BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 1717 HEARING: 6/25/14
AUTHOR: Perea FISCAL: Yes
VERSION: 5/28/14 TAX LEVY: No
CONSULTANT: Grinnell
PREPAID MOBILE TELEPHONY SERVICES SURCHARGE ACT (URGENCY)
Enacts the Prepaid Mobile Telephony Services Surcharge
Collections Act.
Background and Existing Law
In recent years, few industries have undergone as much
change as telephony; wireless phones were the most quickly
adopted consumer technology in history, surpassing landline
use worldwide in 2002. Today, nearly 40% of American homes
rely solely on wireless telephones, and nearly one in six
received all or almost all phone calls on wireless
telephones. The traditional model for wireless phones is
for a customer to pay on a monthly billing cycle under a
one or two year contract; but a significant amount of
industry growth is coming from "pre-paid wireless," where
customers purchase credits for their accounts, and usage is
limited to the amount of purchased credits. Pre-paid
doesn't require a credit history of contract. While
post-paid is still the majority of the market in the United
States, pre-paid may overtake it soon, as it is already
more popular in the rest of the world. All major wireless
carriers now offer pre-paid plans, and revenue from
pre-paid plans are increasing as a share of their total.
Estimates show major carriers sell 30 to 40% of prepaid
plans, while non-carrier retailers from big box stores to
convenience marts sell the rest, usually in the form of
prepaid cards.
In California several taxes and fees apply to end-users of
telephones, which the consumer pays to the carrier as part
of their bill, who in turn remits them to the agency
imposing the fee or tax. The state can only impose fees
and taxes on calls that originate and terminate within the
state because federal law limits states from taxing
interstate commerce. The Federal Communications Commission
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allows carriers to estimate the share of intrastate calls
as a percentage of the total in three ways:
Books and records (actual call data),
Traffic studies,
A safe harbor of 63% for intrastate.
Current state fees and taxes on telecommunications include:
The 911 Surcharge, which funds the state's 911
emergency response system. The surcharge cannot be
greater than three-quarters of 1 percent nor less than
one-half of 1 percent of the amount charged for
monthly service. The State Board of Equalization
(BOE) administers the surcharge, and remits revenue to
the Office of Emergency Services.
California Public Utilities Commission (PUC) fees
and charges. CPUC can change the rates to ensure
stable fund balances based on forecast demand. Fees
include:
o Universal Lifeline Account: 1.15% of the
amount paid for monthly service, which subsidizes
landline services for low-income households,
o Deaf and Disabled Telecommunications
Program: 0.2% to aid deaf, hearing impaired, and
disabled persons to use telephones,
o High Cost Fund A: .4% to subsidize rural
telecommunications carriers,
o High Cost Fund B: currently 0, when in
effect it subsidizes carriers of last resort
providing residential telecommunications in high
cost areas,
o Teleconnect Fund: .59% to fund a 50%
discount on selected telecommunication services
to qualifying schools, libraries,
government-owned and operated hospitals and
health clinics, and community-based
organizations.
o Advance Services Fund: .44% to fund
broadband deployment unserved and underserved
areas.
Additionally, the CPUC imposes a user fee of .18% on
telecommunications carriers based on their intrastate
revenues. This fee funds CPUC operations.
Utility users taxes (UUTs) are excise taxes imposed on
consumers of utilities by cities and counties on the
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consumption of utility services, including electricity,
gas, water, sewer, telephone, sanitation, and cable
television. In jurisdictions that impose a UUT, a utility
company collects the tax through the bills it sends to
utility customers, and remits the revenues to the local
government that imposed the tax. Although a city or county
can impose a UUT as a special tax, generating revenues that
must be used for a specific purpose, nearly all UUTs are
imposed as general taxes, which allow revenues to be used
for any purpose. Additionally, some local agencies also
impose charges to fund local 911 systems, but accounts vary
regarding the current compliance for sales of prepaid
wireless.
Currently, wireless carriers remit revenues for the 911
surcharge on behalf of consumers to BOE, and CPUC fees to
CPUC. Wireless carriers instead want to shift the
collection responsibility for these end-user fees to
retailers, who would itemize the charges when collecting
them from consumers at the point-of-sale remit funds to
BOE, who deposits proceeds into the MTS surcharge fund, and
local proceeds into the Local Charges for Prepaid Mobile
Telephony Services Fund, after deducting its collections
costs.
