HB0328

HOUSE BILL 328

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Roberto "Bobby" J. Gonzales

AN ACT

RELATING TO COMMUNICATIONS; AMENDING, REPEALING AND ENACTING SECTIONS OF THE ENHANCED 911 ACT AND AMENDING SECTIONS OF THE ENHANCED 911 BOND ACT TO PROVIDE FOR SURCHARGES TO BE IMPOSED ON COMMUNICATIONS SERVICES, INCLUDING VOICE OVER INTERNET PROTOCOL SUBSCRIPTIONS AND ELECTRONIC DATA NETWORKS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 63-9D-2 NMSA 1978 (being Laws 1989, Chapter 25, Section 2, as amended) is amended to read:

"63-9D-2. FINDINGS AND PURPOSE.--

A. The legislature finds that:

(1) isolated people, the elderly, the young and victims of crime are often at risk and without help;

(2) children, elderly persons and victims of crime are frequently unable to explain directions to the location of an emergency situation;

(3) life-threatening accidents, fires, crimes and natural disasters occur in the state each year;

(4) an enhanced 911 [telephone] emergency system provides:

(a) expansion of the benefits of the basic 911 emergency telephone number;

(b) faster response time which minimizes the loss of life and property;

(d) immediate visual display of the location and [telephone] number of the caller; and

(e) curtailment of abuses of the emergency system by documenting callers; and

(5) New Mexico communities could make efficient use of the enhanced 911 [telephone] emergency system if the communities had adequate funding available.

B. It is the purpose of the Enhanced 911 Act to further the public interest and protect the safety, health and welfare of the people of New Mexico by enabling the development, installation and operation of enhanced 911 emergency reporting systems to be operated under shared state and local governmental management and control."

SECTION 2. Section 63-9D-3 NMSA 1978 (being Laws 1989, Chapter 25, Section 3, as amended) is amended to read:

"63-9D-3. DEFINITIONS.--As used in the Enhanced 911 Act:

A. "911 call" means any real-time communication, message, signal or transmission between a person needing assistance and a public safety answering point call-taker;

B. "911 emergency surcharge" means the monthly uniform charge assessed on each access line in the state [and], on each active number for a commercial mobile radio service subscriber [whose billing address is] on each active number for a VoIP service subscriber in New Mexico and the charge assessed on any other consumer purchase of communications service provided by a communications service provider that enables communication between a person needing assistance and a public safety answering point call-taker. The E911 surcharge should be assessed to the retail customer based upon the maximum number of active telephone numbers capable of simultaneously contacting the local public safety answering point;

[B.] C. "911 service area" means the area designated by the fiscal agent, local governing body or the division to receive enhanced 911 service;

[C.] D. "access line" means a telecommunications company's line that has the capability to reach local public safety agencies by dialing 911, but does not include a line used for the provision of interexchange services or commercial mobile radio service;

[D.] E. "commercial mobile radio service" means service provided by a wireless real-time two-way voice communication device, including:

(1) radio-telephone communications used in cellular telephone service;

(2) the functional or competitive equivalent of radio-telephone communications used in cellular telephone service;

(3) a personal communications service; or

(4) a network radio access line;

[E.] F. "commercial mobile radio service provider" means a person who provides commercial mobile radio services, including a person who purchases commercial mobile radio service from a provider and resells that service;

[F.] G. "commission" means the public regulation commission;

H. "communication service" means any service that:

(1) uses telephone, internet protocol addresses, electronic data networks or protocols or their functional equivalents or successors;

(2) is capable of accessing, connecting with or interfacing with the enhanced 911 system by dialing, initializing or otherwise activating the enhanced 911 system regardless of the transmission medium or technology employed; and

(3) provides or enables real-time or interactive communications;

I. "communications service provider" means any entity that provides communication services;

[G.] J. "database" means information that is collected, formatted and disseminated and that is necessary for the functioning of the enhanced 911 system, including geographic information system (GIS) addressing and digital mapping information;

[H.] K. "department" means the taxation and revenue department;

[I.] L. "division" means the local government division of the department of finance and administration;

