Citations Affected: IC 6-8.1-1-1; IC 8-1-34.5; IC 36-8-16.5.
Synopsis: Broadcast satellite service fee and 911 fees. Imposes a
direct broadcast satellite service fee on direct broadcast satellite service
providers at the same percentage rate of gross revenue as the cable
service franchise fee rate in effect in a local government unit on
December 31, 2009. Permits the fee to be passed through to customers
of the provider. Requires a provider to remit the fees quarterly to the
department of state revenue. Requires a provider to submit a quarterly
report to the department indicating a provider's gross revenue and the
amount of fees paid with respect to each unit. Requires the department
to publish the direct broadcast satellite service fee rates before August
1, 2010. Requires the department to distribute the fees quarterly to each
unit. Permits the wireless enhanced 911 advisory board to set the
wireless emergency enhanced 911 fee at a rate not less $2 beginning
July 1, 2010, on each commercial mobile radio service subscriber that
is a customer having a place of primary use in Indiana. Provides for a
distribution of 25% of a part of the 911 fees to counties that have more
than two public safety answering points (PSAPs) and 75% to counties
that have reduced the number of PSAPs to no more than two.
Effective: Upon passage; July 1, 2010.
January 12, 2010, read first time and referred to Committee on Commerce, Energy,
Technology and Utilities.
A BILL FOR AN ACT to amend the Indiana Code concerning state
and local administration and to make an appropriation.
(IC 6-6-5); the commercial vehicle excise tax (IC 6-6-5.5); the excise
tax imposed on recreational vehicles and truck campers (IC 6-6-5.1);
the hazardous waste disposal tax (IC 6-6-6.6); the cigarette tax
(IC 6-7-1); the beer excise tax (IC 7.1-4-2); the liquor excise tax
(IC 7.1-4-3); the wine excise tax (IC 7.1-4-4); the hard cider excise tax
(IC 7.1-4-4.5); the malt excise tax (IC 7.1-4-5); the petroleum
severance tax (IC 6-8-1); the various innkeeper's taxes (IC 6-9); the
various food and beverage taxes (IC 6-9); the county admissions tax
(IC 6-9-13 and IC 6-9-28); the direct broadcast satellite service fee
(IC 8-1-34.5); the regional transportation improvement income tax
(IC 8-24-17); the oil inspection fee (IC 16-44-2); the emergency and
hazardous chemical inventory form fee (IC 6-6-10); the penalties
assessed for oversize vehicles (IC 9-20-3 and IC 9-30); the fees and
penalties assessed for overweight vehicles (IC 9-20-4 and IC 9-30); the
underground storage tank fee (IC 13-23); the solid waste management
fee (IC 13-20-22); and any other tax or fee that the department is
required to collect or administer.
property, and in kind contributions received by a direct broadcast
satellite service provider or an affiliate of the provider.
(b) For purposes of subsection (a), gross revenue includes the
following fees and charges to subscribers for direct broadcast
satellite service:
(1) Recurring monthly charges for direct broadcast satellite
service.
(2) Event based charges for direct broadcast satellite service,
including pay per view and video on demand charges.
(3) Charges for the rental of equipment related to providing
direct broadcast satellite service.
(4) Service charges related to providing direct broadcast
satellite service, including activation, installation, repair, and
maintenance charges.
(5) Administrative charges related to providing direct
broadcast satellite service, including service order and service
termination charges.
(6) Any other fee or charge that would be included in gross
revenue as determined under IC 8-1-34-23, regardless of
whether the direct broadcast satellite service provider, or an
affiliate of the provider, is subject to IC 8-1-34.
(c) For purposes of subsection (a), gross revenue does not
include the following received by a direct broadcast satellite service
provider or an affiliate of the provider:
(1) Revenue not actually received, regardless of whether it is
billed, including bad debts.
(2) Revenue received by an affiliate or any other person in
exchange for supplying goods and services used by a direct
broadcast satellite service provider.
(3) Refunds, rebates, or discounts made to a subscriber,
advertiser, or other person.
(4) Revenue from a service other than direct broadcast
satellite service, including:
(A) telecommunications service (as defined in 47 U.S.C.
153(46));
(B) information service (as defined in 47 U.S.C. 153(20));
or
(C) any other service that is not direct broadcast satellite
service.
