GA Code § 46-5-134.2 (2021)
2021 Georgia Code|Title 46 - Public Utilities and Public Transportation|Chapter 5 - Telephone Service|Article 2 - Telephone Service|Part 4 - Emergency Telephone Number 9-1-1 System|§ 46-5-134.2. Prepaid Wireless 9-1-1 Charge; Definitions; Imposition of Fee by Localities; Collection and Remission of Charges; Distribution of Funds

  As used in this Code section, the term:   "Commissioner" means the state revenue commissioner.   "Consumer" means a person who purchases prepaid wireless service in a retail transaction.   "Department" means the Department of Revenue.   "Prepaid wireless 9-1-1 charge" means the charge that is required to be collected by a seller from a consumer in the amount established under subsection (b) of this Code section.   Reserved.   "Provider" means a person that provides prepaid wireless service pursuant to a license issued by the Federal Communications Commission.   "Retail transaction" means the purchase of prepaid wireless service from a seller for any purpose other than resale.   "Seller" means a person who sells prepaid wireless service to another person.   "Wireless telecommunications service" means commercial mobile radio service as defined by 47 C.F.R. Section 20.3, as amended.       Counties and municipalities that operate a 9-1-1 public safety answering point, including counties and municipalities that operate multijurisdictional or regional 9-1-1 systems or have created a joint authority pursuant to Code Section 46-5-138, are authorized to impose by ordinance or resolution a prepaid wireless 9-1-1 charge in the amount of $1.50 per retail transaction. Imposition of the charge authorized by this Code section by a county or municipality shall be contingent upon compliance with the requirements of paragraph (1) of subsection (j) of this Code section.   Where a county or municipality that operates a 9-1-1 public safety answering point fails to comply with the requirements of paragraph (1) of subsection (j) of this Code section by December 31, 2011, on and after that date, the prepaid wireless 9-1-1 charge authorized by paragraph (1) of this subsection shall be imposed within the jurisdiction of such counties and municipalities as a state fee for state purposes.     Where a county or municipality imposes a prepaid wireless 9-1-1 charge as authorized by paragraph (1) of subsection (b) of this Code section, or the prepaid wireless 9-1-1 charge is imposed by the State of Georgia by paragraph (2) of subsection (b) of this Code section, the prepaid wireless 9-1-1 charge shall be collected by the seller from the consumer with respect to each retail transaction occurring in this state. The amount of the prepaid wireless 9-1-1 charge shall be either separately stated on an invoice, receipt, or other similar document that is provided to the consumer by the seller or otherwise disclosed to the consumer.   For the purposes of subsection (c) of this Code section, a retail transaction that is effected in person by a consumer at a business location of the seller shall be treated as occurring in this state if that business location is in this state, and any other retail transaction shall be treated as occurring in this state if the retail transaction is treated as occurring in this state for purposes of a prepaid wireless calling service as provided in paragraph (3) of subsection (e) of Code Section 48-8-77.   The prepaid wireless 9-1-1 charge shall be the liability of the consumer and not of the seller or of any provider, except that the seller shall be liable to remit all prepaid wireless 9-1-1 charges that the seller collects from consumers as provided in this Code section, including all such charges that the seller is deemed to collect where the amount of the charge has not been separately stated on an invoice, receipt, or other similar document provided to the consumer by the seller.   The amount of the prepaid wireless 9-1-1 charge that is collected by a seller from a consumer, if such amount is separately stated on an invoice, receipt, or other similar document provided to the consumer by the seller, shall not be included in the base for measuring any tax, fee, surcharge, or other charge that is imposed by this state, any political subdivision of this state, or any intergovernmental agency.     If a minimal amount of prepaid wireless service is sold with a prepaid wireless device for a single, nonitemized price, then the seller may elect not to apply the amount specified in subsection (b) of this Code section to such transaction.   If a minimal amount of prepaid wireless service is separately priced and sold as part of a single retail transaction that does not contain a prepaid wireless device or another prepaid wireless service, then the seller may elect not to apply the amount specified in subsection (b) of this Code section to such transaction.   