2012 Pennsylvania Consolidated Statutes
Title 35 - HEALTH AND SAFETY
Chapter 53 - Emergency Telephone Service
Section 5311.4 - Wireless E-911 Emergency Services Fund

§ 5311.4.  Wireless E-911 Emergency Services Fund.

(a)  Establishment of fund.--There is established in the State Treasury a nonlapsing restricted interest-bearing account to be known as the Wireless E-911 Emergency Services Fund. The fund shall consist of the fees collected under subsections (b) and (b.1), funds appropriated by the General Assembly and funds from another source, private or public. Money in the fund and the interest it accrues is appropriated to the Pennsylvania Emergency Management Agency to be disbursed by the agency. The money in the fund shall be used only for the following costs:

(1)  PSAP and wireless provider costs resulting from compliance with the FCC E-911 Order, including development, implementation and testing, operation and maintenance of a Statewide integrated wireless E-911 system. Costs paid from the fund must be eligible recurring or nonrecurring costs as determined by the agency in accordance with sections 5311.2(a) (relating to powers and duties of agency) and 5311.5 (relating to disbursement of fund amounts by agency) for wireless E-911 service provided in accordance with the FCC E-911 Order or a county plan or amended county plan approved by the agency.

(2)  The agency-approved costs of PSAPs specified in section 5308(b) (relating to expenditures for nonrecurring costs, training, mobile communications equipment, maintenance and operation of 911 systems) that relate directly or indirectly to the provision of wireless E-911 service, to the extent:

(i)  the costs are not included in the costs paid under paragraph (1) and the approved E-911 costs provided in paragraph (1) have been reimbursed; and

(ii)  the costs do not exceed the percentage of the actual ratio of demonstrated wireless calls to demonstrated total emergency call volume times the amount of money in the fund, and further:

(A)  The amount of the costs that may be reimbursed is limited to 25% of the fund if a majority of wireless providers serving the geographic area covered by the PSAP have been tested and accepted by the PSAP for wireless E-911 Phase I service.

(B)  The amount of the costs that may be reimbursed is limited to 50% of the fund if all of the wireless providers serving the geographic area covered by the PSAP have been tested and accepted by the PSAP for wireless E-911 Phase I service.

(C)  The amount of the costs that may be reimbursed is limited to 75% of the fund if a majority of wireless providers serving the geographic area covered by the PSAP have been tested and accepted by the PSAP for wireless E-911 Phase II service.

(D)  The amount of the costs that may be reimbursed is limited to 100% of the fund if all of the wireless providers serving the geographic area covered by the PSAP have been tested and accepted by the PSAP for wireless E-911 Phase II service.

(iii)  If, under an FCC E-911 waiver, a wireless provider is temporarily relieved of its obligation to provide wireless E-911 Phase II service in the geographic area covered by a requesting PSAP, the wireless carrier shall be disregarded in the determinations to be made under subparagraphs (i) and (ii) until the wireless carrier's obligation to provide wireless E-911 Phase II service again becomes effective.

(b)  Wireless E-911 surcharge.--Each wireless service customer shall pay a fee, to be known as a wireless E-911 surcharge, in an amount of $1 per month for each device that provides wireless service for which that customer is billed by a wireless provider for wireless service. The fee shall be collected apart from and in addition to a fee levied by the wireless provider in whole or in part for the provision of 911 services.

(1)  Wireless providers shall collect the fee on behalf of the agency as part of their billing process and shall have no obligation to take any legal action to enforce the collection of the surcharge. Action may be brought by or on behalf of the agency. Upon written request of the agency, each wireless provider shall annually provide a list of the names and addresses of those wireless service customers carrying a balance that have failed to pay the wireless E-911 surcharge. The wireless provider shall not be liable for the unpaid amounts.

(2)  If a wireless provider receives a partial payment for a monthly bill from a wireless service customer, the wireless provider shall apply the payment against the amount the wireless service customer owes the wireless provider first and shall remit to the State Treasurer the lesser amount, if any, resulting from the application.