Proposed Law
Assembly Bill 1717 enacts the Prepaid Mobile Telephony
Services Surcharge Collections Act, which requires
purchasers of prepaid wireless to pay a surcharge for each
retail sale (MTS Fee) on and after January 1, 2016. The
MTS Fee is a percentage of the sales price, and is in-lieu
of all other state and local charges, fees, and taxes that
currently apply. BOE administers the MTS Fee according to
the Fee Procedures Collections Law, and must calculate the
rate according to the bill each year no later than November
1, commencing on November 1, 2015 by adding:
The 911 Surcharge rate,
The CPUC reimbursement and cumulative universal
service fees,
The measure also requires the seller to also collect at the
point of sale from consumers of prepaid wireless an amount
equal to adding the following according to rate
AB 1717 - 5/28/14 -- Page 4
approximations in the bill:
Local UUTs, and
Charges for access to communications services or
local 911 emergency telephone systems.
I. MTS Fee. BOE must post the combined total of the MTS
fee, plus any UUTs or other local charges, on its website
by December 1st of each year. BOE must post a recalculated
rate if a local agency notifies BOE that the rate is
inaccurate or if the local agency no longer levies the UUT
or local charge, and the revised rate shall become
operative on the first day of the calendar quarter more
than 60 days from the notification.
Sellers of prepaid must remit the MTS fee, UUTs, and local
charges to BOE, less any federal or state universal
lifeline exemption or discount, and separately state the
MTS fee, UUT, and local 911 charges on the invoice or
receipt provided the purchaser. Sellers may retain 2% of
the total collected to compensate for the costs of
collection. Sellers must register with BOE, and the bill
provides that the MTS fee due and payable by sellers to BOE
quarterly on or before the last day of the next month
following each calendar quarter, and that the seller must
file returns with BOE electronically. Sellers are relieved
from liability when the MTS fee is imposed on accounts that
have been found worthless, and may claim a deduction on its
return in the future. The seller must repay any
subsequently collected amounts from worthless accounts.
Any taxes collected, but not remitted are considered a debt
to the state. The bill provides that a seller that
collects an amount that exceeds the MTS Fee, UUTs, and
local 911 charges may refund those amounts to the prepaid
consumer. AB 1717 provides that once a customer pays the
MTS fee, he or she is relieved of future liability.
The bill requires sellers to collect the fee at the
point-of-sale, but if it's not a retail transaction, they
can use the consumer's address to collect the MTS Fee and
local charges that corresponds to the prepaid consumer's
five digit postal ZIP Code. This measure discharges a
seller from any additional MTS Fee or local charges and
also relieves the seller from refunding amounts collected
and remitted to BOE if:
A seller relies in good faith on BOE-provided
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retail location information to match either a
point-of-sale transaction location, or the five digit
postal ZIP Code of the prepaid consumer's
known-address,
A seller collects that amount from the prepaid
consumers, and
A seller remits the amount to BOE in compliance
with the Act.
The bill discharges the seller from any additional local
charges, and relieves the seller from refunding amounts
collected and remitted if the seller with due diligence and
in good faith relies on credible information to match the
prepaid consumer's five digit postal ZIP code to the
correct local charge, even if the ZIP code corresponds to
more than one local charge in a known-address transaction.
The MTS Fee applies to the entire price where prepaid
mobile telephony services are sold in combination with
mobile data services or any other services or products for
a single price. The retailer can elect to apply the MTS
fee only to the amount charged for the prepaid service, and
not to the whole amount of the transaction when the
retailer sells the prepaid service with a cellular
telephone, and the purchase price for the prepaid service
is separately disclosed to the consumer on a receipt,
invoice, or other written electronic documentation. When
the retailer sells a prepaid service of less than ten
minutes, or costs less than $5 sold in a single,
non-itemized bundled price with a cellular telephone, the
seller may elect not to apply the MTS fee or local charge.
The bill allows an apportioned credit for when the customer
paid charges incorporated into the MTS fee to another
state, one of its political subdivisions, or the District
of Columbia.
