular these 
targeted wireless taxes are with consumers.
    As we all know, wireless services are no longer considered 
a luxury. For millions of Americans, these services are crucial 
to their everyday lives, and yet they are taxed at levels that 
are double or even triple the rates imposed on other goods and 
services. Imposing regressive consumption taxes on consumers of 
an essential service such as wireless disproportionately 
impacts low and middle-income consumers, with--unfortunately, 
can put this critical service out of financial reach for some 
of my constituents, who need it the most.
    Had the proposed tax by Cook County go into effect, the 
Chicago residents will be paying an additional $12 on a $50 
bill. Taxing on wireless services at that rate is more than 
double the rate imposed upon goods and services--artificially 
increases the cost of services, and which hurts the economic 
gains that could be achieved by having a more rational tax 
policy.
    Over the past 8 years, NCSL has made communications-tax 
reform a major priority for States to consider. The committee, 
as well as separate tax force, has spent considerable time 
educating state-policy makers on the need to simplify and 
modernize the taxes imposed upon communications services. Even 
though the communications-tax reform has been a major topic of 
NCSL, little progress in achieving such reforms has been made.
    I believe this Subcommittee is uniquely situated to address 
the disparate tax treatment of an inherently interstate 
service. As someone who comes from a State that imposes a 17 
percent tax on wireless services, I know that once these taxes 
are in place, it is very difficult to reduce them. Preventing 
the imposition of new, additional discriminatory taxes on 
consumers, while we try to fix the existing system, will be 
both an economic benefit to consumers, and will also help those 
who cannot afford a computer enjoy the benefits of wireless 
broadband.
    Last year, it was estimated that wireless consumers in my 
State paid almost $1 billion in State, local and Federal 
taxes----
    Ms. Sanchez. Yes.
    Mr. Clayborne [continuing]. And fees imposed upon their 
wireless services. By anyone's measure, be it from State or 
Federal perspective, that is a lot of money, from the one 
subset of consumers, to pay on an essential service.
    That is why I strongly support the passage and enactment of 
H.R. 5793, the ``Cell Tax Fairness Act of 2008.''
    Thank you again for this opportunity to speak to you today. 
I would be happy to answer any questions you may----
    [The prepared statement of Mr. Clayborne follows:]

      Prepared Statement of the Honorable James F. Clayborne, Jr.

    Chairwoman Sanchez, Representative Cannon, and members of the 
Subcommittee, my name is James Clayborne, and I am the Assistant 
Majority Leader of the Illinois State Senate. I am also a member of the 
National Conference of State Legislator's (NCSL) Communications, 
Financial Services & Interstate Commerce Committee which recently 
reaffirmed its communications policy statement calling for fair and 
equitable taxation of communications services.
    Thank you for the opportunity to appear before you today to testify 
regarding the importance of H.R. 5793, the ``Cell Tax Fairness Act of 
2008'' to my constituents and the more than 9.5 million \1\ wireless 
consumers in Illinois. Representatives Lofgren and Cannon are to be 
commended for the broad bi-partisan support they have garnered for this 
bill.
---------------------------------------------------------------------------
    \1\ FCC, Annual Report and Analysis of Competitive Market 
Conditions with Respect to Commercial Mobile Service: Twelfth Report, 
FCC 08-028 (Feb. 4, 2008).
---------------------------------------------------------------------------
    As you might imagine, as a state legislator, any federal bill 
limiting a state's ability to tax is something that I take very 
seriously. Our system of Federalism provides state and local 
policymakers with the authority to decide how states should impose 
taxes on individuals and businesses that reside within their 
jurisdictions. The states' authority to impose taxes that raise 
revenues to fund government services is a concept that I strongly 
support.
    However, I believe that another fundamental tenet of our nation's 
tax system is that taxes should be levied fairly on our citizens, 
particularly in situations where multiple levels of government may have 
authority to tax. One only needs to look as far as his or her own 
wireless bill to see that there is nothing fair about the countless 
number of taxes and fees imposed upon wireless services today.
    The purpose of H.R. 5793, precluding new discriminatory taxes from 
being added on top of the existing excessive level of taxes imposed 
upon wireless services, is an idea that is hard to disagree with. While 
convergence, competition and the dynamic changes that have taken place 
within the communications industry makes it critical for state 
policymakers to simplify and reform the current state and local taxes 
imposed upon all communication services and property, that goal is 
going to take some time to accomplish. It makes sense that state and 
local governments should not be enacting new discriminatory impositions 
when policymakers and the industry are continuing to work towards 
eliminating the ones that currently exist. Specifically for services 
that consumers rely upon for their communication, information and 
public safety needs
    My focus here today will be to talk about how we got to where we 
are today and why I believe that taking a ``time-out'' from having new, 
additional discriminatory taxes imposed on wireless services is 
important to my constituents and consistent with the principles adopted 
by NCSL at its annual meeting.

