I 

112TH CONGRESS 

1ST SESSION H. R. 1002 

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 10, 2011 

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

SMITH of Texas, Mr. COHEN, Mr. COBLE, Ms. JACKSON LEE of Texas, 

Mr. SENSENBRENNER, Mr. HALL, Mr. ROGERS of Kentucky, Mr. ACKERMAN, Mr. BARTON of Texas, Mr. GALLEGLY, Mr. UPTON, Mr. PALLONE, 

Mr. STEARNS, Ms. ESHOO, Mr. GENE GREEN of Texas, Mr. GUTIERREZ, 

Mr. HASTINGS of Florida, Mr. HOLDEN, Ms. EDDIE BERNICE JOHNSON

of Texas, Mr. KING of New York, Mrs. MALONEY, Ms. ROYBAL-ALLARD, 

Mr. ROYCE, Mr. THOMPSON of Mississippi, Mr. LUCAS, Mr. DOGGETT, 

Mr. DOYLE, Mr. FRELINGHUYSEN, Mr. JONES, Mr. LATHAM, Mr. 

LOBIONDO, Mrs. MYRICK, Mr. WHITFIELD, Mr. BRADY of Texas, Mrs. 

MCCARTHY of New York, Mr. MCGOVERN, Mr. PASCRELL, Mr. PITTS, 

Mr. ROTHMAN of New Jersey, Ms. LORETTA SANCHEZ of California, Mr. 

SESSIONS, Mr. SHIMKUS, Mr. MEEKS, Mrs. BONO MACK, Mr. BRADY of 

Pennsylvania, Mr. INSLEE, Mr. CHABOT, Mrs. BIGGERT, Mr. GONZALEZ, 

Mr. HOLT, Mr. SIMPSON, Mr. WEINER, Mr. CRENSHAW, Mr. 

CULBERSON, Mr. GRAVES of Missouri, Mr. ISRAEL, Mr. MATHESON, Mr. 

PLATTS, Mr. REHBERG, Mr. ROGERS of Michigan, Mr. ROSS of Arkansas, Mr. TIBERI, Mr. FORBES, Mr. WILSON of South Carolina, Mr. SULLIVAN, Mr. ALEXANDER, Mr. BISHOP of New York, Mrs. BLACKBURN, 

Mr. BURGESS, Mr. CARDOZA, Mr. CARTER, Mr. COLE, Mr. GARRETT, 

Mr. GERLACH, Mr. GRIJALVA, Mr. KING of Iowa, Mr. KLINE, Mr. MURPHY of Pennsylvania, Mr. RYAN of Ohio, Mr. DAVID SCOTT of Georgia, 

Mr. BARROW, Mr. BOREN, Mr. BOUSTANY, Mr. CONAWAY, Mr. COSTA, 

Mr. DENT, Ms. FOXX, Mr. MCCAUL, Mrs. MCMORRIS RODGERS, Mr. 

MACK, Mr. MARCHANT, Mr. POE of Texas, Mr. REICHERT, Ms. 

SCHWARTZ, Mr. WESTMORELAND, Ms. MATSUI, Mr. SIRES, Mrs. 

BACHMANN, Mr. HELLER, Mr. JORDAN, Mr. MCNERNEY, Mr. SHULER, 

Mr. SMITH of Nebraska, Ms. RICHARDSON, Mr. LATTA, Mr. WITTMAN, 

Ms. SPEIER, Mr. SCALISE, Mr. CHAFFETZ, Mr. HARPER, Mr. HUNTER, 

Mr. LANCE, Mr. OLSON, Mr. PAULSEN, Mr. POSEY, Mr. ROONEY, Mr. 

THOMPSON of Pennsylvania, Mr. OWENS, Mr. CRITZ, Mr. REED, Mr. 

FITZPATRICK, Mrs. ADAMS, Mr. BARLETTA, Mrs. BLACK, Mr. GOSAR, 

Mr. GRIMM, Mr. HANNA, Mr. HUELSKAMP, Mr. HULTGREN, Mr. LONG, 


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Mr. MCKINLEY, Mrs. NOEM, Mr. QUAYLE, Mr. RUNYAN, Mr. SMITH of 

New Jersey, Mr. BROUN of Georgia, Mr. CALVERT, Mr. DANIEL E. LUNGREN of California, Ms. GRANGER, Mr. BURTON of Indiana, Mr. GRIFFIN

of Arkansas, Mr. TONKO, and Mr. HINOJOSA) 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 ‘‘Wireless Tax Fairness 

5 Act of 2011’’. 

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 

10 Amendment to the Constitution of the United States 

11 and Congress’ plenary power under article I, section 

12 8, clause 3 of the Constitution of the United States 

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

14 order to ensure that States and political subdivisions 

15 thereof do not discriminate against providers and 

16 consumers of mobile services by imposing new selecVerDate Mar 15 2010 03:42 Mar 11, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1002.IH H1002

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1 tive and excessive taxes and other burdens on such 

2 providers and consumers. 

3 (2) In light of the history and pattern of dis4 criminatory taxation faced by providers and con5 sumers of mobile services, the prohibitions against 

6 and remedies to correct discriminatory State and 

7 local taxation in section 306 of the Railroad Revital8 ization and Regulatory Reform Act of 1976 (49 

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

10 congressional action, and similar Federal legislative 

11 measures are warranted that will prohibit imposing 

12 new discriminatory taxes on providers and con13 sumers of mobile services and that will assure an ef14 fective, uniform remedy. 

15 SEC. 3. MORATORIUM. 

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

17 impose a new discriminatory tax on or with respect to mo18 bile services, mobile service providers, or mobile service 

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

20 of enactment of this Act. 