BOE allocates its costs for collection on a pro rata basis
according to revenues collected for the 911 Fee, CPUC Fees,
and local charges. BOE can prescribe and adopt tax
administration and enforcement regulations, as well as any
necessary emergency regulations as necessary to implement
the bill. BOE must establish procedures for a seller to
document when a sale is not a retail transaction, and for
sharing specified MTS fee collection information upon the
request of the CPUC or OES.
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The bill creates the Prepaid Mobile Telephony Services
Fund, into which BOE must deposit revenues from the MTS
fee. The funds from the 911 component of the MTS fee are
deposited into the Prepaid 911 MTS account, created by the
bill, and funds for the CPUC fee component into the Prepaid
MTS PUC account, also created by the bill. However, the
bill requires that not less than $9.9 million annually be
paid to the Prepaid MTS 911 account, beginning in 2016. If
MTS revenues fall below $9.9 million, BOE must bill each
prepaid wireless service provider according to its pro rata
share of California intrastate revenue. CPUC fees have no
such guarantee.
II. Local Charges. Local agencies must contract with BOE
to collect its UUTs and local charges. In the contract,
the local agency must:
Certify to BOE that its UUT or local charge
ordinance applies to prepaid wireless services,
Agree to indemnify and hold harmless BOE's
collections under the contract,
Certify the amount of the local 911 charge, or the
UUT tiered rate.
The local agency must enter into a contract with BOE that
complies with the terms above for any new local charge that
applies to prepaid wireless by December 1 of each year, to
take effect by April 1. Local agencies must notify BOE of
any increase in its UUTs or local charges under the same
schedule, but can notify BOE of any reduction or
elimination by written notice, and the revised rate shall
become operative on the first day of the calendar quarter
more than 60 days from the notification.
The bill enacts the exclusive method for collecting UUTs,
local 911 charges, or any other charge on prepaid wireless,
as well as defining the scope of any tax or charge. The
measure suspends the authority of any local agency to
impose a UUT or local 911 charge at the rate specified in
the ordinance; instead the bill sets rates that approximate
UUT and local charge rates. Sellers of prepaid wireless
may elect to pay amounts based on the rates set by bill,
and are deemed in full compliance if they do so. The bill
states that its rate approximation is self-executing, and a
change in the rate resulting from a suspension or
termination of a UUT is not subject to voter approval.
Local agencies can increase UUT rates on prepaid wireless,
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but the bill's rate approximation sets the final rate.
The bill shifts collection responsibility for UUTs and
local charges from the local agency to BOE, which must
collect the fee according to the Fee Procedures Collections
Law. The bill creates Local Charges for Prepaid Mobile
Telephony Services Fund, into which BOE must deposit
revenues held in trust for the local agency, less BOE
administration costs. BOE must transmit funds as promptly
as feasible, but at least once per calendar quarter, and
provide a quarterly statement of its administration costs.
BOE may prescribe rules and regulations to implement the
local charge component of the bill; however, audits are
limited solely to verifying that the seller complied with
the bill. BOE may contract with a third party to allocate
and transmit local charges, audit sellers, and respond to
requests regarding collecting local charges within the
scope of BOE's responsibilities. The bill sets limitations
on contracts, including that they cannot provide for
contingency fee arrangements.
Local agencies must defend any claim regarding the validity
of their ordinances, interpreting the ordinance unless
superseded by the bill, respond to any claim for refund,
certify that its ordinance applies to prepaid wireless, and
reallocate local charges resulting from correcting errors
relating to the seller's or consumer's location. The bill
allows consumers to rebut presumed locations by filing a
claim and a declaration under penalty of perjury, and file
a claim for refund with the local agency based on the local
ordinance. The bill absolves sellers of liability or
granting refunds resulting from challenges regarding the
validity of the tax.
Local agencies must pay all of BOE's costs of administering
this part of the bill and collecting local charges. The
Director of Finance has final decision-making authority to
resolve disputes between BOE and local agencies over costs.
BOE must annually report on both its reimbursed and
unreimbursed costs for collecting local charges.
Duly appointed representatives of local agencies can
examine all of BOE's records for prepaid wireless
pertaining to that local agency, but not records of sales
or transactions for any taxpayer. The resolution
appointing the representative must contain specified items
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to allow non-employee contractors access to BOE records.
Information may only be used for collection purposes. The
measure makes unlawful any person obtaining access to the
information without complying with the bill.