                        HIGHLIGHTING THE PROBLEM

    The tax structure imposed upon the communications industry today is 
a carryover from the days when the industry was operated by Ma Bell as 
a rate regulated utility. This tax structure was created well before 
the first wireless call was ever made. As regulated utilities, 
providers were subject to taxes under statutes applicable to ``public 
utilities.'' The taxes imposed included gross receipts, franchise and 
other industry-specific taxes that were then passed on to consumers in 
the rates as part of the regulatory rate setting process. The phone 
company never had to worry about the consumer looking for a cheaper 
alternative because there was no competition in the marketplace. State 
and local governments could tax telecommunication services at much 
higher rates than any other goods and services without worrying about 
an outcry from unsuspecting constituents, because ``it was just the 
phone company raising rates again.''
    Since the introduction of wireless services in the late 1980's and 
the passage of the Federal Telecommunications Act of 1996, the 
marketplace for communication services has changed substantially. 
Communications services are no longer provided by only a single 
provider, the ``rate-regulated'' utility. Consumers now have many 
options to choose from for their communications services as a number of 
extremely competitive industries bring innovation and change to 
consumers at a rapid pace.
    The wireless industry alone provides communication services to over 
260 million consumers. That is a staggering number of consumers 
enjoying the benefits of wireless mobility when you consider that only 
fifteen years ago there were just 13 million wireless consumers. The 
days of wireless services being considered a luxury that only the 
wealthy can afford are over. Today these services are critical to my 
constituents and, as with many other wireless consumers across the 
country, are considered a necessity. Likewise, wireless broadband 
services may be the only access that many consumers have to the 
internet. For better or worse, we can all be ``connected'' 24/7 if we 
choose to do so.
    Unfortunately, the tax structure hasn't kept pace with all the 
exciting innovation and technological changes taking place in the 
industry. The January 2008 issue of Governing magazine stated ``And 
yet, state tax structures, developed at a time when computers--
``thinking machines''--were the stuff of science fiction, and the 
American economy flourished with the automobile industry, have failed 
to evolve. To take one example, there is the outmoded way in which 
telecommunications companies are taxed. A reliable, high-quality and 
affordable telecommunications system is essential to the economic 
competitiveness of states--to say nothing of the nation. And yet, these 
systems are subject to very high taxation rates in a number of states--
by a tax approach set when the industry, dominated by one telephone 
company, was highly regulated.'' \2\
---------------------------------------------------------------------------
    \2\ Katherine Barrett & Richard Greene, Growth & Taxes, Governing 
Magazine (January 2008).
---------------------------------------------------------------------------
    Instead of undertaking the difficult task of reforming the tax 
structure for the industry in total, the wireless industry and its 
consumers have seen many of these antiquated ``utility'' taxes from the 
last century simply extended to wireless services under the guise of 
``leveling the playing field.'' I support this bill because I don't 
believe that making the situation worse before we tackle the difficult 
task of making it better for my constituents is the right answer.
    The study published by Mr. Mackey earlier this year indicated that 
the national average rate of federal, state and local taxes and fees on 
wireless services is 15.19% compared to the average rate imposed upon 
other goods and services of 7.07%.\3\ That means the rate of tax on 
wireless services is more than double the rate on other goods and 
services! When I look at my home state of Illinois, it is ranked the 
9th highest in the country with an average tax rate of close to 17%. It 
appears that we have some work to do to in my state to try to lower the 
rate imposed on wireless services to the rate imposed upon other goods 
and services, which averages about 8-9%.
---------------------------------------------------------------------------
    \3\ Scott Mackey, Excessive Taxes & Fees on Wireless: Recent 
Trends, State Tax Notes (Feb. 18, 2008).
---------------------------------------------------------------------------
    A tax rate of 17% imposed upon services that I believe are critical 
to many of my constituents is burdensome, but imagine adding an 
additional tax on wireless services to that rate. I was very surprised 
to learn that a County in my state actually attempted to do just that 
last year. Cook County, Illinois, which encompasses most of the City of 
Chicago, was seeking to impose a $4 ``per line, per month'' tax on 
communication services. There was no specific purpose given to justify 
the imposition of this tax solely on communication consumers--rather, 
the revenue was going to be used to plug a hole in the County's general 
fund.
    Had the proposed Cook County tax been enacted, the rate of taxes/
fees on wireless services purchased by citizens in the City of Chicago 
would have increased to, on average, a rate of 24%. Now, if consumers 
in Cook County had the opportunity to approve this new tax, then I 
might not question the fairness of it. However, the county council was 
deciding for wireless consumers--the county was not going to put this 
proposal to a vote of the people. After the wireless industry educated 
its consumers about this new proposed ``phone tax,'' over 3,300 
consumers took the time to contact their county officials to speak out 
against this tax. The actions of these consumers in Cook County 
demonstrate just how unpopular these targeted wireless taxes are with 
consumers.
    When you consider how important wireless services have become to 
consumers today, taxing these services at such an excessive level is 
counterintuitive to me. Rates frequently approach the level of so-
called ``sin'' taxes. Policymakers typically impose sin taxes when they 
want to discourage consumption of certain products, such as alcohol and 
tobacco. It is hard to understand why a service that many of my 
constituents consider a safety lifeline is taxed at nearly 20% per 
month. A rate meant to discourage usage, not encourage it.
    I believe we all can acknowledge that communication services, and 
wireless services in particular, are a vital component of this 
country's economic growth and stability. Mr. Mackey cites several facts 
in his testimony on the productivity benefits that the wireless 
industry provides to the overall economy. It is hard to believe that 
any reasonable policymaker would continue to think that imposing new 
discriminatory taxes on wireless services is appropriate.

 PROTECTING WIRELESS CONSUMERS FROM EXCESSIVE TAXES IS IMPORTANT TO MY 
                              CONSTITUENTS

    As has been mentioned before, wireless services are no longer 
considered a luxury. For many Americans, these services are crucial to 
their everyday lives and yet they are taxed at levels that are double 
or even triple the rates of tax imposed on other goods and services. 
Imposing regressive consumption taxes on consumers purchases of 
wireless services disproportionately impacts low and middle income 
consumers which can put this critical service out of reach for some of 
my constituents that need it the most.
    According to the Pew Internet & American Life Project, when 
respondents were asked how hard it would be to give up a specific 
communication service, cell phones received the top ranking over the 
Internet and television.\4\ The Pew study also found that 84 percent of 
English-speaking Hispanics, 71 percent of African-Americans and 74 
percent of non-Hispanic white Americans have cell phones.\5\
---------------------------------------------------------------------------
    \4\ John Horrigan, Mobile Access to Data and Information, Pew 
Internet & American Life Project (March 2008).
    \5\ Id.
---------------------------------------------------------------------------
    As was stated before, wireless devices are being used to do far 
more than just make phone calls. Wireless technology also provides 
people with the ability to remain connected to friends, family and, in 
this new information age, to be able to access the Internet. Recent 
studies have shown that minorities constitute a growing proportion of 
total demand for wireless, particularly the newest data services, like 
broadband.
    On a typical day, 77 percent of all Americans with cell phones have 
sent or received text messages, taken a picture, played a game, sent or 
received e-mail, accessed the Internet, recorded a video, played music, 
sent or received an instant message, used a map, or watched a video on 
their cell phone.\6\ Breaking down the details, the highest percentage 
of use is from minorities: 90 percent of English-speaking Hispanics and 
77 percent of African-Americans have done at least one of these 
activities compared to 73 percent of non-Hispanic white Americans.\7\
---------------------------------------------------------------------------
    \6\ Id.
    \7\ Id.
---------------------------------------------------------------------------
    Adoption of new technologies, in particular the use of wireless 
phones and wireless broadband, has driven and improved productivity, 
economic growth, and household income in the United States. Recent 
studies have demonstrated that policies supporting affordable wireless 
services that allow for increasing wireless use should lead to income 
and productivity gains by all Americans, particularly low income 
wireless users.
    Whether it is a small business owner tracking orders ``on the go,'' 
an employee answering e-mails on a wireless device outside of the 
office, or a family physician using a handheld device to input patient 
information and prescriptions, wireless has delivered enhanced 
efficiencies and greater convenience. Taxing wireless services at a 
rate that is more than double the rate imposed upon other goods and 
services is artificially increasing the cost of these services which in 
turn hurts the economic gains that could be achieved by having a more 
rational tax policy.

