Senate Bill S1594

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1594

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 10, 2011
                               ___________

Introduced  by  Sen. KRUEGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on  Energy  and  Telecommuni-
  cations

AN ACT to amend the public service law, in relation to wireless communi-
  cations  devices; and to amend the tax law, in relation to a surcharge
  on prepaid wireless communications service

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The public service law is amended by adding a new section
92-g to read as follows:
  S 92-G. AUTOMATIC LOCATION IDENTIFICATION AND ACCESS TO 911  EMERGENCY
SERVICES  FOR  WIRELESS  COMMUNICATIONS DEVICES.   ALL WIRELESS COMMUNI-
CATION DEVICES SOLD IN THIS STATE, INCLUDING BUT NOT LIMITED TO  DISPOS-
ABLE  AND  PREPAID  DEVICES, SHALL BE CAPABLE OF ACCESSING 911 EMERGENCY
SERVICES AND ENHANCED 911 SERVICES AS DEFINED IN SECTION  THREE  HUNDRED
ONE OF THE COUNTY LAW, WHERE AVAILABLE, AND SHALL BE CAPABLE OF AUTOMAT-
IC  LOCATION  IDENTIFICATION,  REGARDLESS  OF  WHETHER  THE CONSUMER HAS
ENTERED  INTO  OR  MAINTAINS  A  CONTRACT  FOR  WIRELESS  COMMUNICATIONS
SERVICES FOR SUCH DEVICE.
  S  2.  The tax law is amended by adding a new section 186-g to read as
follows:
  S 186-G. PREPAID WIRELESS COMMUNICATIONS SURCHARGE. 1.    DEFINITIONS.
(A)  "CONSUMER" MEANS A PERSON WHO PURCHASES A PREPAID WIRELESS TELECOM-
MUNICATIONS DEVICE OR SERVICE IN A RETAIL TRANSACTION.
  (B) "WIRELESS COMMUNICATIONS  DEVICE"  MEANS  ANY  EQUIPMENT  USED  TO
ACCESS A WIRELESS COMMUNICATIONS SERVICE.
  (C)  "PREPAID  WIRELESS  TELECOMMUNICATIONS  SERVICE" MEANS A WIRELESS
TELECOMMUNICATIONS SERVICE WHICH MUST BE PAID FOR IN ADVANCE AND IS SOLD
IN PREDETERMINED UNITS OR DOLLARS OF WHICH THE NUMBER DECLINES WITH  USE
IN A KNOWN AMOUNT, AND SHALL INCLUDE BUT NOT BE LIMITED TO PREPAID CALL-
ING  CARDS  AS DEFINED IN SECTION NINETY-TWO-F OF THE PUBLIC SERVICE LAW