III. Lifeline exemption. Consumers eligible for the state
or federal lifeline program are exempt from the MTS Fee if
the seller is authorized to provide lifeline service. The
exemption applies only to the amount paid for prepaid
service that the lifeline program specified is exempt from
the components of the MTS fee.
IV. CPUC Fees. AB 1717 directs CPUC to compute a
reimbursement fee as a percentage of the sales price of
prepaid mobile telephony services, commencing October 1,
2015, to be effective January 1, 2016. CPUC must compute
the fee each October 1st for the following calendar year.
CPUC must post a notice on its website; notify OES and BOE
of the amount of the fee and its computation method. The
bill directs the CPUC to calculate the cumulative amount of
telecommunications universal service charges, which include
all the fees above, using identical dates.
CPUC must adjust the reimbursement and cumulative fees any
past overcollection, and may for any undercollection, from
the previous year. CPUC may adjust how collections are
deposited into appropriate accounts in the event of
overcollection or undercollection. CPUC must prepare a
resolution or other similar document available to the
public and posted on its website explaining the adjustment
30 days before adopting any adjustment. The resolution or
document must include:
Prior year revenue from the fee or surcharge,
Projected expenses and revenues from all sources,
including prepaid,
Rationale for adjusting the reimbursement fee or
universal service surcharge,
CPUC can enforce compliance with the bill upon retailers
when the carrier is also the retailer, in collaboration
with BOE, but not if the retailer isn't the carrier.
Carriers selling prepaid services must remit the
reimbursement and cumulative universal fees to CPUC based
on the intrastate share of revenues through December 31,
2015, after which time they remit the charges to BOE as
part of the MTS Fee. The measure doesn't relieve carriers
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of the responsibility to report prepaid revenues to CPUC,
and requires carriers to report the intrastate portion
subject to the fees, as well as total state revenue.
V. 911 Fee. Assembly Bill 1717 requires OES to determine
the 911 fee for prepaid wireless according to the
intrastate portion of prepaid wireless based on the
information carriers send to the CPUC, commencing with the
calculation made on October 1, 2015, effective January 1,
2016. OES must inform BOE of the total amount collected,
including the amount from prepaid wireless. OES must
prepare a summary, and make it available to the public,
with the following information, including the amounts
attributable to prepaid wireless, 30 days before
determining overall 911 fee:
Prior year revenue,
Projected expenses and revenues from all sources,
including prepaid,
Rationale for adjustment.
VI. Other provisions. The measure defines several terms,
makes findings and declarations, including stating the
Legislature's intent to apply reimbursement and universal
service charges in a competitively neutral way between
prepaid and postpaid. The bill directs that no inference
be drawn from its enactment upon the remittance
requirements of prepaid wireless sellers. The bill also
states that it does not affect remittance requirements for
sellers for non-prepaid wireless items and services. The
bill also makes conforming changes.
State Revenue Impact
BOE's administrative cost estimate is pending; however, for
AB 300 (Perea, 2013), a substantially similar bill, BOE
estimates costs of around $13 million annually to implement
both the MTS fee and administer and collect local UUTs and
charges.
BOE assumes that wireless carriers are not currently
collecting or remitting UUTs, and estimates $73 million in
local revenue, and $55.9 million for AB 1717's MTS Fee.
BOE estimates the bill requires vendor compensation of
$783,000. BOE cautions that its estimate is predicated on
an 80% intrastate component, but CPUC actually determines
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the percentage ultimately used, which could be higher or
lower than 80%. BOE estimated $39.6 million for AB 300 last
year
Comments
1. Purpose of the bill . According to the author,
"According to the author, this bill would establish a
statewide system for point-of-sale collection of state and
local fees imposed on communications service that are
currently paid by end users of postpaid customers, thereby
ensuring that the prepaid wireless sector of the
communications market equitably shares in the
responsibility to fund the state 911 system, state
universal service programs, and CPUC operations paid with
the CPUC Reimbursement Fee, and also contribute to the
revenue of cities and counties generated by local fees and
UUTs."