     CONCEPT IS CONSISTENT WITH NCSL TELECOMMUNICATIONS TAX REFORM 
                               PRINCIPLES

    Over the past eight years, NCSL has made communications tax reform 
a major priority for states to consider. The Committee as well as a 
separate task force has spent considerable time educating state 
policymakers on the need to simplify and modernize the taxes imposed 
upon communications services as well as the benefits in doing so.
    The most recent set of principles for communications tax reform 
that have been unanimously endorsed by the NCSL are set forth below:
TAXATION OF COMMUNICATIONS SERVICES
    Transaction taxes and fees imposed on communications services 
should be simplified and modernized to minimize confusion, remove 
distortion and eliminate discrimination regarding the taxability of 
telecommunications services. The National Conference of State 
Legislatures encourages elected policymakers at all levels of 
government to work together to simplify, reform and modernize 
communications taxes based upon the following principles:
    Tax Efficiency: taxes and fees imposed on communications services 
should be substantially simplified and modernized to minimize confusion 
and ease the burden of administration on taxpayers and governments.
    Competitive Neutrality: transaction taxes and fees imposed on 
communications services should be applied uniformly and in a 
competitively neutral manner upon all providers of communications and 
similar services, without regard to the historic classification or 
regulatory treatment of the entity.
    Tax Equity: Under a uniform, competitively neutral system, 
industry-specific communications taxes are no longer justified, except 
for fees needed for communications services such as 911 and universal 
service.
    State Sovereignty: Other than the prohibition of taxes on Internet 
access, NCSL will continue to oppose any federal action or oversight 
role which preempts the sovereign and Constitutional right of the 
states to determine their own tax policies in all areas, including 
communications services.\8\
---------------------------------------------------------------------------
    \8\ Unanimously passed the NCSL Communications, Financial Services 
and Interstate Commerce Committee Business Meeting, November 28, 2007--
Passed on voice vote during the full NCSL Business Meeting November 30, 
2007--Passed on voice vote during NCSL Annual Business Meeting, July 
25, 2008.
---------------------------------------------------------------------------
    Except for the very last provision addressing state sovereignty, 
the concepts in H.R. 5793 are very consistent with this policy 
statement. Under a uniform and competitively neutral system, industry 
specific taxes are no longer justified. Unfortunately, without 
proceeding with the reforms needed to the current tax structure, the 
system will remain confusing and inequitable. Extending industry 
specific ``utility'' taxes to wireless services is not the right 
answer. The concepts in H.R. 5793 are intended to guard against having 
the taxation of communications services become more onerous before the 
reforms set forth in the NCSL policy statement can be implemented.
    Even though communications tax reform has been a major topic at 
NCSL, little progress in achieving such reforms has been made. One area 
where we have seen moderate success has been in the simplification of 
some of the existing taxes by reducing the number of returns 
communications providers are required to file. Illinois was one of 
those states, where several local impositions were consolidated into 
one tax that is filed with the state, significantly reducing the number 
of returns required to be filed that was required when returns were 
filed with the local governments.
    While the simplification effort was helpful, the state still has 
not engaged in serious discussions with stakeholders about formulating 
a plan to reduce the high rate of taxes imposed upon communication 
consumers. Given the budget deficits that many states will be facing, I 
believe it will be difficult to quickly accomplish the reform that is 
required to reduce the existing excessive rates of taxes on 
communication services any time soon.
    Having said that, it is an issue that we must continue to focus on. 
In the interim, we should ensure that no new discriminatory taxes will 
be imposed on wireless services. As a state that currently imposes an 
onerous tax burden on communication services, I can honestly state that 
once these taxes are in place they are very hard to eliminate. 
Preventing the imposition of new burdensome taxes on consumers while we 
try to fix the existing system makes a lot of sense.
    Last year, it was estimated that wireless consumers in the state of 
Illinois paid almost $1 billion in state, local and federal taxes and 
fees imposed upon their wireless services. By anyone's measure, be it 
from a state or federal perspective, that is a lot of money for one 
subset of consumers to pay on an essential service. That is why I 
strongly support the passage and enactment of H.R. 5793, the ``Cell Tax 
Fairness Act of 2008.''
    Thank you again for this opportunity to speak to you today. I would 
be happy to answer any questions that you might have at the appropriate 
time.

    Ms. Sanchez. Thank you, Mr. Clayborne.
    We have just received notice that we have votes pending 
across the street. But I think we do have time to have Mr. 
Mackey give his oral testimony, assuming that you can squeeze 
it in between the 5- and 6-minute mark.

