II 

113TH CONGRESS 

1ST SESSION S. 1235 

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

tax on cell phone services, providers, or property. 

IN THE SENATE OF THE UNITED STATES 

JUNE 26, 2013 

Mr. WYDEN (for himself, Mr. TOOMEY, Mr. PRYOR, Mr. RUBIO, Mr. HELLER, 

Ms. AYOTTE, and Mrs. SHAHEEN) introduced the following bill; which 

was read twice and referred to the Committee on Finance 

A BILL 

To restrict any State or local jurisdiction from imposing 

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

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 ‘‘Wireless Tax Fairness 

5 Act of 2013’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) It is appropriate to exercise congressional 

9 enforcement authority under section 5 of the 14th 


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1 Amendment to the Constitution of the United States 

2 and Congress’ plenary power under article I, section 

3 8, clause 3 of the Constitution of the United States 

4 (commonly known as the ‘‘commerce clause’’) in 

5 order to ensure that States and political subdivisions 

6 thereof do not discriminate against providers and 

7 consumers of mobile services by imposing new selec8 tive and excessive taxes and other burdens on such 

9 providers and consumers. 

10 (2) In light of the history and pattern of dis11 criminatory taxation faced by providers and con12 sumers of mobile services, the prohibitions against 

13 and remedies to correct discriminatory State and 

14 local taxation in section 306 of the Railroad Revital15 ization and Regulatory Reform Act of 1976 (49 

16 U.S.C. 11501) provide an appropriate analogy for 

17 congressional action, and similar Federal legislative 

18 measures are warranted that will prohibit imposing 

19 new discriminatory taxes on providers and con20 sumers of mobile services and that will assure an ef21 fective, uniform remedy. 

22 SEC. 3. MORATORIUM. 

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

24 impose a new discriminatory tax on or with respect to mo25 bile services, mobile service providers, or mobile service 


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

2 of enactment of this Act. 

3 (b) DEFINITIONS.—In this Act: 

4 (1) MOBILE SERVICE.—The term ‘‘mobile serv5 ice’’ means commercial mobile radio service, as such 

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

7 Federal Regulations, as in effect on the date of en8 actment of this Act, or any other service that is pri9 marily intended for receipt on, transmission from, or 

10 use with a mobile telephone or other mobile device, 

11 including but not limited to the receipt of a digital 

12 good. 

13 (2) MOBILE SERVICE PROPERTY.—The term 

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

15 by a mobile service provider in connection with its 

16 business of providing mobile services, whether real, 

17 personal, tangible, or intangible (including goodwill, 

18 licenses, customer lists, and other similar intangible 

19 property associated with such business). 

20 (3) MOBILE SERVICE PROVIDER.—The term 

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

22 or provides mobile services, but only to the extent 

23 that such entity sells or provides mobile services. 

24 (4) NEW DISCRIMINATORY TAX.—The term 

25 ‘‘new discriminatory tax’’ means a tax imposed by a 


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1 State or local jurisdiction that is imposed on or with 

2 respect to, or is measured by, the charges, receipts, 

3 or revenues from or value of— 

4 (A) a mobile service and is not generally 

5 imposed, or is generally imposed at a lower 

6 rate, on or with respect to, or measured by, the 

7 charges, receipts, or revenues from other serv8 ices or transactions involving tangible personal 

9 property; 

10 (B) a mobile service provider and is not 

11 generally imposed, or is generally imposed at a 

12 lower rate, on other persons that are engaged 

13 in businesses other than the provision of mobile 

14 services; or 

15 (C) a mobile service property and is not 

16 generally imposed, or is generally imposed at a 

17 lower rate, on or with respect to, or measured 

18 by the value of, other property that is devoted 

19 to a commercial or industrial use and subject to 

20 a property tax levy, except public utility prop21 erty owned by a public utility subject to rate of 

22 return regulation by a State or Federal regu23 latory authority; 

24 unless such tax was imposed and actually enforced 

25 on mobile services, mobile service providers, or moVerDate Mar 15 2010 03:20 Jul 02, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1235.IS S1235

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1 bile service property prior to the date of enactment 

2 of this Act. 

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

4 ‘‘State or local jurisdiction’’ means any of the sev5 eral States, the District of Columbia, any territory 

6 or possession of the United States, a political sub7 division of any State, territory, or possession, or any 

8 governmental entity or person acting on behalf of 

9 such State, territory, possession, or subdivision that 

10 has the authority to assess, impose, levy, or collect 

11 taxes or fees. 

12 (6) TAX.— 

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

14 a charge imposed by a governmental entity for 

15 the purpose of generating revenues for govern16 mental purposes, and excludes a fee imposed on 

17 a particular entity or class of entities for a spe18 cific privilege, service, or benefit conferred ex19 clusively on such entity or class of entities. 