(5) The tax imposed under IC 6-2.5-4-11.
(6) Any tax of general applicability imposed on a direct
broadcast satellite service provider, or a purchaser of direct
broadcast satellite service, by a federal, state, or local
governmental entity and required to be collected by a person
and remitted to the taxing entity, including the state gross
retail and use taxes (IC 6-2.5) and the utility receipts tax
(IC 6-2.3).
(7) Any foregone revenue from providing free or reduced cost
direct broadcast satellite service to any person, including
employees of the direct broadcast satellite service provider or
any governmental entity as required or permitted by federal,
state, or local law, except revenue foregone in exchange for
the goods or services through a trade or barter arrangement.
(8) Revenue from the sale of capital assets or surplus
equipment not used by the purchaser to receive direct
broadcast satellite service from the direct broadcast satellite
service provider.
(9) Reimbursements made by programmers to the direct
broadcast satellite service provider for marketing costs
incurred by the direct broadcast satellite service provider for
the introduction of new programming that exceed the actual
costs incurred by the direct broadcast satellite service
provider.
(10) Late payment fees collected from customers.
(11) Charges, other than those charges described in subsection
(b), that are aggregated or bundled with charges described in
subsection (b) on a customer's bill, if the direct broadcast
satellite service provider can reasonably identify the charges
in its books and records kept in the regular course of business.
Sec. 5. As used in this chapter, "person" includes an
administrator, an assignee, an association, a bank, a bureau, a club,
a commissioner, a consignee, a cooperative association, a
corporation, an estate, an executor, a fiduciary, a firm, a fraternity,
an Indiana political subdivision engaged in private or proprietary
activities, an individual, an institution, a joint venture, a limited
liability company, a lodge, a national bank, a partnership, a pool,
a receiver, a society, a sorority, a syndicate, a trust, or a trustee.
Sec. 6. As used in this chapter, "unit" has the meaning set forth
in IC 36-1-2-23.
Sec. 7. (a) Beginning January 1, 2011, a fee, known as the direct
broadcast satellite service fee, is imposed upon any direct
broadcast satellite service provider for the privilege of selling
direct broadcast satellite service in Indiana and based on gross
revenue derived each calendar quarter from selling, transmitting,
distributing, or otherwise providing direct broadcast satellite
service in each unit included in the provider's service area.
(b) The direct broadcast satellite service fee is imposed at a
percentage equal to the franchise fee percentage authorized under
IC 8-1-34-24 in the unit that is in effect as of December 31, 2009,
and paid to the unit by a holder of a certificate issued under
IC 8-1-34-17. The direct broadcast satellite service fee percentage
must be based on the billing address of the direct broadcast
satellite service subscriber at the time of the sale of the direct
broadcast satellite service. The department shall determine the
franchise fee percentage authorized under IC 8-1-34-24 in each
unit in effect as of December 31, 2009, and paid to each unit by a
holder of a certificate issued under IC 8-1-34-17. The department
of state revenue shall publish a report setting forth the applicable
direct broadcast satellite service fee percentages before August 1,
2010.
(c) The direct broadcast satellite service fee is in addition to the
state gross retail tax and use tax imposed by IC 6-2.5.
(d) The direct broadcast satellite service fee may be passed
through to, and collected from, the direct broadcast satellite
service provider's customers in Indiana. To the extent allowed
under federal or state law, a direct broadcast satellite service
provider may identify as a separate line item on each regular bill
issued to a customer the amount of the total bill assessed as a direct
broadcast satellite service fee under this section.
Sec. 8. (a) Each direct broadcast satellite service provider liable
for the direct broadcast satellite service fee shall file a report for
each calendar quarter and pay to the department the fee imposed
by this chapter for each calendar quarter. A direct broadcast
satellite service provider shall file a report for each calendar
quarter with the department and pay the direct broadcast satellite
service fee for that calendar quarter to the department not later
than twenty (20) days after the end of that calendar quarter. The
report must include a summary of gross revenue and fees
categorized by unit. This subsection does not create a liability of
the direct broadcast satellite service provider directly to a unit.
(b) The department shall prescribe the form of the direct
broadcast satellite service fee report required under subsection (a).
(c) The money received from the fees collected by the
department shall be credited to a special account to make
distributions to each unit before the last business day in January,
April, July, and October, based on the amount of fees received in
that month for the most recent calendar quarter from each
provider that provides direct broadcast satellite service in the unit.