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00791-01-1
              

S. 1594                             2

OR ANY OTHER CARD OR SIMILAR ITEM WHICH PERMITS  A  CONSUMER  ADDITIONAL
CALLING TIME ON A PREPAID WIRELESS COMMUNICATIONS DEVICE.
  2. (A) A SURCHARGE ON PREPAID WIRELESS COMMUNICATIONS SERVICE PROVIDED
TO  A  RETAIL  CUSTOMER  IS  IMPOSED AT THE RATE OF THREE PERCENT OF THE
PURCHASE PRICE OF EACH WIRELESS COMMUNICATIONS SERVICE. WIRELESS PREPAID
DEVICES AND EQUIPMENT SHALL BE EXCLUDED FROM SUCH SURCHARGE UNLESS  SUCH
DEVICES ARE BUNDLED WITH SERVICE MINUTES.
  (B)  EVERY  RETAILER  OF A WIRELESS COMMUNICATIONS SERVICE IN NEW YORK
STATE MUST ACT AS A COLLECTION AGENT FOR THE STATE FOR THE COLLECTION OF
THE SURCHARGE IMPOSED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. THE
SURCHARGE MUST BE REPORTED AND PAID TO THE COMMISSIONER ON  A  QUARTERLY
BASIS  ON  OR BEFORE THE FIFTEENTH DAY OF THE MONTH FOLLOWING EACH QUAR-
TERLY PERIOD ENDING ON THE LAST DAY OF FEBRUARY, MAY, AUGUST AND  NOVEM-
BER,  RESPECTIVELY.  THE PAYMENTS MUST BE ACCOMPANIED BY A RETURN IN THE
FORM AND CONTAINING THE INFORMATION THE COMMISSIONER MAY PRESCRIBE.
  (C) EACH RETAILER IS ENTITLED TO RETAIN, AS AN ADMINISTRATIVE FEE,  AN
AMOUNT EQUAL TO ONE AND ONE-HALF PERCENT OF THE TOTAL COLLECTIONS OF THE
SURCHARGE  IMPOSED BY THIS SECTION, PROVIDED THAT THE RETAILER FILES ANY
REQUIRED RETURN AND REMITS THE SURCHARGE DUE TO THE COMMISSIONER  ON  OR
BEFORE ITS DUE DATE.
  (D)  NOTWITHSTANDING  SECTION TWO HUNDRED SEVEN-B OF THIS ARTICLE, THE
SURCHARGE IMPOSED BY THIS SECTION SHALL BE SUBJECT TO THE ADMINISTRATIVE
PROVISIONS OF ARTICLE TWENTY-EIGHT OF THIS CHAPTER.  THE TERM "TAXPAYER"
IN ARTICLE TWENTY-EIGHT OF THIS CHAPTER REFERS TO A RETAILER OF  PREPAID
WIRELESS  COMMUNICATIONS  SERVICE  SUBJECT  TO THIS SECTION AND THE TERM
"TAX" IN ARTICLE TWENTY-EIGHT OF THIS CHAPTER REFERS  TO  THE  SURCHARGE
IMPOSED BY THIS SECTION.
  3. THE PREPAID WIRELESS COMMUNICATIONS SURCHARGE SHALL BE COLLECTED BY
THE  SELLER  FROM  THE  CONSUMER WITH RESPECT TO EACH RETAIL TRANSACTION
OCCURRING IN THIS STATE CONSISTENT WITH  ARTICLE  TWENTY-EIGHT  OF  THIS
CHAPTER.  THE  AMOUNT OF THE SURCHARGE 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. THE
AMOUNT OF THE SURCHARGE THAT IS COLLECTED BY A SELLER  FROM  A  CONSUMER
PURSUANT TO THIS SECTION, WHETHER OR NOT SUCH AMOUNT IS SEPARATELY STAT-
ED  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  AGEN-
CY.
  4.  DEPOSITS OF SURCHARGE MONIES COLLECTED AND RECEIVED. NOTWITHSTAND-
ING ANY PROVISION OF LAW TO THE CONTRARY, ALL SURCHARGE MONIES COLLECTED
AND RECEIVED BY THE COMMISSIONER UNDER THIS SECTION  MUST  BE  DEPOSITED
DAILY  TO  THE  CREDIT  OF THE COMPTROLLER WITH THOSE RESPONSIBLE BANKS,
BANKING HOUSES OR TRUST COMPANIES THE COMPTROLLER MAY  DESIGNATE.  THOSE
DEPOSITS  MUST  BE  KEPT SEPARATE AND APART FROM ALL OTHER MONIES IN THE
POSSESSION OF THE COMPTROLLER. THE  COMPTROLLER  MUST  REQUIRE  ADEQUATE
SECURITY  FROM  ALL SUCH DEPOSITORIES. OF THE TOTAL REVENUE COLLECTED OR
RECEIVED UNDER THIS SECTION, THE COMPTROLLER MUST RETAIN  IN  THE  COMP-
TROLLER'S HANDS AN AMOUNT DETERMINED BY THE COMMISSIONER TO BE NECESSARY
FOR  REFUNDS  UNDER  THIS SECTION, OUT OF WHICH THE COMPTROLLER WILL PAY
ANY REFUNDS TO WHICH TAXPAYERS ARE ENTITLED UNDER THE PROVISIONS OF THIS
SECTION. THE COMPTROLLER, AFTER RESERVING THE AMOUNT TO PAY REFUNDS, AND
AFTER DEDUCTING THE AMOUNT RETAINED BY WIRELESS COMMUNICATIONS RETAILERS
PURSUANT TO PARAGRAPH (C) OF SUBDIVISION TWO OF THIS SECTION,  MUST,  ON
OR  BEFORE  THE  TENTH  DAY  OF  EACH  MONTH,  PAY  ALL SURCHARGE MONIES

S. 1594                             3

COLLECTED AND RECEIVED UNDER THIS SECTION AND  REMAINING  INTO  THE  NEW
YORK STATE WIRELESS TELEPHONE EMERGENCY SERVICE ACCOUNT OF THE MISCELLA-
NEOUS  SPECIAL REVENUE FUND, CREATED PURSUANT TO SECTION NINETY-SEVEN-QQ
OF THE STATE FINANCE LAW.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law; provided that section two  of  this  act  shall  take
effect  on the first day of the second quarterly period, as described in
paragraph (b) of subdivision 2 of section 186-g of the tax law, as added
by section two of this act, next commencing after  this  act  becomes  a
law.