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

21 not include any fee or charge— 

22 (i) used to preserve and advance Fed23 eral universal service or similar State pro24 grams authorized by section 254 of the 


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

2 254); 

3 (ii) specifically dedicated by a State or 

4 local jurisdiction for the support of E–911 

5 communications systems; or 

6 (iii) used to preserve and advance 

7 Federal telecommunications relay services 

8 or State programs implementing this Fed9 eral mandate pursuant to title IV of the 

10 Americans with Disabilities Act of 1990 

11 (Public Law 101–336; 104 Stat. 327) and 

12 codified in section 225 of the Communica13 tions Act of 1934 (47 U.S.C. 225). 

14 (c) RULES OF CONSTRUCTION.— 

15 (1) DETERMINATION.—For purposes of sub16 section (b)(4), all taxes, tax rates, exemptions, de17 ductions, credits, incentives, exclusions, and other 

18 similar factors shall be taken into account in deter19 mining whether a tax is a new discriminatory tax. 

20 (2) APPLICATION OF PRINCIPLES.—Except as 

21 otherwise provided in this Act, in determining 

22 whether a tax on mobile service property is a new 

23 discriminatory tax for purposes of subsection 

24 (b)(4)(C), principles similar to those set forth in sec25 tion 306 of the Railroad Revitalization and ReguVerDate Mar 15 2010 03:20 Jul 02, 2013 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1235.IS S1235

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1 latory Reform Act of 1976 (49 U.S.C. 11501) shall 

2 apply. 

3 (3) EXCLUSIONS.—Notwithstanding any other 

4 provision of this Act— 

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

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

7 imposed only on— 

8 (i) specific services; 

9 (ii) specific industries or business seg10 ments; or 

11 (iii) specific types of property; and 

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

13 shall not include a new tax or the modification 

14 of an existing tax that either— 

15 (i)(I) replaces one or more taxes that 

16 had been imposed on mobile services, mo17 bile service providers, or mobile service 

18 property; and 

19 (II) is designed so that, based on in20 formation available at the time of the en21 actment of such new tax or such modifica22 tion, the amount of tax revenues generated 

23 thereby with respect to such mobile serv24 ices, mobile service providers, or mobile 

25 service property is reasonably expected to 


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1 not exceed the amount of tax revenues that 

2 would have been generated by the respec3 tive replaced tax or taxes with respect to 

4 such mobile services, mobile service pro5 viders, or mobile service property; or 

6 (ii) is a local jurisdiction tax that may 

7 not be imposed without voter approval, 

8 provides for at least 90 days’ prior notice 

9 to mobile service providers, and is required 

10 by law to be collected from mobile service 

11 customers. 

12 SEC. 4. ENFORCEMENT. 

13 Notwithstanding any provision of section 1341 of title 

14 28, United States Code, or the constitution or laws of any 

15 State, the district courts of the United States shall have 

16 jurisdiction, without regard to amount in controversy or 

17 citizenship of the parties, to grant such mandatory or pro18 hibitive injunctive relief, interim equitable relief, and de19 claratory judgments as may be necessary to prevent, re20 strain, or terminate any acts in violation of this Act. 

21 (1) JURISDICTION.—Such jurisdiction shall not 

22 be exclusive of the jurisdiction which any Federal or 

23 State court may have in the absence of this section. 

24 (2) BURDEN OF PROOF.—The burden of proof 

25 in any proceeding brought under this Act shall be 


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1 upon the party seeking relief and shall be by a pre2 ponderance of the evidence on all issues of fact. 

3 (3) RELIEF.—In granting relief against a tax 

4 which is discriminatory or excessive under this Act 

5 with respect to tax rate or amount only, the court 

6 shall prevent, restrain, or terminate the imposition, 

7 levy, or collection of not more than the discrimina8 tory or excessive portion of the tax as determined by 

9 the court. 

10 SEC. 5. GAO STUDY. 

11 (a) STUDY.—The Comptroller General of the United 

12 States shall conduct a study, throughout the 5-year period 

13 beginning on the date of the enactment of this Act, to 

14 determine— 

15 (1) how, and the extent to which, taxes imposed 

16 by local and State jurisdictions on mobile services, 

17 mobile service providers, or mobile property, impact 

18 the costs consumers pay for mobile services; and 

19 (2) the extent to which the moratorium on dis20 criminatory mobile services taxes established in this 

21 Act has any impact on the costs consumers pay for 

22 mobile services. 

23 (b) REPORT.—Not later than 6 years after the date 

24 of the enactment of this Act, the Comptroller General shall 

25 submit, to the Committee on the Judiciary of the House 


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1 of Representatives and the Committee on the Judiciary 

2 of the Senate, a report containing the results of the study 

3 required under subsection (a) and shall include in such 

4 report recommendations for any changes to laws and regu5 lations relating to such results. 

Æ 


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