The money is appropriated to make the distributions.
collected from each subscriber must be deposited in an escrow
account to be used to reimburse:
(A) CMRS providers, PSAPs, and the board for costs
associated with implementation of phase two (2) of the FCC
order; and
(B) the board for costs associated with other wireless enhanced
911 services mandated by the FCC and specified in the FCC
order but not incurred by CMRS providers or PSAPs.
A CMRS provider or a PSAP may recover costs under this
chapter if the costs are incurred before July 1, 2005, and invoiced
to the board not later than December 31, 2005. The board may
invest money in the account in the manner prescribed by section
23 of this chapter and may use the proceeds of the investments to
reimburse CMRS providers and PSAPs under this subdivision.
(2) At least twenty-five cents ($0.25) of the wireless emergency
911 fee collected from each subscriber must be deposited in an
escrow account and used to reimburse CMRS providers for the
actual costs incurred by the CMRS providers before July 1, 2005,
in complying with the wireless 911 requirements established by
the FCC order and rules that are adopted by the FCC under the
FCC order, including costs and expenses incurred in designing,
upgrading, purchasing, leasing, programming, installing, testing,
or maintaining all necessary data, hardware, and software
required to provide service as well as the costs of operating the
service. The board may invest money in the account in the manner
prescribed by section 23 of this chapter and may use the proceeds
of the investments to reimburse CMRS providers under this
subdivision. The CMRS provider may only request funds for true
cost recovery. The board may increase the amount held in escrow
under this subdivision not more than one (1) time a calendar year.
If the board adjusts the wireless emergency 911 fee under section
26(a) of this chapter within a calendar year, an adjustment to the
amount held in escrow under this subdivision for the calendar
year must be made at that time.
(3) Two percent (2%) of the wireless emergency 911 fee collected
from each subscriber may be used by the board to recover the
board's expenses in administering this chapter. However, the
board may increase this percentage at the time the board may
adjust the monthly fee assessed against each subscriber to allow
for full recovery of administration expenses.
(4) The remainder of the wireless emergency 911 fee collected
from each subscriber must be distributed and used in the
following manner:
(A) The board shall distribute:
(i) twenty-five percent (25%) of the remainder on a
monthly basis to each county containing one (1) or more
eligible PSAPs, as identified by the county in the notice
required under section 40 of this chapter, a part of the
remainder, not complying with section 51 of this chapter;
and
(ii) seventy-five percent (75%) of the remainder on a
monthly basis to each county complying with section 51
of this chapter;
based upon the county's percentage of the state's population (as
reported in the most recent official United States census).
(B) A county must use a distribution received under this clause
subdivision to make distributions to PSAPs that:
(i) are identified by the county under section 40 of this
chapter as eligible for distributions; and
(ii) accept wireless enhanced 911 service;
for actual costs incurred by the PSAPs in complying with the
wireless enhanced 911 requirements established by the FCC
order and rules.
(B) The amount of the fee remaining, if any, after the
distributions required under clause (A) must be distributed in
equal shares between the escrow accounts established under
subdivisions (1) and (2).
(b) Notwithstanding the requirements described in subsection (a),
the board may transfer money between and among the accounts in
subsection (a) in accordance with the following procedures:
(1) For purposes of acting under this subsection, the board must
have a quorum consisting of at least one (1) member appointed
under section 18(c)(2) of this chapter and at least one (1) member
appointed under section 18(c)(3) of this chapter.
(2) A transfer under this subsection must be approved by the
affirmative vote of:
(A) at least fifty percent (50%) of the members present at a
duly called meeting of the board who are appointed under
section 18(c)(2) of this chapter; and
(B) at least fifty percent (50%) of the members present at a
duly called meeting of the board who are appointed under
section 18(c)(3) of this chapter.
(3) The board may make transfers only one (1) time during a
calendar year.
wireless enhanced 911 services mandated by the FCC but not
specified in the FCC order or to make distributions to PSAPs
under this section.
(3) If the fee has been reduced under section 26(c) of this chapter,
the board shall determine how money remaining in the accounts
or money for uses described in subsection (a) is to be allocated
into the accounts described in this subsection or used for
distributions under this subsection.
This subsection does not affect the transfer provisions set forth in
subsection (b).