2. Shifting risk . Sellers of prepaid wireless services
currently pay the fees and charges that AB 1717 would shift
to consumers when they buy prepaid services. Currently,
carriers pay these fees, and then seek to pass along these
costs to consumers, but usually sell these products in
nationwide markets. AB 1717 explicitly shifts this
responsibility to consumers of prepaid services by having
the seller with direct contact with consumer collect the
MTS fee, and compensates third-party retailers for their
costs. However, while carriers don't like paying the fees,
they're clearly capable, so why reassign this burden to
prepaid customers, who are often low-income? The Committee
may wish to consider the merits of explicitly reassigning
the burden of paying fees and charges from sophisticated
service providers to consumers.
3. Direct/Indirect . AB 1717 is a great experiment in
shifting the collection responsibility for end-user imposed
fees to retailers and BOE. While BOE has been successful
implementing several unconventional fee programs, such as
the tire fee and E-Waster fees, there's no guarantee that
the new mechanism will produce sufficient revenue to make
OES, CPUC, and local agencies whole based on the current
process. Instead of shifting the entire amount of risk, AB
1717 could instead only apply MTS fee collection to
so-called "indirect" retailers, who buy prepaid cards from
prepaid wireless service providers, and keep "direct"
sellers under the current construct. Because direct
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sellers complete the calls as wireless service providers,
they have data that shows the intrastate versus interstate
share. To the extent that the state is launching a risky
venture to transfer the collections responsibilities from
carriers to point-of-sale transactions, why should the bill
exclude a large segment of the market that knows how to
comply, and has the data in hand to determine the
intrastate share? The Committee may wish to consider
requiring current direct sellers to pay 911, CPUC, and
local fees, and limit the measure's MTS provisions to
indirect sellers.
4. Priorities . For AB 1717 to work, the new MTS fee must
be able to pay for previous amounts in taxes and fees
currently paid by carriers for prepaid wireless to the 911
fee and for CPUC programs, plus BOE's administration costs.
If the MTS fee doesn't meet expectations, something has to
give. The bill establishes that BOE must collect its costs
by deducting them from OES and CPUC fees, and recent
amendments provide a guarantee for the state's 911 system
by directing BOE to make up the difference by separately
billing all prepaid wireless providers. However, the bill
doesn't afford similar protection and billing authority if
CPUC fees aren't made whole, meaning that those accounts
bear the risk if AB 1717 falls short of its promises. Last
year, the Committee amended AB 300 to insert a three-year
sunset to ensure that the MTS fee wouldn't stay in place
forever if it doesn't work. The Committee may wish to
consider adding a sunset to AB 1717 to enable a future
Legislature to measure the bill's impacts.
5. How does this work ? Assuming an intrastate percentage
of 78.5%, if I buy $100 worth of prepaid services from a
third party retailer, the state taxes, fees and surcharges
imposed on my transaction would be:
911 surcharge (0.50%): First, multiply 0.50% by
78.5% making the 911 portion of the MTS surcharge rate
.3925%. Multiply the surcharge rate by the by the
sales price to equal $0.39 (.3925% x $100).
CPUC surcharges: the 6 cumulative CPUC surcharges
and user fee total 2.96%, or $2.96 on a $100 purchase.
Multiply that $2.96 by 78.5% to total $2.32.
In the City of Sacramento, the UUT rate as adjusted
by the bill is 2.5%. My total UUT would be $2.50 (100
x 2.5%), not subject to the intrastate percentage.
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On a $100 price of prepaid voice, talk and text, I would
pay $5.21 ($0.39 + $2.32 + $2.50 in state taxes and
surcharges. Additionally, the vendor is compensated $2
because I bought the service from a third-party retailer.
6. Local taxes . Most local agencies concede that prepaid
wireless isn't paying local UUTs, and BOE estimates that
the bill's explicit collections requirement could result in
up to $72 million in revenue as a result. Currently:
157 local agencies have UUT ordinances.
125 apply to wireless.
Approximately 75 of the 125 wireless UUT ordinances
are voter-approved. About a 5-10 of those 75
voter-approved ordinances use "older" definitions that
may or may not qualify under AB 300.
62 cities have a "technology neutral" definition of
wireless likely to comply with AB 300.
However, some local agencies may have to amend their
ordinances to be "technology neutral," or explicitly apply
to pre- and post-paid wireless. Proposition 218 (1996)
requires voter approval for an ordinance that enacts a new,
increased, or extended tax. While the measure increases
local collections for many local agencies, some may have to
go back to voters for approval before the bill provides
more revenue.