            STATEMENT OF SCOTT R. MACKEY, ESQUIRE, 
             KIMBELL SHERMAN ELLIS, MONTPELIER, VT

    Mr. Mackey. Thank you very much, Chairwoman, and Members of 
the Committee.
    I will stay within my time. I just want to reiterate two 
important points that Ms. Lofgren made during her opening 
remarks.
    First of all, this bill would not preempt any existing 
taxes. So there would be no fiscal impact from this bill on any 
State or local government that is currently, today, imposing 
taxes--even discriminatory taxes--on wireless consumers.
    And it would allow new taxes, provided that those new taxes 
were not singling out wireless consumers, but were part of a 
broad-based tax increase to meet revenue needs for local 
government. So this bill only affects new discriminatory 
taxes--the ones that, as we have heard, are burdening 
consumers.
    I am going to just skip over some of the things I said in 
my prepared remarks, and just focus on a couple of things that 
some of the folks claim that this bill would do, because I 
think, in some of the testimony, some of the local governments 
are claiming that we have not made the case that there is 
excessive or discriminatory taxes on wireless consumers.
    And as a side note, I would say, if there are no 
discriminatory taxes imposed today, then governments have 
nothing to worry about from this bill, because it only affects 
discriminatory taxes.
    In terms of whether there is a problem, NCSL, the 
Governor's Association, Governing Magazine--many, many people 
have said that there is, indeed, a problem. So I don't think we 
can just say that this something--that the wireless industry 
has somehow cooked the numbers to show that there is a problem.
    There is a problem. And, you know, I would not tell a 
consumer in Baltimore City, that has, you know, a typical $50 
plan with two lines, that is paying $11.50 in taxes a month 
versus if they walked into the hardware store and bought 
something for $50--they would pay $2.50. Or, in Chicago, where 
a same--similarly situated consumer--would pay $12 a month on 
their wireless bill, and only pay $5 if they bought something 
from the store. So, clearly there is a problem here.
    But there is not a problem in every State. It is limited to 
certain States that have really targeted wireless consumers.
    As has been mentioned, these are regressive taxes. There 
are many, many lower and moderate-income people that have plans 
and--that, in particular--the trend toward a per-line charge, 
instead of a percentage of your bill--is very, very burdensome 
on lower-income people, who have multiple lines on the same 
plan--family share plans and the like.
    Consumers are really spending a lot, and, really, this 
bill, as has been suggested, is about the consumer. The notion 
that the local governments are willing to talk about reform, 
and that this bill would actually discourage reform--I worked 
on this issue for the last 10 years of my career, and the facts 
would really suggest otherwise. When the industry and others 
have sat down with local governments to talk about reform, we 
have not been able to make any progress.
    We are facing new taxes right now from local governments in 
California, Oregon, Missouri, Maryland and New York. And one of 
the reasons why we haven't had consensus on reform is, because, 
to a lot of local governments, reform means, ``Let us make 
wireless consumers pay all the taxes that are legacy from the 
regulated era that are now being levied on the landline 
phones.'' And reform means, ``Let us bring everybody up to the 
highest level of taxation.''
    And we think reform means, ``Let us bring everybody down to 
a level that is being imposed broadly on all goods and services 
that are subject to the tax, and not single out specific 
services for those types of discriminatory taxes.''
    And then, finally, the issue of, ``Why wireless? Why should 
the Congress look at wireless as an industry that deserves--the 
consumers deserve protection from new discriminatory taxes?'' 
Well, clearly, the wireless industry is federally licensed and 
regulated. Congress and the FCC have set the rules and granted 
the licenses that dictate how and where wireless providers are 
able to sell their service.
    So Congress is already heavily involved in this industry. 
And it is a fundamentally interstate industry. I mean, this is 
an industry where folks with wireless phones start a call in 
one jurisdiction, can cross a boundary--and that, in fact, is 
why Congress decided it had to get involved and actually make 
the rules for allocating which jurisdictions were able to tax. 
And that is the Mobile Telecom Sourcing Act that Congress 
passed 5 or 6 years ago.
    So, clearly, this is an interstate service, and the Federal 
role is already well established.
    And then, finally, more and more economic studies have 
showed that wireless industry has a disproportionate share in 
our economic growth. And if we are going to do the kind of 
things that Representative Lofgren said, instead of--in terms 
of setting the stage for new technologies, new ways that 
American businesses and--are going to be more productive--then 
we can't have taxes that discourage investment and force 
consumers to have to choose not to adopt and purchase certain 
services because the tax burden is too high, and they can't 
afford to choose them.
    So, in summary, thank you, again, for the opportunity to 
testify. I look forward to questions. This bill is really about 
protecting the consumer. And it needs to be passed. And I hope 
you will move to a markup as soon as possible.
    Thank you.
    [The prepared statement of Mr. Mackey follows:]

                 Prepared Statement of Scott R. Mackey

















    Ms. Sanchez. Thank you for your testimony, Mr. Mackey.
    At this time, we will recess to walk across the street to 
vote. And we will resume the hearing as soon as the last vote 
is finished.
    [Recess.]
    Ms. Sanchez. The Subcommittee will now come to order. And 
we thank the witnesses for their patience while we were across 
the street voting.
    We are going to try to finish the hearing--have a thorough 
hearing, but finish it within the hour, if possible, because we 
are expecting another round of votes.
    So I am going to just jump in very quickly, and ask Mr. Lay 
to give his oral testimony.

        STATEMENT OF TILLMAN L. LAY, ESQUIRE, SPIEGEL & 
     McDIARMID, LLP, WASHINGTON, DC, ON BEHALF OF THE U.S. 
   CONFERENCE OF MAYORS, THE NATIONAL LEAGUE OF CITIES, THE 
     GOVERNMENT FINANCE OFFICERS ASSOCIATION, THE NATIONAL 
 ASSOCIATION OF TELECOMMUNICATIONS OFFICERS AND ADMINISTRATORS

    Mr. Lay. Thank you. Good afternoon, Chairwoman Sanchez, and 
Members of the Subcommittee.
    I am Tillman Lay, of the D.C. law firm of Spiegel & 
McDiarmid, and I am testifying on behalf of the U.S. Conference 
of Mayors, the National League of Cities, the National 
Association of Counties, the National Association of 
Telecommunications Officers and Advisors, and the Government 
Finance Officers Association.
    We oppose H.R. 5793. Its proposed moratorium on State and 
local wireless taxes represents an unwarranted Federal 
intrusion into the long-recognized authority of State and local 
governments to establish tax classifications. And it would open 
the door to other industry sectors asking for similar 
preemption of State and local tax-classification authority.
    The Supreme Court has long recognized that State and local 
governments have broad discretion in the field of taxation, 
where they possess the greatest freedom of classification. H.R. 
5793 departs radically from this longstanding principle of 
federalism.
    It would single out one subpart of the telecommunications-
industry sector, wireless services, for preferential, 
preemptive protection from State and local tax classifications. 
That would set a precedent that would endanger State and local 
tax authority and tax-classification authority in at least two 
ways.
    First, it would move us further away from State and local 
government efforts at telecommunications-tax reform. The bill 
would require that State and local governments treat wireless 
services more preferentially than their landline-
telecommunications-service competitors. Narrowing the 
permissible tax base for telecommunications to landline service 
would put upward pressure on State and local landline-
telecommunications-service taxes, and, likely, on State and 
local public-utility taxes as well.
    Second, the bill would set a dangerous standard for Federal 
intervention into State and local-government tax 
classifications. If taxing any industry sector or service at a 
rate different from the general business-sales-use tax rates 
constitutes a discriminatory tax, then there would be no limit 
at all to Federal preemption of all State and local tax 
classifications.
    And you can expect other industries that are subject to 
different, and, often, higher, State and local tax 
classifications, such as the utility, petroleum distribution, 
entertainment, transportation and other industries, to ask 
Congress for similar preemptive relief from State and local tax 
classifications.
    Moreover, the legislation is a solution in search of a 
problem. Supposedly excessive State and local wireless fees and 
taxes notwithstanding, the wireless industry has enjoyed 
remarkable growth in terms of subscribership, revenues, and 
investment--over the past 7 years.
    According to the FCC, wireless-industry subscribership has 
grown 158 percent since 2000, and wireless-industry revenue has 
grown 124 percent over that same time period.
    The wireless industry's claim of excessive taxes and fees 
are based upon an apples-and-oranges mix of Federal, State and 
local fees and taxes, many of which would not be affected by 
H.R. 5793 at all.
    CTIA has claimed that about 15 percent of each customer's 
monthly bill already goes to taxes and fees. But this 15 
percent figure includes Federal taxes and Federal Universal 
Service Fund charges. The 15 percent figure also includes State 
Universal Service Fund and State and local 911 fees--two more 
categories of fees that the bill exempts from its reach. And 
the 15 percent figure also includes State and local general 
sales-and-use taxes, which, of course, would also not be 
subject to the bill's moratorium.
    By singling out State and local wireless taxes for 
preemption, industry is seeking to shift all of the blame and 
all of the fiscal burden to local governments and their general 
funds, not for the taxes they have imposed, but for the various 
user fees imposed by the Federal and State and local 
governments that the bill would not preempt.
    Eight years ago, local government organizations and the 
wireless industry worked together to develop and support the 
enactment of the Mobile Telecommunications Sourcing Act. The 
MTSA assures political accountability. A State or wireless tax 
will end up being paid by the constituents of the State or 
local government that imposes the tax.
    No elected official enjoys imposing or increasing any tax. 
And that is just as true of State and local elected officials, 
as it is Members of Congress. There is one difference, however. 
State and local governments must balance their budgets. And 
political accountability ensures that if State or local 
government constituents who pay a wireless tax feel that that 
tax is excessive, there is a very effective cure. It is called 
the ballot box.
    H.R. 5793 violates all principles of political 
accountability. It would enable the Federal Government to place 
a preemptive ceiling on State and local taxing authority, while 
leaving to State and local elected officials the difficult task 
of deciding what other taxes to raise or what services to cut 
to compensate for action that the Federal Government, not they, 
took.
    We, therefore, ask that the Subcommittee vote against 
approving H.R. 5793. Thank you for your time. And I would be 
happy to answer any questions you may have.
    [The prepared statement of Mr. Lay follows:]