For purposes of this subsection, the term "minimal" means an amount of service denominated as ten minutes or less or $5.00 or less.     Prepaid wireless 9-1-1 charges collected by sellers shall be remitted to the commissioner at the times and in the manner provided by Chapter 8 of Title 48 with respect to the sales and use tax imposed on prepaid wireless calling service. The commissioner shall establish registration and payment procedures that substantially coincide with the registration and payment procedures that apply to the sale of prepaid wireless calling service under Chapter 8 of Title 48. Audit and appeal procedures applicable under Chapter 8 of Title 48 shall apply to the prepaid wireless 9-1-1 charge. The commissioner shall establish procedures by which a seller of prepaid wireless service may document that a sale is not a retail transaction, which procedures shall substantially coincide with the procedures for documenting sale for resale transactions under Chapter 8 of Title 48. Nothing in this Code section shall authorize the commissioner to require that sellers of prepaid wireless services identify, report, or specify the jurisdiction within which the retail sale of such services occurred.   A seller shall be permitted to deduct and retain 3 percent of prepaid wireless 9-1-1 charges that are collected by the seller from consumers.   Prepaid wireless 9-1-1 charges remitted to the commissioner as provided in this Code section shall be distributed to counties, municipalities, and the State of Georgia as follows:   On or before December 31 of the year prior to the first year that the prepaid wireless 9-1-1 charge is imposed, each county and municipal corporation levying the prepaid wireless 9-1-1 charge, including counties and municipalities levying the prepaid wireless 9-1-1 charge that operate multijurisdictional or regional 9-1-1 systems or have created a joint authority pursuant to Code Section 46-5-138, shall file with the commissioner a certified copy of the pertinent parts of all ordinances and resolutions and amendments thereto which levy the prepaid wireless 9-1-1 charge authorized by this Code section. The ordinance or resolution specified herein shall specify an effective date of January 1, 2012, and impose a prepaid wireless 9-1-1 charge in the amount specified in paragraph (1) of subsection (b) of this Code section. The filing required by this paragraph shall be a condition of the collection of the prepaid wireless 9-1-1 charge within any county or municipality;     Each county or municipality operating a public safety answering point that has levied the prepaid wireless 9-1-1 charge authorized by this Code section and complied with the filing requirement of paragraph (1) of this subsection shall receive an amount calculated by multiplying the total amount remitted to the commissioner monthly times a fraction, the numerator of which is the population of the jurisdiction or jurisdictions operating the public safety answering point and the denominator of which is the total population of this state. An amount calculated by multiplying the total amount remitted to the commissioner monthly times a fraction, the numerator of which is the total population of any jurisdiction or jurisdictions operating public safety answering points that have not complied with the filing requirement of paragraph (1) of this subsection and the denominator of which is the total population of this state, shall be deposited as provided in paragraph (4) of this subsection.   Notwithstanding the provisions of subparagraph (A) of this paragraph, the initial monthly distribution shall be calculated using the total amount remitted to the commissioner beginning January 1, 2019, and ending January 31, 2019.   For the purposes of this paragraph, population shall be measured by the United States decennial census of 2010 or any future such census plus any corrections or revisions contained in official statements by the United States Bureau of the Census made prior to the first day of September immediately preceding the distribution of the proceeds of such charges by the commissioner and any official census data received by the commissioner from the United States Bureau of the Census or its successor agency pertaining to any newly incorporated municipality. Such corrections, revisions, or additional data shall be certified to the commissioner by the Office of Planning and Budget on or before August 31 of each year;     Funds shall be distributed monthly not later than 30 days following the date charges must be remitted by the seller to the department. Such distribution shall include any delinquent charges actually collected by the commissioner for a previous fiscal year which have not been previously distributed;   Funds distributed to a county or municipality pursuant to this Code section