(3)  The fees collected under this subsection shall not be subject to taxes or charges levied by the Commonwealth or a political subdivision of this Commonwealth, nor shall the fees be considered revenue of the wireless provider for any purpose.

(4)  The provisions of this subsection shall not apply to sellers, providers or consumers of prepaid wireless telecommunications service.

(b.1)  Prepaid wireless E-911 surcharge.--

(1)  There is imposed a prepaid wireless E-911 surcharge of $1 per retail transaction or the adjusted surcharge, if any, established under paragraph (5). The $1 surcharge shall be applied to the cost of each retail transaction regardless of whether the service or prepaid wireless device was purchased in person, by telephone, through the Internet or by any other method.

(2)  A prepaid wireless E-911 surcharge shall be collected by the seller from the consumer for each retail transaction occurring in this Commonwealth. The amount of the prepaid wireless E-911 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. 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 Commonwealth if that business location is in this Commonwealth, and any other retail transaction shall be treated as occurring in this Commonwealth if the retail transaction is treated as occurring in this Commonwealth for the purposes of section 202(e.1) of the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971.

(3)  A prepaid wireless E-911 surcharge is a liability of the consumer and not of the seller or any provider, except that the seller shall be liable to remit the prepaid wireless E-911 surcharges that the seller collects from consumers as provided under paragraph (6), including the charges that the seller is deemed to collect if the amount of the surcharge has not been separately stated in an invoice, receipt or other similar document provided to the consumer by the seller.

(4)  The amount of the prepaid wireless E-911 surcharge that is collected by a seller from a consumer, whether or not the amount is separately stated on an invoice, receipt or similar document provided to the consumer by the seller, shall not be included in the base for measuring a tax, fee, surcharge or other charge that is imposed by the Commonwealth, a political subdivision or an intergovernmental agency.

(5)  The prepaid wireless E-911 surcharge shall be proportionately increased or reduced, as applicable, upon any change to the wireless E-911 surcharge imposed under subsection (b). The increase or reduction shall be effective on the effective date of the change to the surcharge imposed under subsection (b) or, if later, the first day of the first calendar month to occur at least 60 days after the effective date of the change to the surcharge imposed under subsection (b). The Department of Revenue shall provide not less than 30 days' notice of an increase or reduction on its public Internet website.

(6)  Prepaid wireless E-911 surcharges collected by a seller shall be remitted to the Department of Revenue at the times provided under Article II of the Tax Reform Code of 1971. The department shall establish payment procedures that substantially coincide with the payment procedures of Article II of the Tax Reform Code of 1971, except the department may require the filing of returns and the payment of the surcharge by electronic means.

(7)  During the first 180 days after the effective date of this section, a seller may deduct and retain 35% of the prepaid wireless surcharges collected by the seller from consumers for direct start-up costs. After the implementation period, a seller may deduct and retain up to 3% of prepaid wireless E-911 surcharges that are collected by the seller from consumers for administrative purposes.

(8)  The assessment, audit, appeal, collection and enforcement procedures and other pertinent provisions applicable to the sales and use tax imposed under Article II of the Tax Reform Code of 1971 shall apply to prepaid wireless E-911 surcharges.

(9)  The department shall establish procedures by which a seller of prepaid wireless telecommunications 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 for sales and use tax purposes under Article II of the Tax Reform Code of 1971.

(10)  The department shall pay all remitted prepaid wireless E-911 surcharges to the State Treasurer for deposit into the fund within 30 days of receipt, for use as provided in this chapter. The department may retain up to 2% of remitted surcharges to pay for department expenses directly related to the costs of administering the collection and remittance of prepaid wireless E-911 surcharges.

(11)  The provisions of section 5311.9 (relating to immunity) shall apply to providers and sellers of prepaid wireless telecommunications service.