                  Prepared Statement of Tillman L. Lay























    Ms. Sanchez. Thank you, Mr. Lay. We appreciate your 
testimony.
    We will now begin the round of questioning. And I will 
recognize myself first, for 5 minutes of questions.
    I am going to start with Ms. Mahoney.
    If Congress were to pass this legislation, what impact 
would it have on State and local revenues?
    Ms. Mahoney. One of the issues is, for me, and for 
Michigan--if the Federal Government decides to limit this tax, 
the way we collect our current fees or try and balance our 
budget--for instance, you know, for me, if we were to have what 
Illinois has, at 17 percent, I think this would be a really 
good idea. But we don't.
    And, if, for our constituents and the people within our 
State--to keep fire departments going, to keep police stations 
going--and we are able to say to our constituents, ``We need 
this tax for that reason--you know, to increase 1 percent 
versus laying off police officers.'' I think that we should be 
able to do that.
    And those are the kinds of things that I think--imposing it 
from a Federal level preempts us from being able to do that.
    Ms. Sanchez. Thank you, Ms. Mahoney.
    Mr. Clayborne, what do you hope to accomplish with the 
passage of H.R. 5793, and the 5-year moratorium? Because I am 
interested in knowing if this 5-year moratorium will actually 
just sort of lead the movement toward a permanent moratorium, 
or a ban on all taxation of wireless services.
    Mr. Clayborne. I think what, essentially, happens is that 
you force the State, local and county governments to come 
together to begin to address this issue.
    Obviously, if we continue to--if this bill does not pass, 
then if every county in the State decides to raise it by 2 
percent--there are 102 counties in the State of Illinois. That 
tax will continue to go up. And it is obviously a burden on the 
poor.
    So we believe that the moratorium----
    Ms. Sanchez. Do you see it, primarily, as a leverage to try 
to get people to sit down and talk about some real reform?
    Mr. Clayborne. That is correct.
    Ms. Sanchez. Okay.
    I am just interested in knowing from you, Mr. Clayborne--as 
the Chairman of the Subcommittee, I have had various industries 
come to me to say, ``We are being discriminated against in 
terms of taxes.'' And just some of the industries that have 
come to ask for relief are the hotel industry, the car-rental 
industry, the satellite-television industry, Internet-access 
providers and big businesses, among several others.
    So I am interested in knowing your perspective. You know, 
why the carve-out for wireless, and not all the other 
industries that are coming to ask for the same kind of relief? 
Because the cumulative effect, I believe, if we were to say, 
``Yes,'' to everybody, would be what Ms. Mahoney has mentioned; 
that, budgets for fire departments and police departments would 
be particularly hard-hit, especially at a time when, I believe, 
most States are facing huge economic problems.
    Mr. Clayborne. I think it is--the distinction between the 
other entities that you discussed is the fact that most of 
those are actually luxury. This has become essential.
    As Ms. Lofgren had stated--Congresswoman Lofgren stated--
``At my house, no one answers the house phone, because if you 
are intending to call my sons, then you either text them or you 
call them on their cell phone.'' So it has become essential 
item in our daily use.
    I have two sons in college. I don't even know the number to 
the dorm room, because they won't answer it. This has become 
such an essential part of communicating, between texts, emails, 
as well as the actual phone itself. So that is the difference.
    Ms. Sanchez. That is the distinction? Okay.
    Mr. Lay, in his written statement, State Senator Clayborne 
suggests that it would be difficult for State and local 
governments to reform and reduce excessive rates of taxes on 
communication services. And that is sort of the justification 
why Federal legislation is necessary.
    Do you think that passage of this 5-year moratorium would 
lead to effective reform?
    Mr. Lay. No, I don't.
    The difficulty is this: As I recall in his answer--and 
maybe you are confusing his with Mr. Mackey's--the view of 
telecommunications-tax reform that industry has, as the only 
acceptable reform, is that industry be taxed just--just be 
subject to a generally applicable sales-and-use tax, no 
differential tax rate. And that is the difficulty.
    I don't think the moratorium would result in that. In fact, 
for fiscal reasons, it would probably force local governments 
to raise taxes on landline telephone, which is a shrinking tax 
base, because that is all they would have left. They can't 
increase or extend the telephone tax to wireless service 
anymore.
    Ms. Sanchez. Okay. Thanks.
    Mr. Lay. They would put us further away.
    Ms. Sanchez. Thank you, Mr. Lay.
    My time has expired, so I will recognize the Ranking 
Member, Mr. Cannon, for 5 minutes of questions.
    Mr. Cannon. Thank you, Madam Chair.
    And, you know, I was just sitting here, thinking. I had 
said earlier in my opening statement that these are regressive 
taxes. I think that is particularly difficult because I 
actually think that you are not smarter because you are rich. 
And if we want to tap into the genius of people who are not yet 
rich, you have to give them access to systems.
    And my understanding is that there are some jurisdictions 
that are taxing cell phones like $1.50--in some case, even more 
than that--per line. So in the case of my family, I have a 
family plan. Actually, we have a big family, so we have two 
family plans. And each additional person we put on that family 
plan costs about $5 for the plan.
    And I see Mr. Mackey is nodding his head. Apparently, that 
is common. And, you know, if you add $1.50 tax on that line, 
that is like a 30 percent tax for that phone.
    And, now, I bought my 10-year-old, now, a phone when she 
was 8, because I figure that is one of the best ways to protect 
her. You know, she can dial, or we can locate--if she keeps the 
phone with her and she gets lost, we can locate her with, 
perhaps, the phone GPS system.
    So there are a lot of reasons to have a phone, but if you 
start putting a 30 percent tax on it, at some point, you 
actually really affect people's ability to buy that, especially 
when you are in a--when your incomes are more marginal.
    I am in--you know, late in my career, as opposed to a young 
family that has two or three kids, and that tax could be more 
significant.
    Does that bother you, Mr. Lay, that we could be taxing at 
those kinds of rates on services that are profoundly important 
to the development of society?
    Mr. Lay. Well, I would first say that the fee you are 
talking about--and this is based upon Mr. Mackey's table--to 
say that it is common is not accurate--that a tax of that level 
is not common.
    Mr. Cannon. No, I don't think I said it is common. I just 
said that that is one of the fees, and that, you know----
    Mr. Lay. And, well, there is--I mean, I suspect--I guess my 
reaction to that is, one, that would not happen unless the 
voters who pay that tax allowed elected officials to do that. 
There is an effective check on that.
    The other question that I----
    Mr. Cannon. Let us go to that point, because, you know, my 
family has been through a number of plans over time, as almost 
everybody has, because it has been a pretty volatile market.
    So we ended up, at one point in time, where we had two very 
different plans. And within those plans, the bills went to 
different addresses. So my wife's phone went to my home address 
and my phone, which was the same phone, went to my business 
address.
    And the bill was significantly different on my wife's 
phone--higher. And the reason for that was because the local 
city taxed it at a much higher rate.
    And so it seemed to me that the only way to solve that was 
to move the address for the billing for her phone into my 
business, which, by the way, saves a lot of inconvenience 
anyway, because sometimes she doesn't get around to paying the 
bills, and my office does.