7. Vendor compensation . AB 1717 compensates indirect
vendors (retail locations not owned by a carrier) for
collecting the MTS Fee and local charges at point-of-sale
by allowing them to retain 2% of the MTS Fee for each sale.
State law allows vendor compensation only for the tire
fee, forest products fee, and E-Waste fees. Until
recently, there was no vendor compensation in the state
because the privilege of doing business in a state with
such a large population was compensation enough. The
Committee may wish to consider the policy of vendor
compensation, and the merits of extending it to the MTS
Fee.
8. Federal preemption ? The central policy question posed
by AB 1717 is who should bear the responsibility to collect
and remit appropriate taxes and fees for prepaid wireless
services that apply to all telecommunications. The 911 fee
is a consumer tax with no federal preemption or
interaction, but the CPUC argues that federal preempts its
AB 1717 - 5/28/14 -- Page 13
surcharges from being collected at the point-of-sale. The
PUC cites two legal arguments: first, federal statute
clearly says that it is the responsibility of the carriers
(not a third party retailer) to remit universal service
funds. Second, federal statute also says that regulations
adopted by states shall not be inconsistent with the FCC's
rules, which specify that carriers employ either safe
harbor, traffic study, or books and records methods to
calculate universal surcharge revenues owed.
9. Have we met before ? Last year, the Governor vetoed AB
300 (Perea), substantially similar to this bill. AB 1717
doesn't have AB 300's three-year sunset, and contains a
guarantee for the 911 fund compared to AB 300's "overlay."
Additionally, AB 1717 directs BOE to bill OES, CPUC, and
local agencies a pro-rata share of its costs. When vetoing
the measure, the Governor stated:
To the Members of the California State Assembly:
I am returning Assembly Bill 300 without my signature.
This bill would establish an additional system for
collecting and remitting fees, surcharges and taxes
applicable to prepaid mobile services. These charges
would be collected from prepaid customers and remitted
to the Board of Equalization, while fees collected
from postpaid customers would continue to be remitted
directly to the Public Utilities Commission, State 911
Fund and local governments.
There is no question that the state needs an effective
system for capturing local taxes related to the sale
of prepaid phones. The solution, however, proposed by
this bill is duplicative, complex and will result in
significant and unnecessary costs to the state.
I encourage the author to partner with the local
governments and State Agencies affected by these
revenues and craft a bill with a more cost effective
solution.
Sincerely,
Edmund G. Brown Jr
AB 1717 - 5/28/14 -- Page 14
10. Troubles . AB 1717 guarantees funding for the state's
911 fee, but the system itself needs much more money to
deliver on its promises, as revenue languishes and service
demands change. Almost 75% of emergency calls are made
from a cellular device, but the current 911 system is not
equipped to receive texts, data, photos, or videos.
However, the current 911 program is in a structural
deficit, with revenue declining from $133 million in
2005-2006 to a projected $78 million in 2013-2014.
According to The California Chapter of the National
Emergency Number Association, even at the maximum surcharge
level, "there is doubt that OES will be able to fund the
current 911 operation for more than a few years."
Additional funding is necessary to transition California's
current 911 system to the Next Generation 911 system.
While AB 1717 fixes collections difficulties for carriers,
it doesn't account for this fundamental problem facing the
state.
11. Amendments . When the Committee on Energy, Utilities,
and Communications approved AB 1717 on June 17th, they did
so with the understanding that amendments would be taken in
this Committee to:
Establish a process to bill prepaid wireless
service providers directly if MTS fee revenues don't
meet the 911 fund's fee target of $9.9 million, and
Apply transparency and accountability provisions of
SB 1211 (Padilla) into AB 1717.
Assembly Actions
Assembly Floor 71-2
Assembly Appropriations 15-0
Assembly Revenue and Taxation 9-0
Assembly Utilities and Commerce 9-0
Support and Opposition (06/19/14)
Support : California Professional Firefighters; City of
Burbank; City of Glendale; City of Sacramento; City of San
Gabriel; City of Santa Barbara; CTIA-The Wireless
Association; Muni Services, LLC; Sprint; T-Mobile.
Opposition : None received.
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