21 (b) DEFINITIONS.—In this Act: 

22 (1) MOBILE SERVICE.—The term ‘‘mobile serv23 ice’’ means commercial mobile radio service, as such 

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

25 Federal Regulations, as in effect on the date of enVerDate Mar 15 2010 03:42 Mar 11, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1002.IH H1002

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1 actment of this Act, or any other service that is pri2 marily intended for receipt on, transmission from, or 

3 use with a mobile telephone or other mobile device, 

4 including but not limited to the receipt of a digital 

5 good. 

6 (2) MOBILE SERVICE PROPERTY.—The term 

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

8 by a mobile service provider in connection with its 

9 business of providing mobile services, whether real, 

10 personal, tangible, or intangible (including goodwill, 

11 licenses, customer lists, and other similar intangible 

12 property associated with such business). 

13 (3) MOBILE SERVICE PROVIDER.—The term 

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

15 or provides mobile services, but only to the extent 

16 that such entity sells or provides mobile services. 

17 (4) NEW DISCRIMINATORY TAX.—The term 

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

19 State or local jurisdiction that is imposed on or with 

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

21 or revenues from or value of— 

22 (A) a mobile service and is not generally 

23 imposed, or is generally imposed at a lower 

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

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1 ices or transactions involving tangible personal 

2 property; 

3 (B) a mobile service provider and is not 

4 generally imposed, or is generally imposed at a 

5 lower rate, on other persons that are engaged 

6 in businesses other than the provision of mobile 

7 services; or 

8 (C) a mobile service property and is not 

9 generally imposed, or is generally imposed at a 

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

11 by the value of, other property that is devoted 

12 to a commercial or industrial use and subject to 

13 a property tax levy, except public utility prop14 erty owned by a public utility subject to rate of 

15 return regulation by a State or Federal regu16 latory authority; 

17 unless such tax was imposed and actually enforced 

18 on mobile services, mobile service providers, or mo19 bile service property prior to the date of enactment 

20 of this Act. 

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

22 ‘‘State or local jurisdiction’’ means any of the sev23 eral States, the District of Columbia, any territory 

24 or possession of the United States, a political sub25 division of any State, territory, or possession, or any 


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1 governmental entity or person acting on behalf of 

2 such State, territory, possession, or subdivision that 

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

4 taxes or fees. 

5 (6) TAX.— 

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

7 a charge imposed by a governmental entity for 

8 the purpose of generating revenues for govern9 mental purposes, and excludes a fee imposed on 

10 a particular entity or class of entities for a spe11 cific privilege, service, or benefit conferred ex12 clusively on such entity or class of entities. 

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

14 not include any fee or charge— 

15 (i) used to preserve and advance Fed16 eral universal service or similar State pro17 grams authorized by section 254 of the 

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

19 254); or 

20 (ii) specifically dedicated by a State or 

21 local jurisdiction for the support of E–911 

22 communications systems. 

23 (c) RULES OF CONSTRUCTION.— 

24 (1) DETERMINATION.—For purposes of sub25 section (b)(4), all taxes, tax rates, exemptions, deVerDate Mar 15 2010 03:42 Mar 11, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1002.IH H1002

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1 ductions, credits, incentives, exclusions, and other 

2 similar factors shall be taken into account in deter3 mining whether a tax is a new discriminatory tax. 

4 (2) APPLICATION OF PRINCIPLES.—Except as 

5 otherwise provided in this Act, in determining 

6 whether a tax on mobile service property is a new 

7 discriminatory tax for purposes of subsection 

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

9 section 306 of the Railroad Revitalization and Regu10 latory Reform Act of 1976 (49 U.S.C. 11501) shall 

11 apply. 

12 (3) EXCLUSIONS.—Notwithstanding any other 

13 provision of this Act— 

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

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

16 imposed only on— 

17 (i) specific services; 

18 (ii) specific industries or business seg19 ments; or 

20 (iii) specific types of property; and 

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

22 shall not include a new tax or the modification 

23 of an existing tax that— 

24 (i) replaces one or more taxes that 

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1 bile service providers, or mobile service 

2 property; and 

3 (ii) is designed so that, based on in4 formation available at the time of the en5 actment of such new tax or such modifica6 tion, the amount of tax revenues generated 

7 thereby with respect to such mobile serv8 ices, mobile service providers, or mobile 

9 service property is reasonably expected to 

10 not exceed the amount of tax revenues that 

11 would have been generated by the respec12 tive replaced tax or taxes with respect to 

13 such mobile services, mobile service pro14 viders, or mobile service property. 

15 SEC. 4. ENFORCEMENT. 

16 Notwithstanding any provision of section 1341 of title 

17 28, United States Code, or the constitution or laws of any 

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

19 jurisdiction, without regard to amount in controversy or 

20 citizenship of the parties, to grant such mandatory or pro21 hibitive injunctive relief, interim equitable relief, and de22 claratory judgments as may be necessary to prevent, re23 strain, or terminate any acts in violation of this Act. 


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1 (1) JURISDICTION.—Such jurisdiction shall not 

2 be exclusive of the jurisdiction which any Federal or 

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

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

5 in any proceeding brought under this Act shall be 

6 upon the party seeking relief and shall be by a pre7 ponderance of the evidence on all issues of fact. 

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

9 which is discriminatory or excessive under this Act 

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

11 shall prevent, restrain, or terminate the imposition, 

12 levy, or collection of not more than the discrimina13 tory or excessive portion of the tax as determined by 

14 the court. 

Æ 


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