    But I guess my point there is that people actually don't--
they are not going to change their elected officials over that 
kind of a thing. And, frankly, if--they may not even know about 
it or know what their bill is, compared to other people. 
Normally, they just take the bill and write out a check for the 
bottom line.
    Now, that doesn't mean it doesn't have an economic effect. 
But to say that voting is the way to change your phone bill 
seems to me to be a pretty tenuous relationship.
    Mr. Lay. Only if you say that it is tenuous, not just--if 
that is a statement that, basically, you can't count on the 
democratic process to protect against excessive taxes as--do 
people want to tax themselves? I would suggest that is a 
question of the basic form of democratic government. I mean, 
that is what we have.
    Mr. Cannon. Okay.
    Well, then, let me ask it this way: If you think that local 
voters should protect themselves by who they elect--I agree 
with that--is there a role for the Federal Government in 
eliminating the discriminatory taxes, especially in a case like 
cell phones, where you have this national market?
    I mean----
    Mr. Lay. I think there is a national market for lots of 
goods and services--petroleum distribution, electric, gasoline. 
All are subject to taxes that, under this definition of 
discrimination, would be called discrimination.
    I would say----
    Mr. Cannon. And we are working on several of those that you 
have just mentioned, of course.
    Mr. Lay. Yes.
    And, I guess, where I would have a problem is the notion 
that the Federal Government has the power, in our 
constitutional system, to, basically, rewrite and mandate all 
the State and local tax codes in this country.
    You have to remember that State and local governments, 
unlike the Federal Government, rely primarily on transaction 
taxes. The Federal Government relies more on income taxes. And 
on the issue of regressivity, I would suggest to you that, 
although all transaction taxes are somewhat regressive, utility 
and telecommunications taxes are actually a bit less regressive 
than general sales taxes, because their burden falls relatively 
more on businesses relative to residences.
    So if you shift it----
    Mr. Cannon. I see that my time has expired.
    But let me just point out, in response to that last point, 
that that is generally true. But the nature of 
telecommunications is different from the nature of electricity 
and other kinds of services like that, in that communication is 
the foundation for progress for people. That is individual 
progress I am talking about. And, therefore, the regressivity, 
I believe, that is reflected in these kinds of taxes on cell-
phone devices, or what Ms. Lofgren calls ``computational 
devices,'' is profoundly important.
    And with that, Madam Chair, I yield back.
    Ms. Sanchez. The gentleman yields back.
    At this time, I would like to recognize Zoe Lofgren, for 5 
minutes.
    Ms. Lofgren. Thank you, Madam Chair.
    And I went and, over the break, I had my staff get a copy 
of the innovation agenda that was rolled out by Speaker Pelosi, 
Congresswoman Anna Eshoo and myself, in September of 2005, 
actually. And on the front cover, there is a quote from John F. 
Kennedy.
    And it goes like this: ``The vows of this Nation can only 
be fulfilled if we are first. And, therefore, we intend to be 
first. Our leadership in science and in industry, our hopes for 
peace and security, our obligations to ourselves, as well as 
others, all require us to make this effort.''
    And in the innovation agenda, we outlined, really, five 
things that we needed to do. And number three was ``Affordable 
Broadband Access for all Americans.'' That was right behind 
``Basic Research'' and an ``Educated Workforce.''
    And the reason why is that this is not just another good 
and service. Broadband is an enabler of everything else. As we 
said in the innovation agenda, the deployment of high-speed, 
always-on broadband, Internet and mobile communications is 
going to fuel the development of millions of new jobs in the 
U.S.
    And just as railroads and highways did in the past, 
broadband and mobile communications are going to dramatically 
increase productivity, efficiency of our economy. And so this 
is an adopted policy of House Democrats. And it is our guiding 
principle of how we are going to sort through issues in the 
Nation's interest.
    This isn't just something that is of interest to cities or 
counties. This is a nationwide policy issue, which is why we 
are here today.
    Now, I just wanted to note--and then I will get into a 
quick question--the telecommunications companies aren't paying 
these taxes. I mean, they are here advocating, I think, because 
they are concerned that, at some level, when you get too high, 
usage will drop off. I am not saying they are a disinterested 
party. But they are not paying these taxes. It is individuals.
    And, actually, the reason why I got interested in this is 
that, especially for low-income people, this is going to be the 
way to the Internet superhighway. And if we prevent low-income 
Americans from having that access to broadband, then our 
ability to meet the innovation-agenda goals is going to be 
impaired.
    Now, it has been suggested that this is an unprecedented 
step to take this. I don't think that is correct. We did do the 
Internet-tax moratorium for exactly the same reason that this 
bill has been introduced. It is the same issue, which is 
broadband, and the enabler of innovation pursuant to our 
innovation agenda.
    But I am wondering, Mr. Mackey, do you have other examples 
where Congress, because of a national policy issue, took a 
similar type of action?
    Mr. Mackey. Thank you. And I agree 100 percent with the 
premise that you just laid out.
    Yes, there have been other examples where Congress has 
decided that there is a compelling national interest--back in 
the 1970's, when the railroad industry was in a lot of trouble. 
And what was going on is a lot of localities were sort of 
disproportionately taxing the property of railroads because 
they just had a sliver or ribbon of land that went through 
their community.
    Congress decided it was in the national interest to have a 
national framework where local governments would be permitted 
to tax railroad property, and tax railroads, but not in a way 
that discriminates. So there is somewhat of a parallel to this.
    There is also other instances, I think, with the airline 
and Interstate Motor Carrier Regulation, where Congress has 
stepped in and proscribed or prohibited local governments from 
taxing those things.
    But, clearly, you know, we don't ask you to take this step 
lightly. And we have tried to work with localities, as I have 
said earlier----
    Ms. Lofgren. Right.
    Mr. Mackey [continuing]. For the past decade. But it is our 
feeling, for the reasons you stated, Representative Lofgren, 
that there is a compelling national interest that, if we set up 
a framework where States and local governments can tax 
telecom--we can do so fairly, in a nondiscriminatory manner--we 
are going to grow the jobs. We are going to, actually, we 
think, create more tax revenue because of the applications that 
are going to run and the jobs that are going to be created----
    Ms. Lofgren. I am about to run out of time. And I do think 
the rationale--for example, hotel taxes--I mean, we did high 
hotel taxes when I was in local government, because it is 
always easier to tax somebody else's constituents.
    But, you know, actually, people don't really look at the 
hotel tax. It is not the same kind of enabler of growth. It is 
not a fundamental building block of a high-tech innovation, 
educated society. It is not an enabler of other things in the 
same way that this is.
    I had other questions, but I have run out of time, Madam 
Chairwoman. I don't want to abuse the process. So I yield back.
    Ms. Sanchez. The gentlelady yields back.
    Yes?
    Mr. Cannon. Madam Chair, I would like to ask unanimous 
consent to have included in the record the opening statement by 
the Ranking Member of the full Committee, Mr. Lamar Smith.
    Ms. Sanchez. Without objection, so ordered.
    [The prepared statement of Mr. Smith follows:]