[J.] M. "enhanced 911 system" means a landline [or], wireless, NG-911 or ESInet system consisting of network switching equipment, database, mapping and on-premises equipment that uses the single three-digit number 911 for reporting police, fire, medical or other emergency situations, thereby enabling a caller to reach a public safety answering point to report emergencies by dialing 911, and includes the capability to:

(1) selectively route incoming 911 calls to the appropriate public safety answering point operating in a 911 service area;

(2) automatically display the name, address and telephone number of an incoming 911 call on a video monitor at the appropriate public safety answering point;

(3) provide one or more access paths for communications between users at different geographic locations through a network system that may be designed for voice or data, or both, and may feature limited or open access and may employ appropriate analog, digital switching or transmission technologies; and

(4) relay to a designated public safety answering point a 911 caller's number and base station or cell site location and the latitude and longitude of the 911 caller's location in relation to the designated public safety answering point;

[K.] N. "enhanced 911 equipment" means the public safety answering point equipment directly related to the operation of an enhanced 911 system, including automatic number identification or automatic location identification controllers and display units, printers, logging recorders and software associated with call detail recording, call center work stations, training, latitude and longitude base station or cell site location data and GIS equipment necessary to obtain and process locational map and emergency service zone data for landline and wireless callers;

[L.] O. "equipment supplier" means a person who provides or offers to provide [telecommunications] communications equipment necessary for the establishment of enhanced 911 services;

P. "ESInet" means emergency services internet protocol network, an internet-protocol-based, multipurpose inter-network (network of networks) supporting local, regional, state and national public safety communications services in addition to 911;

[M.] Q. "fiscal agent" means the local governing body that administers grants from the fund for a given locality or region by agreement;

[N.] R. "fund" means the enhanced 911 fund;

[O.] S. "local governing body" means the board of county commissioners of a county or the governing body of a municipality as defined in the Municipal Code;

T. "NG-911" means a next generation 911 system comprised of network, hardware, software, data and operational policies and procedures to:

(1) provide standardized interfaces from call and message services;

(2) process all types of emergency calls including non-voice (multimedia) messages;

(3) acquire and integrate additional data useful to call routing and handling;

(4) deliver the calls, messages and data to appropriate public safety answering points and other appropriate emergency entities;

(5) support data and communications needs for coordinated incident response and management; and

(6) provide a secure environment for emergency communications;

[P.] U. "proprietary information" means customer lists, customer counts, technology descriptions or trade secrets, including the actual or development costs of individual components of an enhanced 911 system; provided that such information is designated as proprietary by the [commercial mobile radio] communications service provider [or telecommunications company]; and provided further that "proprietary information" does not include individual payments made by the division or any list of names and identifying information of subscribers who have not paid the surcharge;

[Q.] V. "public safety answering point" means a twenty-four-hour local communications facility that receives 911 service calls and directly dispatches emergency response services or that relays calls to the appropriate public or private safety agency;

[R.] W. "subscriber" means a person who [is a retail purchaser of telecommunications] purchases communications services at retail from a communications service provider that are capable of originating a 911 call;

[S.] X. "surcharge" means the 911 emergency surcharge;

Y. "surcharge collected" means the amount of E911 surcharge billed or received or deemed to have been received by the seller or provider, consistent with the seller's or provider's method of accounting, including accrual or cash;

[T.] Z. "telecommunications company" means a person who provides wire telecommunications services that are capable of originating a 911 call; [and

U.] AA. "vendor" means a person that provides 911 equipment, service or network support;

BB. "VoIP" means "interconnected voice-over- internet protocol service" or "interconnected VoIP service" as defined in the Code of Federal Regulations, Title 47, Part 9 Section 9.3, as amended; and

CC. "VoIP service provider" or "interconnected voice-over-internet protocol service provider" means an entity that provides interconnected voice over internet protocol service to end users."

