IIB 

112TH CONGRESS 

1ST SESSION H. R. 1002 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 2, 2011 

Received, read twice and referred to the Committee on Finance 

AN ACT 

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, 


smartinez on DSK6TPTVN1PROD with BILLS
2 

HR 1002 RFS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Wireless Tax Fairness 

3 Act of 2011’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds the following: 

6 (1) It is appropriate to exercise congressional 

7 enforcement authority under section 5 of the 14th 

8 Amendment to the Constitution of the United States 

9 and Congress’ plenary power under article I, section 

10 8, clause 3 of the Constitution of the United States 

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

12 order to ensure that States and political subdivisions 

13 thereof do not discriminate against providers and 

14 consumers of mobile services by imposing new selec15 tive and excessive taxes and other burdens on such 

16 providers and consumers. 

17 (2) In light of the history and pattern of dis18 criminatory taxation faced by providers and con19 sumers of mobile services, the prohibitions against 

20 and remedies to correct discriminatory State and 

21 local taxation in section 306 of the Railroad Revital22 ization and Regulatory Reform Act of 1976 (49 

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

24 congressional action, and similar Federal legislative 

25 measures are warranted that will prohibit imposing 

26 new discriminatory taxes on providers and conVerDate Mar 15 2010 02:00 Nov 03, 2011 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1002.RFS H1002

smartinez on DSK6TPTVN1PROD with BILLS
3 

HR 1002 RFS

1 sumers of mobile services and that will assure an ef2 fective, uniform remedy. 

3 SEC. 3. MORATORIUM. 

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

5 impose a new discriminatory tax on or with respect to mo6 bile services, mobile service providers, or mobile service 

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

8 of enactment of this Act. 

9 (b) DEFINITIONS.—In this Act: 

10 (1) MOBILE SERVICE.—The term ‘‘mobile serv11 ice’’ means commercial mobile radio service, as such 

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

13 Federal Regulations, as in effect on the date of en14 actment of this Act, or any other service that is pri15 marily intended for receipt on, transmission from, or 

16 use with a mobile telephone or other mobile device, 

17 including but not limited to the receipt of a digital 

18 good. 

19 (2) MOBILE SERVICE PROPERTY.—The term 

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

21 by a mobile service provider in connection with its 

22 business of providing mobile services, whether real, 

23 personal, tangible, or intangible (including goodwill, 

24 licenses, customer lists, and other similar intangible 

25 property associated with such business). 


smartinez on DSK6TPTVN1PROD with BILLS
4 

HR 1002 RFS

1 (3) MOBILE SERVICE PROVIDER.—The term 

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

3 or provides mobile services, but only to the extent 

4 that such entity sells or provides mobile services. 

5 (4) NEW DISCRIMINATORY TAX.—The term 

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

7 State or local jurisdiction that is imposed on or with 

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

9 or revenues from or value of— 

10 (A) a mobile service and is not generally 

11 imposed, or is generally imposed at a lower 

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

13 charges, receipts, or revenues from other serv14 ices or transactions involving tangible personal 

15 property; 

16 (B) a mobile service provider and is not 

17 generally imposed, or is generally imposed at a 

18 lower rate, on other persons that are engaged 

19 in businesses other than the provision of mobile 

20 services; or 

21 (C) a mobile service property and is not 

22 generally imposed, or is generally imposed at a 

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

24 by the value of, other property that is devoted 

25 to a commercial or industrial use and subject to 


smartinez on DSK6TPTVN1PROD with BILLS
5 

HR 1002 RFS

1 a property tax levy, except public utility prop2 erty owned by a public utility subject to rate of 

3 return regulation by a State or Federal regu4 latory authority; 

5 unless such tax was imposed and actually enforced 

6 on mobile services, mobile service providers, or mo7 bile service property prior to the date of enactment 

8 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 that 

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

17 taxes or fees. 

18 (6) TAX.— 

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

20 a charge imposed by a governmental entity for 

21 the purpose of generating revenues for govern22 mental purposes, and excludes a fee imposed on 

23 a particular entity or class of entities for a spe24 cific privilege, service, or benefit conferred ex25 clusively on such entity or class of entities. 


smartinez on DSK6TPTVN1PROD with BILLS
6 

HR 1002 RFS

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)(C), principles similar to those set forth in sec22 tion 306 of the Railroad Revitalization and Regu23 latory Reform Act of 1976 (49 U.S.C. 11501) shall 

24 apply. 


smartinez on DSK6TPTVN1PROD with BILLS
7 

HR 1002 RFS

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 either— 

13 (i)(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 respecVerDate Mar 15 2010 02:00 Nov 03, 2011 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1002.RFS H1002

smartinez on DSK6TPTVN1PROD with BILLS
8 

HR 1002 RFS

1 tive replaced tax or taxes with respect to 

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

4 (ii) is a local jurisdiction tax that may 

5 not be imposed without voter approval, 

6 provides for at least 90 days’ prior notice 

7 to mobile service providers, and is required 

8 by law to be collected from mobile service 

9 customers. 

10 SEC. 4. ENFORCEMENT. 

11 Notwithstanding any provision of section 1341 of title 

12 28, United States Code, or the constitution or laws of any 

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

14 jurisdiction, without regard to amount in controversy or 

15 citizenship of the parties, to grant such mandatory or pro16 hibitive injunctive relief, interim equitable relief, and de17 claratory judgments as may be necessary to prevent, re18 strain, or terminate any acts in violation of this Act. 

19 (1) JURISDICTION.—Such jurisdiction shall not 

20 be exclusive of the jurisdiction which any Federal or 

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

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

23 in any proceeding brought under this Act shall be 

24 upon the party seeking relief and shall be by a pre25 ponderance of the evidence on all issues of fact. 


smartinez on DSK6TPTVN1PROD with BILLS
9 

HR 1002 RFS

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

2 which is discriminatory or excessive under this Act 

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

4 shall prevent, restrain, or terminate the imposition, 

5 levy, or collection of not more than the discrimina6 tory or excessive portion of the tax as determined by 

7 the court. 

8 SEC. 5. GAO STUDY. 

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

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

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

12 determine— 

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

14 by local and State jurisdictions on mobile services, 

15 mobile service providers, or mobile property, impact 

16 the costs consumers pay for mobile services; and 

17 (2) the extent to which the moratorium on dis18 criminatory mobile services taxes established in this 

19 Act has any impact on the costs consumers pay for 

20 mobile services. 

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

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

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

24 of Representatives and Committee on the Judiciary of the 

25 Senate, a report containing the results of the study reVerDate Mar 15 2010 02:00 Nov 03, 2011 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1002.RFS H1002

smartinez on DSK6TPTVN1PROD with BILLS
10 

HR 1002 RFS

1 quired subsection (a) and shall include in such report rec2 ommendations for any changes to laws and regulations re3 lating to such results. 

Passed the House of Representatives November 1, 

2011. 

Attest: KAREN L. HAAS, 

Clerk. 


smartinez on DSK6TPTVN1PROD with BILLS