 Prepared Statement of the Honorable Lamar Smith, a Representative in 
Congress from the State of Texas, and Ranking Member, Committee on the 
                               Judiciary

    Madame Chair, I would like to thank you for bringing attention 
during this Congress to a variety of discriminatory taxes.
    This is the latest in a series of hearings that have covered the 
Internet tax moratorium, the Mobile Workforce State Tax Simplification 
Act, the Business Activity Tax Simplification Act, and the State Video 
Tax Fairness Act.
    I would also like to thank Ranking Member Cannon for his leadership 
on this and so many other issues before the Commercial and 
Administrative Law Subcommittee. He has been instrumental in getting 
many bills passed during his tenure on the Committee and his insight, 
knowledge, and commitment will be missed next year.
    As for the ``Cell Tax Fairness Act of 2008'', through my 
involvement with the Internet tax moratorium and other matters it has 
become clear to me that telecommunications firms and consumers, and, in 
particular, wireless services, are taxed higher at the state level than 
many other businesses.
    In our increasingly mobile economy, we should encourage the 
deployment of cell phone and wireless devices and not inhibit them 
through higher taxes. The fact that these devices travel through 
interstate commerce and facilitate interstate commerce certainly gives 
Congress the authority to constrain the states' taxing authority.
    However, just because Congress has the authority to do something 
does not mean that it should necessarily exercise that authority in 
every case. I am well aware that the power to tax power has 
traditionally been within the purview of the states. And given our 
shaky economy, I can certainly sympathize with states' concerns about 
losing revenue because of Congressional intervention.
    So, I look forward to hearing from all our witnesses to see if 
there is a way that we can weigh the disproportionate taxation of 
telecommunications companies and consumers against the needs of states' 
treasuries.

    Ms. Sanchez. And I would also ask that the opening 
statement from the Chairman of the full Committee, Mr. Conyers, 
be entered into the record, as well----
    Mr. Cannon. Thank you.
    Ms. Sanchez [continuing]. And without objection, so 
ordered.
    [The prepared statement of Chairman Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
 Judiciary, and Member, Subcommittee on Commercial and Administrative 
                                  Law

    As Members of Congress, we must carefully balance competing 
interests. We must ensure that the States do not burden interstate 
commerce through their taxing authority, while also ensuring that the 
authority of States to tax activity within their borders is maintained.
    Today, we consider H.R. 5793, the ``Cell Tax Fairness Act of 
2008,'' which seeks to impose a five-year moratorium on any new 
discriminatory taxes and fees on mobile services, mobile service 
providers, and mobile service property.
    According to reports, taxes and fees account for about 15% of a 
consumer's wireless services monthly bill. That burden seems higher 
than the burden imposed on other services and products. That burden 
could affect the free flow of commerce, stifle innovation, and be 
considered a regressive impact.
    However, we are in the midst of a dire economic environment, where 
State and local revenues are declining fast, especially in my home 
state of Michigan. According to estimates, state and local governments 
rely on revenue from telecommunications for about $20 billion per year. 
Thus, we need to look carefully at any legislation, including this one, 
that could further impact State and local revenues and a state or local 
government's ability to provide its residents essential services.
    I look forward to today's hearing, and hope it will achieve three 
critical objectives.
    First, it should serve as a venue where we examine the taxes and 
fees imposed on wireless services and providers.
    Second, this hearing should allow us to focus on H.R. 5793, which 
responds to concerns voiced by the wireless industry regarding what it 
perceives as a discriminatory burden imposed on them by State and local 
taxing authorities.
    Third, this hearing should serve to begin a dialogue on State and 
local taxation of communications. And I urge each state and locality to 
revisit, simplify, and modernize its communications tax structure in 
light of technological advances.
    I thank Chairwoman Sanchez for holding this important hearing, and 
I very much look forward to hearing today from the witnesses.