SECTION 3. Section 63-9D-5 NMSA 1978 (being Laws 1989, Chapter 25, Section 5, as amended) is amended to read:

"63-9D-5. IMPOSITION OF SURCHARGE.--

A. There is imposed a 911 emergency surcharge in the amount of fifty-one cents ($.51) to be billed to each subscriber access line by a [telecommunications company and] communications service provider on each active number for a commercial mobile radio service subscriber, [whose billing address] and on each active number for a VoIP service subscriber, that allows communication between a person needing assistance and a public service answering point call-taker. The surcharge is imposed on all subscribers whose place of primary use as defined in the federal Mobile Telecommunications Sourcing Act is in New Mexico; provided, however, that the surcharge shall not be imposed upon subscribers receiving reduced rates pursuant to the Low Income Telephone Service Assistance Act; and provided further that the surcharge shall not apply to prepaid wireless communication service, which shall be subject to the surcharge imposed pursuant to the Enhanced 911 Act.

B. [Commercial mobile radio] All communications service providers shall be required to bill and collect the surcharge from their subscribers whose places of primary use, as defined in the federal Mobile Telecommunications Sourcing Act, are in New Mexico. [Telecommunications companies shall be required to bill and collect the surcharge from their subscribers.] The surcharge required to be collected by [the commercial mobile radio service provider or telecommunications company] all communications service providers shall be added to and stated clearly and separately in the billings to the subscriber. The surcharge collected by the [commercial mobile radio service provider or telecommunications company] communications service provider shall not be considered revenue of the [commercial mobile radio] communications service provider [or telecommunications company].

C. A billed subscriber is liable for payment of the 911 emergency surcharge until it has been paid to the [commercial mobile radio] communications service provider [or telecommunications company].

D. A [commercial mobile radio] communications service provider [or telecommunications company] has no obligation to take legal action to enforce the collection of the surcharge; an action may be brought by or on behalf of the department. A [commercial mobile radio] communications service provider [or telecommunications company], upon request and not more than once a year, shall provide to the department a list of the surcharge amounts uncollected, along with the names and addresses of subscribers who carry a balance that can be determined by the [commercial mobile radio] communications service provider [or telecommunications company] to be nonpayment of the surcharge. The [commercial mobile radio] communications service provider [or telecommunications company] shall not be held liable for uncollected surcharge amounts.

E. The surcharge shall commence with the first billing period of each subscriber on or [following] after July 1, 2005."

SECTION 4. A new section of the Enhanced 911 Act is enacted to read:

"[NEW MATERIAL] PREPAID WIRELESS 911 SURCHARGE--COLLECTION AND ADMINISTRATION OF SURCHARGE--LIABILITY OF SELLERS--EXCLUSIVITY OF SURCHARGE.--

A. As used in this section:

(1) "consumer" means a person who purchases prepaid wireless communication service in a retail transaction;

(2) "department" means the taxation and revenue department;

(3) "prepaid wireless E911 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 section;

(4) "prepaid wireless communication service" means a wireless communication service that allows a caller to dial 911 to access the 911 system, which service 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;

(5) "provider" means a person that provides prepaid wireless communication service pursuant to a license issued by the federal communications commission;

(6) "retail transaction" means the purchase of prepaid wireless communication service from a seller for any purpose other than resale;

(7) "seller" means a person who sells prepaid wireless communication service to another person; and

(8) "wireless communication service" means commercial mobile radio service as defined by Section 20.3 of Title 47 of the Code of Federal Regulations, as amended.

B. A prepaid wireless E911 charge of one and thirty-eight hundredths percent is imposed on each retail transaction. The prepaid wireless E911 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 E911 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.

C. For purposes of Subsection B of this 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 the Gross Receipts and Compensating Tax Act.

D. The prepaid wireless E911 charge is 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 E911 charges that the seller collects from consumers as provided in this 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.

E. The amount of the prepaid wireless E911 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.

F. When prepaid wireless communication service is sold with one or more other products or services for a single, non-itemized price, then the percentage specified in Subsection B of this section shall apply to the entire non-itemized price unless the seller can identify and disclose to the purchaser the:

(1) actual dollar amount of the prepaid wireless communication service included in the package; or

(2) portion of the price that is attributable to the prepaid wireless communication service by reasonable and verifiable standards from its books and records that are kept in the regular course of business for other purposes, including but not limited to non-tax purposes.