(12)  The prepaid wireless E-911 surcharge shall be the only E-911 funding obligation imposed regarding prepaid wireless telecommunications service in this Commonwealth. No tax, fee, surcharge or other charge may be imposed by the Commonwealth, a political subdivision or an intergovernmental agency for E-911 funding purposes, on a provider, seller or consumer with respect to the sale, purchase, use or provision of prepaid wireless telecommunications service.

(c)  Remittance of fees.--On a quarterly basis, each wireless provider shall remit the fees collected under subsection (b) to the State Treasurer for deposit into the fund.

(d)  Reimbursement of wireless provider and PSAP costs.--

(1)  From every remittance, the wireless provider shall be entitled to deduct and retain an amount not to exceed 2% of the gross receipts collected as reimbursement for the administrative costs incurred by the wireless provider to bill, collect and remit the surcharge.

(2)  Wireless providers and PSAPs shall be entitled to payment from the fund in the manner provided in section 5311.5(c) for the following costs:

(i)  recurring costs approved by the agency under agency rules associated with the development, implementation, operation and maintenance of wireless E-911 service in the geographic area served by the requesting PSAP; and

(ii)  nonrecurring costs approved by the agency under agency rules associated with the development, implementation, operation and maintenance of wireless E-911 service in the geographic area served by the requesting PSAP.

(3)  In no event shall costs be paid that are not related to a wireless provider's or PSAP's compliance with requirements established by the wireless E-911 State plan, the FCC E-911 Order or the wireless E-911 provisions of an agency-approved county plan or amended county plan.

(4)  Costs incurred by a PSAP or wireless provider for wireless E-911 service shall be paid by the agency provided that the costs comply with the requirements of this section and section 5311.5, were incurred after January 1, 1998, and are determined by the agency, after application in accordance with section 5311.5(c), to be eligible for payment from the fund. Costs that the agency determines to be eligible shall be paid as provided in section 5311.5.

(5)  Nothing in this chapter shall prevent a wireless provider from recovering its costs of implementing and maintaining wireless E-911 service directly from its customers, whether itemized on the customer's bill or by any other lawful method. No wireless provider that levies a separate fee for provision of E-911 wireless service in the geographic area served by the requesting PSAP may receive a reimbursement for the same costs.

(e)  Reporting by wireless providers.--With each remittance a wireless provider shall supply the following information to the State Treasurer and to the agency:

(1)  The total fees collected through the wireless E-911 surcharge from its wireless service customers during the reporting period.

(2)  The total amount retained by it as reimbursement for administrative costs to cover its expenses of billing, collecting and remitting the fees collected from the wireless E-911 surcharge during the reporting period.

(3)  Until the nonrecurring costs have been recovered by a wireless provider, the total amount it has been reimbursed by the agency for nonrecurring costs associated with the development, implementation, operation and maintenance of wireless E-911 service during the reporting period.

(f)  Information to be supplied by wireless providers.--Wireless providers shall provide the agency with the information it shall request in writing in order to discharge its obligations under this section, including the collection and deposit of the wireless E-911 surcharge and its administration of the fund. Information supplied by wireless providers under this section shall remain confidential, and release of the information shall be governed by section 5311.7 (relating to public disclosure and confidentiality of information).

(g)  Prohibition.--No part of the fund, including an excess amount under section 5311.6(a) (relating to reporting), shall be used for any purpose unless expressly authorized by this chapter.

(h)  Surcharge sunset.--The wireless E-911 surcharge fee established in subsections (b) and (b.1) shall terminate on June 30, 2014, unless extended by an act of the General Assembly.

Effective Date.  Section 8(2) of Act 118 of 2010 provided that subsec. (b.1)(1), (2), (3), (4), (5), (6), (7), (8), (10) and (12) shall take effect July 1, 2011.

Special Provisions in Appendix.  See section 7(b)(3) of Act 118 of 2010 in the appendix to this title for special provisions relating to continuation of prior law.

Cross References.  Section 5311.4 is referred to in sections 5302, 5311.5, 5311.6, 5312.1 of this title.