I 

111TH CONGRESS 

1ST SESSION H. R. 1521 

To restrict any State or local jurisdiction from imposing a new discriminatory 

tax on cell phone services, providers, or property. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 16, 2009 

Ms. ZOE LOFGREN of California (for herself, Mr. FRANKS of Arizona, Mr. 

COHEN, Mr. SMITH of Texas, Mrs. BONO MACK, Mr. SENSENBRENNER, 

Ms. ESHOO, Mr. COBLE, Ms. JACKSON-LEE of Texas, Mr. WEXLER, Mr. 

JORDAN of Ohio, Mr. GUTIERREZ, Mr. ISSA, Mr. GONZALEZ, Mr. 

CARDOZA, Mr. FORBES, Mr. COSTA, Mr. WITTMAN, Mr. BACA, Mr. 

RADANOVICH, Mr. GENE GREEN of Texas, and Mr. BERRY) introduced 

the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To restrict any State or local jurisdiction from imposing 

a new discriminatory tax on cell phone services, providers, or property. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Cell Tax Fairness Act 

5 of 2009’’. 

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1 SEC. 2. MORATORIUM. 

2 (a) IN GENERAL.—No State or local jurisdiction shall 

3 impose a new discriminatory tax on or with respect to mo4 bile services, mobile service providers, or mobile service 

5 property, during the 5-year period beginning on the date 

6 of enactment of this Act. 

7 (b) DEFINITIONS.—In this Act: 

8 (1) MOBILE SERVICE.—The term ‘‘mobile serv9 ice’’ means commercial mobile radio service, as such 

10 term is defined in section 20.3 of title 47, Code of 

11 Federal Regulations, as in effect on the date of en12 actment of this Act, or any other service that is pri13 marily intended for receipt on, transmission from, or 

14 use with a mobile telephone, including but not lim15 ited to the receipt of a digital good. 

16 (2) MOBILE SERVICE PROPERTY.—The term 

17 ‘‘mobile service property’’ means all property used 

18 by a mobile service provider in connection with its 

19 business of providing mobile services, whether real, 

20 personal, tangible, or intangible and includes, but is 

21 not limited to goodwill, licenses, customer lists, and 

22 other similar intangible property associated with 

23 such business. 

24 (3) MOBILE SERVICE PROVIDER.—The term 

25 ‘‘mobile service provider’’ means any entity that sells 

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1 or provides mobile services, but only to the extent 

2 that such entity sells or provides mobile services. 

3 (4) NEW DISCRIMINATORY TAX.—The term 

4 ‘‘new discriminatory tax’’ means any tax imposed by 

5 a State or local jurisdiction that— 

6 (A) is imposed on or with respect to, or is 

7 measured by the charges, receipts, or revenues 

8 from or value of— 

9 (i) any mobile service and is not gen10 erally imposed, or is generally imposed at 

11 a lower rate, on or with respect to, or 

12 measured by the charges, receipts or reve13 nues from, other services or transactions 

14 involving tangible personal property; 

15 (ii) any mobile service provider and is 

16 not generally imposed, or is generally im17 posed at a lower rate, on other persons 

18 that are engaged in businesses other than 

19 the provision of mobile services; or 

20 (iii) any mobile service property and is 

21 not generally imposed, or is generally im22 posed at a lower rate, on or with respect 

23 to, or measured by the value of, other 

24 property that is devoted to a commercial or 

25 industrial use and subject to a property 

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1 tax levy, except public utility property 

2 owned by a public utility subject to rate of 

3 return regulation by a State or Federal 

4 regulatory authority; and 

5 (B) was not generally imposed and actually 

6 enforced on mobile services, mobile service pro7 viders, or mobile service property prior to the 

8 date of enactment of this Act. 

9 (5) STATE OR LOCAL JURISDICTION.—The term 

10 ‘‘State or local jurisdiction’’ means any of the sev11 eral States, the District of Columbia, any territory 

12 or possession of the United States, a political sub13 division of any State, territory, or possession, or any 

14 governmental entity or person acting on behalf of 

15 such State, territory, possession, or subdivision and 

16 with the authority to assess, impose, levy, or collect 

17 taxes or fees. 

18 (6) TAX.— 

19 (A) IN GENERAL.—The term ‘‘tax’’ means 

20 any charge imposed by any governmental entity 

21 for the purpose of generating revenues for gov22 ernmental purposes, and is not a fee imposed 

23 on an individual entity or class of entities for 

24 a specific privilege, service, or benefit conferred 

25 exclusively on such entity or class of entities. 

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1 (B) EXCLUSION.—The term ‘‘tax’’ does 

2 not include any fee or charge— 

3 (i) used to preserve and advance Fed4 eral universal service or similar State pro5 grams authorized by section 254 of the 

6 Communications Act of 1934 (47 U.S.C. 

7 254); or 

8 (ii) specifically dedicated by a State or 

9 local jurisdiction for the support of E–911 

10 communications systems. 

11 (c) RULES OF CONSTRUCTION.— 

12 (1) DETERMINATION.—For purposes of sub13 section (b)(4), all taxes, tax rates, exemptions, de14 ductions, credits, incentives, exclusions, and other 

15 similar factors shall be taken into account in deter16 mining whether a tax is a new discriminatory tax. 

17 (2) APPLICATION OF PRINCIPLES.—Except as 

18 otherwise provided in this Act, in determining 

19 whether a tax on mobile service property is a new 

20 discriminatory tax for purposes of subsection 

21 (b)(4)(A)(iii), principles similar to those set forth in 

22 section 306 of the Railroad Revitalization and Regu23 latory Reform Act of 1976 (49 U.S.C. 11501) shall 

24 apply. 

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1 (3) EXCLUSIONS.—Notwithstanding any other 

2 provision of this Act— 

3 (A) the term ‘‘generally imposed’’ as used 

4 in subsection (b)(4) shall not apply to any tax 

5 imposed only on— 

6 (i) specific services; 

7 (ii) specific industries or business seg8 ments; or 

9 (iii) specific types of property; and 

10 (B) the term ‘‘new discriminatory tax’’ 

11 shall not include a new tax or the modification 

12 of an existing tax that— 

13 (i) replaces one or more taxes that 

14 had been imposed on mobile services, mo15 bile service providers, or mobile service 

16 property; and 

17 (ii) is designed so that, based on in18 formation available at the time of the en19 actment of such new tax or such modifica20 tion, the amount of tax revenues generated 

21 thereby with respect to such mobile serv22 ices, mobile service providers, or mobile 

23 service property is reasonably expected to 

24 not exceed the amount of tax revenues that 

25 would have been generated by the respecmstockstill on PROD1PC66 with BILLS

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1 tive replaced tax or taxes with respect to 

2 such mobile services, mobile service pro3 viders, or mobile service property. 

4 SEC. 3. ENFORCEMENT. 

5 (a) BURDEN OF PROOF.—The burden of proof in any 

6 proceeding brought under this Act shall be upon the party 

7 seeking relief and shall be by a preponderance of the evi8 dence on all issues of fact. 

9 (b) RELIEF.—In granting relief against a tax which 

10 is discriminatory or excessive under this Act with respect 

11 to tax rate or amount only, the court shall prevent, re12 strain, or terminate the imposition, levy, or collection of 

13 no more than the discriminatory or excessive portion of 

14 the tax as determined by the court. 

Æ 

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