If such identification and disclosure can be made, the percentage shall be applied to that portion of the package. However, if a minimal amount of prepaid wireless communication service is sold with a prepaid wireless device for a single, non-itemized price, then the seller may elect not to apply the percentage specified in Subsection B of this section to such transaction. For purposes of this subsection, an amount of service denominated as ten minutes or less, or five dollars ($5.00) or less, is minimal.

G. Prepaid wireless E911 charges collected by sellers shall be remitted to the department at the times and in the manner provided by with respect to the Gross Receipts and Compensating Tax Act. The department shall establish registration and payment procedures that substantially coincide with the registration and payment procedures that apply to the Gross Receipts and Compensating Tax Act.

H. A seller shall be permitted to deduct and retain three percent of prepaid wireless E911 charges that are collected by the seller from consumers as the administrative cost for collecting the surcharge.

I. The audit and appeal procedures applicable to the Gross Receipts and Compensating Tax Act shall apply to prepaid wireless E911 charges.

J. The department shall establish procedures by which a seller of prepaid wireless communication services 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 the Gross Receipts and Compensating Tax Act.

K. No provider or seller of prepaid wireless communication services shall be liable for damages to any person resulting from or incurred in connection with the provision of, or failure to provide, 911 or E911 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 911 or E911 service.

L. No provider or seller of prepaid wireless communication services shall be liable for damages to any person resulting from or incurred in connection with the provision of any 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 investigation or other law enforcement activity by such law enforcement officer.

M. In addition to the protection from liability provided by Subsections K and L of this section, each provider and seller shall be entitled to the further protection from liability as provided pursuant to Section 63-9D-10 NMSA 1978.

N. The prepaid wireless E911 charge applies to retail transactions occurring on or after May 19, 2011."

SECTION 5. Section 63-9D-7 NMSA 1978 (being Laws 1989, Chapter 25, Section 7, as amended) is amended to read:

"63-9D-7. REMITTANCE OF CHARGES--ADMINISTRATIVE FEE.--

A. The surcharge collected shall be remitted monthly to the department, which shall administer and enforce collection of the surcharge in accordance with the Tax Administration Act. The surcharge shall be remitted to the department no later than the twenty-fifth day of the month following the month in which the surcharge was imposed. At that time, a return for the preceding month shall be filed with the department in such form as the department and [telecommunications company or commercial mobile radio] communications service provider shall agree upon. A [telecommunications company or commercial mobile radio] communications service provider required to file a return shall deliver the return together with a remittance of the amount of the surcharge payable to the department. The [telecommunications company or commercial mobile radio] communications service provider shall maintain a record of the amount of each surcharge collected pursuant to the Enhanced 911 Act. The record shall be maintained for a period of three years after the time the surcharges were collected.

B. From a remittance to the department made on or before the date it becomes due, a [telecommunications company or commercial mobile radio] communications service provider required to make a remittance shall be entitled to deduct and retain one percent of the collected amount or fifty dollars ($50.00), whichever is greater, as the administrative cost for collecting the surcharge."

SECTION 6. Section 63-9D-8 NMSA 1978 (being Laws 1989, Chapter 25, Section 8, as amended) is amended to read:

"63-9D-8. ENHANCED 911 FUND--CREATION--ADMINISTRATION--

DISBURSEMENT--REPORTS TO LEGISLATURE.--

A. There is created in the state treasury a fund that shall be known as the "enhanced 911 fund". The fund shall be administered by the division.

B. All surcharges collected and remitted to the department shall be deposited in the fund.

C. Money deposited in the fund and income earned by investment of the fund are appropriated for expenditure in accordance with the Enhanced 911 Act and shall not revert to the general fund.

D. Payments shall be made from the fund to, or on behalf of, participating local governing bodies or their fiscal agents upon vouchers signed by the director of the division solely for the purpose of reimbursing local governing bodies or their fiscal agents [commercial mobile radio] and communications service providers [or telecommunications companies] for their costs of providing enhanced 911 service. A person who purchases [commercial mobile radio services or telecommunications] communications services from a [commercial mobile radio] communications service provider [or telecommunications company] for the purpose of reselling that service is not eligible for reimbursement from the fund. Money in the fund may be used for the payment of bonds issued pursuant to the Enhanced 911 Bond Act.