shall be deposited and accounted for in a separate restricted revenue fund known as the Emergency Telephone System Fund, maintained by the local government pursuant to paragraph (2) of subsection (d) of Code Section 46-5-134. The commissioner shall deposit all funds received pursuant to paragraph (2) of subsection (b) of this Code section into the general fund of the state treasury in compliance with Article 4 of Chapter 12 of Title 45, the "Budget Act." It is the intention of the General Assembly, subject to the appropriation process, that an amount equal to the amount deposited into the general fund of the state treasury as provided in this paragraph be appropriated each year to a program of state grants to counties and municipalities administered by the department for the purpose of supporting the operations of public safety answering points in the improvement of 9-1-1 service delivery. The department shall promulgate rules and regulations for the administration of the 9-1-1 grant program; and   Notwithstanding a county's or municipality's failure to comply with the filing requirement of paragraph (1) of this subsection prior to January 1, 2012, a county or municipality that subsequently meets such filing requirements prior to January 1 of any subsequent year shall become eligible to participate in the next succeeding distribution of proceeds pursuant to subparagraph (A) of paragraph (2) of this subsection.       No provider or seller of prepaid wireless service shall be liable for damages to any person resulting from or incurred in connection with the provision of, or failure to provide, 9-1-1 or enhanced 9-1-1 service, or for identifying, or failing to identify, the telephone number, address, location, or name associated with any person or device that is accessing or attempting to access 9-1-1 or enhanced 9-1-1 service.   No provider or seller of prepaid wireless service shall be liable for damages to any person resulting from or incurred in connection with the provision of any lawful assistance to any investigative or law enforcement officer of the United States, this or any other state, or any political subdivision of this or any other state in connection with any lawful investigation or other law enforcement activity by such law enforcement officer.   In addition to the liability provisions of paragraphs (1) and (2) of this subsection, the provisions of Code Section 46-5-135 shall apply to sellers and providers of prepaid wireless service.     The prepaid wireless 9-1-1 charge authorized by this Code section shall be the only 9-1-1 funding obligation imposed with respect to prepaid wireless service in this state, and no tax, fee, surcharge, or other charge shall be imposed by this state, any political subdivision of this state, or any intergovernmental agency for 9-1-1 funding purposes upon any provider, seller, or consumer with respect to the sale, purchase, use, or provision of prepaid wireless service.     (Code 1981, §46-5-134.2, enacted by Ga. L. 2011, p. 393, § 3/HB 256; Ga. L. 2011, p. 563, § 3/SB 156; Ga. L. 2012, p. 775, § 46/HB 942; Ga. L. 2012, p. 820, § 4/HB 1049; Ga. L. 2018, p. 689, § 2-14/HB 751.)   Editor's notes.   - Ga. L. 2011, p. 393, § 4 and Ga. L. 2011, p. 563, § 4, not codified by the General Assembly, provide, in part, that those Acts shall become effective for local administrative purposes on May 12, 2011, and shall become effective for all purposes on January 1, 2012. The Acts further provide that in no event shall a prepaid wireless 9-1-1 fee and charge be imposed prior to January 1, 2012.    Ga. L. 2011, p. 393, § 2, and Ga. L. 2011, p. 563, § 2, both repealed former Code Section46-5-134.2, relating to9-1-1 charges for prepaid wireless services, and enacted identical versions of the present Code section. The former Code section was based on Code 1981, § 46-5-134.2, enacted by Ga. L. 2007, p. 318, § 2/HB 394.   Ga. L. 2018, p. 689, § 4-1(b)/HB 751, not codified by the General Assembly, provides that: "The provisions of this Act shall not in any manner diminish, extinguish, reduce, or affect any cause of action for audits, services, or the recovery of funds from service providers which may have existed prior to January 1, 2019. Any such cause of action is expressly preserved."   JUDICIAL DECISIONS   Counties did not have legislative authority to collect 911 tax.    - Charge imposed under the Georgia Emergency Telephone 911 Service Act, O.C.G.A. § 46-5-120 et seq., was a tax as a matter of law, and counties did not have the required legislative authority under Ga. Const. 1983, Art. VII, Sec. I, Par. III(a), to sue telephone companies to recover charges not collected from subscribers; neither the Act nor the tort statutes, O.C.G.A. §§ 51-1-6,51-1-8, provided such authority. Bellsouth Telecoms., LLC v. Cobb County, 305 Ga. 144, 824 S.E.2d 233 (2019).