II 

112TH CONGRESS 

1ST SESSION S. 543 

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 

MARCH 10, 2011 

Mr. WYDEN (for himself, Ms. SNOWE, Mrs. GILLIBRAND, Mr. MCCAIN, Mr. 

MENENDEZ, Mr. ENSIGN, Mr. NELSON of Florida, and Mr. BURR) 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 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 


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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 23:50 Mar 10, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S543.IS S543

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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); or 

3 (ii) specifically dedicated by a State or 

4 local jurisdiction for the support of E–911 

5 communications systems. 

6 (c) RULES OF CONSTRUCTION.— 

7 (1) DETERMINATION.—For purposes of sub8 section (b)(4), all taxes, tax rates, exemptions, de9 ductions, credits, incentives, exclusions, and other 

10 similar factors shall be taken into account in deter11 mining whether a tax is a new discriminatory tax. 

12 (2) APPLICATION OF PRINCIPLES.—Except as 

13 otherwise provided in this Act, in determining 

14 whether a tax on mobile service property is a new 

15 discriminatory tax for purposes of subsection 

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

17 section 306 of the Railroad Revitalization and Regu18 latory Reform Act of 1976 (49 U.S.C. 11501) shall 

19 apply. 

20 (3) EXCLUSIONS.—Notwithstanding any other 

21 provision of this Act— 

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

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

24 imposed only on— 

25 (i) specific services; 


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1 (ii) specific industries or business seg2 ments; or 

3 (iii) specific types of property; and 

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

5 shall not include a new tax or the modification 

6 of an existing tax that— 

7 (i) replaces one or more taxes that 

8 had been imposed on mobile services, mo9 bile service providers, or mobile service 

10 property; and 

11 (ii) is designed so that, based on in12 formation available at the time of the en13 actment of such new tax or such modifica14 tion, the amount of tax revenues generated 

15 thereby with respect to such mobile serv16 ices, mobile service providers, or mobile 

17 service property is reasonably expected to 

18 not exceed the amount of tax revenues that 

19 would have been generated by the respec20 tive replaced tax or taxes with respect to 

21 such mobile services, mobile service pro22 viders, or mobile service property. 

23 SEC. 4. ENFORCEMENT. 

24 Notwithstanding any provision of section 1341 of title 

25 28, United States Code, or the constitution or laws of any 


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

2 jurisdiction, without regard to amount in controversy or 

3 citizenship of the parties, to grant such mandatory or pro4 hibitive injunctive relief, interim equitable relief, and de5 claratory judgments as may be necessary to prevent, re6 strain, or terminate any acts in violation of this Act. 

7 (1) JURISDICTION.—Such jurisdiction shall not 

8 be exclusive of the jurisdiction which any Federal or 

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

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

11 in any proceeding brought under this Act shall be 

12 upon the party seeking relief and shall be by a pre13 ponderance of the evidence on all issues of fact. 

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

15 which is discriminatory or excessive under this Act 

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

17 shall prevent, restrain, or terminate the imposition, 

18 levy, or collection of not more than the discrimina19 tory or excessive portion of the tax as determined by 

20 the court. 

Æ 


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