    Mr. Cannon. And may I also apologize. We were laughing up 
here. And that is sometimes a little coarse. I just wanted to 
let people know that I was reading to staff the very kind 
remarks that Mr. Smith had made about me, which were kind 
enough to be laughed at.
    Thank you, folks. We appreciate the seriousness of this 
panel, and our guests here. And I want to make it clear that we 
were laughing about something other than the subject matter 
here. Thank you.
    Ms. Sanchez. Okay; duly noted, for the record.
    At this time, I would recognize the gentleman from Florida, 
Mr. Keller, for 5 minutes of questions.
    Mr. Keller. Thank you, Madam Chairwoman.
    Senator Clayborne, let me start with you. How long have you 
been in the Illinois State Senate?
    Mr. Clayborne. About 13\1/2\ years.
    Mr. Keller. Thirteen years--so you served with Senator 
Obama?
    Mr. Clayborne. That is correct.
    Mr. Keller. As you can tell from our questioning, it is a 
pretty bipartisan issue, at least, on the House side. Over on 
the Senate side, Senator McCain has introduced the cell-phone 
tax moratorium, S. 166, which he successfully got through the 
Commerce Committee.
    Have you had a chance to talk with your colleague, U.S. 
Senator, Barack Obama, to see if you can persuade him along the 
same lines as Senator McCain, on this issue?
    Mr. Clayborne. No. No, I have not talked to Senator Obama 
about this issue.
    Mr. Keller. Do you have any sense of optimism that you can 
win him over?
    No?
    Ms. Mahoney, do you know where he is on this? You got him?
    Ms. Mahoney. I would say that you will not be able to 
convince the senator on this issue.
    Mr. Keller. All right. Okay--could have a vote present on 
this one here.
    Let me turn to you, Mr. Mackey.
    Now, I have noticed that my home state of Florida has about 
the third highest cell-phone taxes. And Virginia is sort of the 
middle of the pack--I think, around number 36. Yet, Florida 
sort of failed to pass their reform legislation to address this 
issue, while Virginia was quite successful.
    What do you attribute the two dynamics of that to?
    Mr. Mackey. Well, I mean, I think Florida is--because you 
don't have an income tax, it makes it that much more difficult 
to try to replace the kind of money that is on the table.
    I think, because Florida localities had, historically, been 
granted a large amount of tax autonomy, there was a--they were 
taxing at extraordinarily high rates. And so there was a lot of 
money that needed to be replaced. And, politically, they 
couldn't come up with--they got halfway to reform.
    They made it so telecom companies don't have to file 
hundreds or thousands of returns for local jurisdiction, and 
they centralized. But, unfortunately--and this is the problem 
we face everywhere--they were unable to get the rate down to 
where there is not a significant disparity.
    Mr. Keller. All right. Well, let me ask you: You seem to 
think that these taxes have been a pretty good target for 
localities to increase. Why do you think they are choosing to 
increase the cell-phone taxes by a significant amount?
    Mr. Mackey. Well, I think some of it is a historical relic 
to the old days of regulation. I mean, the localities, because 
telecom companies had to use their rights of way, they had the 
ability to tax them and impose fees on them. And, then, when 
wireless came along to compete, and wireless didn't have that 
same situation, they had already had a well-established right, 
if you will, to tax communications companies.
    And their argument was, ``Reform equals `Let us make 
wireless pay what we have historically made the wire-line guys 
pay'.''
    Mr. Keller. Now, Mr. Lay--and I am just paraphrasing--sort 
of says, ``Well, look. If you are city councilman comes up with 
some huge tax increase that you don't like on the cell phone, 
you have a remedy. Just vote him out.'' Why is that not a 
sufficient remedy under your view?
    Mr. Mackey. Well, in my opinion--and some of it gets back 
to what Mr. Cannon said. I think, a lot of times, you know, 
people are busy. And, you know, these bills come in. And, 
frequently, people don't focus on how much tax is being imposed 
on the bill.
    In some respects, you know, it is a hidden tax. It is on 
the bill, but who is--people don't always go through their 
bills. So I think one of the reasons is that it is a tax that 
can be raised without people paying a lot of attention to it.
    Mr. Keller. Ms. Mahoney, you are a local elected official. 
Would you have concerns if--you know, as someone sitting for 
election--if you had a big tax-increase vote on a cell-phone 
issue?
    Ms. Mahoney. I would be very concerned. And one of the 
things that, you know, I have said, is that I think it is so 
important if--I mean, if we are going to level the playing 
field----
    Mr. Keller. Right.
    Ms. Mahoney [continuing]. You know, let us level it.
    But, I mean, my fear is we start preempting these things, 
you know, and pulling people out and separating them 
individually--who is going to be before you next?
    Mr. Keller. Right.
    Ms. Mahoney. At the local level, for us to not have the 
ability to say to our constituents--and we have to show them 
how the money is going to be used--how we are going to use it.
    And so if I come to them and say, ``Oh, we are just raising 
it because we are going to give the employees a raise,'' that 
is totally different than saying, ``I am not going to be able 
to keep the fire department going. I am not going to be able 
to, you know, keep our 911 system going. I am not going to be 
able to do these things.''
    That is totally different. But that is the constituents 
that we speak to. And I think that is how you become elected--
when you address the individual needs of the consumer.
    Mr. Keller. All right. Well, thank you.
    I am sorry, Mr. Lay, I didn't get a chance to get to you. 
But my time is expired. And I am sure my other colleagues will 
follow up with that.
    And I yield back to the balance of my time.
    Ms. Sanchez. The gentleman yields back.
    I really want to thank all of the witnesses for their 
testimony today, and, again, for being so patient through the 
interruption.
    Without objection, Members will have 5 legislative days to 
submit any additional written questions, which we will forward 
to the witnesses and ask that you answer as promptly as you 
can, so that we can make them a part of the record.
    Without objection, the record will remain open for 5 
legislative days, for the submission of any other additional 
material.
    Again, thanks to everybody for participating in this 
hearing. And this hearing of the Subcommittee on Commercial and 
Administrative Law is adjourned.
    [Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record


 Answers to Post-Hearing Questions from Gail W. Mahoney, Commissioner, 
   Jackson County, Michigan, Jackson, MI, on behalf of the National 
                        Association of Counties





                                

 Answers to Post-Hearing Questions from the Honorable James Clayborne, 
                 Illinois State Senator, Belleville, IL



                                

     Answers to Post-Hearing Questions from Scott Mackey, Esquire, 
                 Kimbell Sherman Ellis, Montpelier, VT











                                

Answers to Post-Hearing Questions from Tillman L. Lay, Esquire, Spiegel 
 & McDiarmid, LLP, Washington, DC, on behalf of the U.S. Conference of 
Mayors, the National League of Cities, the Government Finance Officers 
 Association, the National Association of Telecommunications Officers 
                           and Administrators















                                 
