II 

111TH CONGRESS 

1ST SESSION S. 1192 

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

tax on mobile wireless communications services, providers, or property. 

IN THE SENATE OF THE UNITED STATES 

JUNE 4, 2009 

Mr. WYDEN (for himself, Ms. SNOWE, Mrs. MURRAY, Mr. MENENDEZ, Mrs. 

GILLIBRAND, Mr. ENSIGN, and Mr. MCCAIN) 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 mobile wireless communications 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 ‘‘Mobile Wireless Tax 

5 Fairness Act of 2009’’. 

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 the 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 the 

8 enactment of this Act, or any other service that is 

9 primarily intended for receipt on, transmission from, 

10 or use with a mobile telecommunications device, in11 cluding the receipt of a digital good. 

12 (2) MOBILE SERVICE PROPERTY.—The term 

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

14 by a mobile service provider in connection with its 

15 business of providing mobile services, whether real, 

16 personal, tangible, or intangible and includes good17 will, licenses, customer lists, and other similar intan18 gible property associated with such business. 

19 (3) MOBILE SERVICE PROVIDER.—The term 

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

21 or provides mobile services, but only with respect to 

22 the portion of such entity’s trade or business that 

23 sells or provides such services. 


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1 (4) NEW DISCRIMINATORY TAX.—The term 

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

3 a State or local jurisdiction that— 

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

5 measured by the charges, receipts, or revenues 

6 from or value of— 

7 (i) any mobile service and is not gen8 erally imposed, or is generally imposed at 

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

10 measured by the charges, receipts, or reve11 nues from, other services or transactions 

12 involving tangible personal property; 

13 (ii) any mobile service provider and is 

14 not generally imposed, or is generally im15 posed at a lower rate, on other persons 

16 that are engaged in businesses other than 

17 the provision of mobile services; or 

18 (iii) any mobile service property and is 

19 not generally imposed, or is generally im20 posed at a lower rate, on or with respect 

21 to, or measured by the value of, other 

22 property that is devoted to a commercial or 

23 industrial use and subject to a property 

24 tax levy, except public utility property 

25 owned by a public utility subject to rate of 


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1 return regulation by a State or Federal 

2 regulatory authority; and 

3 (B) was not generally imposed and actually 

4 enforced on mobile services, mobile service pro5 viders, or mobile service property prior to the 

6 date of the enactment of this Act. 

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

8 ‘‘State or local jurisdiction’’ means any of the sev9 eral States, the District of Columbia, any territory 

10 or possession of the United States, a political sub11 division of any State, territory, or possession, or any 

12 governmental entity or person acting on behalf of 

13 such State, territory, possession, or subdivision and 

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

15 taxes or fees. 

16 (6) TAX.— 

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

18 any charge imposed by any governmental entity 

19 for the purpose of generating revenues for gov20 ernmental purposes, and is not a fee imposed 

21 on an individual entity or class of entities for 

22 a specific privilege, service, or benefit conferred 

23 exclusively on such entity or class of entities. 

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

25 not include any fee or charge— 


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1 (i) used to preserve and advance Fed2 eral universal service or similar State pro3 grams authorized by section 254 of the 

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

5 254); or 

6 (ii) specifically dedicated by a State or 

7 local jurisdiction for the support of E–911 

8 communications systems. 

9 (c) RULES OF CONSTRUCTION.— 

10 (1) DETERMINATION.—For purposes of sub11 section (b)(4), all taxes, tax rates, exemptions, de12 ductions, credits, incentives, exclusions, and other 

13 similar factors shall be taken into account in deter14 mining whether a tax is a new discriminatory tax. 

15 (2) APPLICATION OF PRINCIPLES.—Except as 

16 otherwise provided in this Act, in determining 

17 whether a tax on mobile service property is a new 

18 discriminatory tax for purposes of subsection 

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

20 section 306 of the Railroad Revitalization and Regu21 latory Reform Act of 1976 (49 U.S.C. 11501) shall 

22 apply. 

23 (3) EXCLUSIONS.—Notwithstanding any other 

24 provision of this Act— 


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

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

3 imposed only on— 

4 (i) specific services; 

5 (ii) specific industries or business seg6 ments; or 

7 (iii) specific types of property; and 

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

9 shall not include a new tax or the modification 

10 of an existing tax that— 

11 (i) replaces one or more taxes that 

12 had been imposed on mobile services, mo13 bile service providers, or mobile service 

14 property; and 

15 (ii) is designed so that, based on in16 formation available at the time of the en17 actment of such new tax or such modifica18 tion, the amount of tax revenues generated 

19 thereby with respect to such mobile serv20 ices, mobile service providers, or mobile 

21 service property is reasonably expected not 

22 to exceed the amount of tax revenues that 

23 would have been generated by the respec24 tive replaced tax or taxes with respect to 


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1 such mobile services, mobile service pro2 viders, or mobile service property. 

3 SEC. 4. ENFORCEMENT. 

4 (a) IN GENERAL.—Notwithstanding any provision of 

5 section 1341 of title 28, United States Code, or the con6 stitution or laws of any State, the district courts of the 

7 United States shall have jurisdiction, without regard to 

8 amount in controversy or citizenship of the parties, to 

9 grant such mandatory or prohibitive injunctive relief, in10 terim equitable relief, and declaratory judgments as may 

11 be necessary to prevent, restrain, or terminate any acts 

12 in violation of this Act, provided that: 

13 (1) JURISDICTION.—Such jurisdiction shall not 

14 be exclusive of the jurisdiction which any Federal or 

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

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

17 in any proceeding brought under this Act shall be 

18 upon the party seeking relief and shall be by a pre19 ponderance of the evidence on all issues of fact. 

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

21 which is discriminatory or excessive under this Act 

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

23 shall prevent, restrain, or terminate the imposition, 

24 levy, or collection of not more than the discriminaVerDate Nov 24 2008 04:12 Jun 05, 2009 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1192.IS S1192

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1 tory or excessive portion of the tax as determined by 

2 the court. 

Æ 


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