E. Annually, the division may expend no more than five percent of all money deposited annually in the fund for administering and coordinating activities associated with implementation of the Enhanced 911 Act.

F. Money in the fund may be awarded as grant assistance to provide enhanced 911 service and equipment upon application of local governing bodies or their fiscal agents to the division and upon approval by the state board of finance. If it is anticipated that the funds available to pay all requests for grants will be insufficient, the state board of finance may reduce the percentage of assistance to be awarded. In the event of such reduction, the state board of finance may award supplemental grants to local governing bodies that demonstrate financial hardship.

G. After requesting enhanced 911 service from a [telecommunications company or commercial mobile radio] communications service provider, a local governing body may, by ordinance or resolution, recover from the fund an amount necessary to recover the costs of providing the enhanced 911 system in its designated 911 service area. The division, on behalf of local governing bodies, shall directly pay or reimburse [commercial mobile radio] communications service providers [and telecommunications companies] for their costs of providing enhanced 911 service. If a [commercial mobile radio] communications service provider [or telecommunications company] does not receive payment or reimbursement for the costs of providing enhanced 911 service, the provider is not obligated to provide that service.

H. The division shall report to the legislature each session the status of the fund and whether the current level of the 911 emergency surcharge is sufficient, excessive or insufficient to fund the anticipated needs for the next year."

SECTION 7. Section 63-9D-8.1 NMSA 1978 (being Laws 1990, Chapter 87, Section 3, as amended) is amended to read:

"63-9D-8.1. DIVISION POWERS.--

A. The division may adopt reasonable rules necessary to carry out the provisions of the Enhanced 911 Act.

B. The division may fund enhanced 911 systems pursuant to the provisions of the Enhanced 911 Act.

C. Division powers are limited and do not include power to intervene between two vendors or restrict marketing efforts of vendors.

D. The division and the local governing body may establish 911 service areas.

E. Unless otherwise provided by law, no rule affecting any person, agency, local governing body [commercial mobile radio] or communications service provider [or telecommunications company] shall be adopted, amended or repealed without a public hearing on the proposed action before the director of the division or a hearing officer designated by the director. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule or proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons or agencies who have made a written request for advance notice of the hearing and to all local governing bodies [telecommunications companies] and [commercial mobile radio] communications service providers.

F. All rules shall be filed in accordance with the State Rules Act."

SECTION 8. Section 63-9D-10 NMSA 1978 (being Laws 1989, Chapter 25, Section 10, as amended) is amended to read:

"63-9D-10. IMMUNITY.--Enhanced 911 systems are within the governmental powers and authorities of the local governing body or state agency in the provision of services for the public health, welfare and safety. In contracting for such services or the provisioning of an enhanced 911 system, except for gross or willful or wanton negligence or intentional acts, the local governing body, public agency, equipment supplier, [telecommunications company, commercial mobile radio] communications service provider and their employees and agents are not liable for damages resulting from installing, maintaining or providing enhanced 911 systems or transmitting 911 calls."

SECTION 9. Section 63-9D-11 NMSA 1978 (being Laws 1989, Chapter 25, Section 11, as amended) is amended to read:

"63-9D-11. PRIVATE LISTING SUBSCRIBERS AND 911 SERVICE.--

A. Private listing subscribers waive the privacy afforded by nonlisted or nonpublished numbers only to the extent that the name and address associated with the telephone number may be furnished to the enhanced 911 system for call routing or for automatic retrieval of location information in response to a call initiated to 911.

B. Information regarding the identity of private listing subscribers provided by a communications service provider, including names, addresses, telephone numbers or other identifying information, is not a public record and is not available for inspection.

C. Proprietary information provided by a [commercial mobile radio] communications service provider [or telecommunications company] is not public information and may not be released to any person without the express permission of the submitting provider, except that information may be released or published as aggregated data that does not identify the number of subscribers or identify enhanced 911 system costs attributable to an individual [commercial mobile radio] communications service provider [or telecommunications company]."

SECTION 10. Section 63-9D-11.1 NMSA 1978 (being Laws 1993, Chapter 48, Section 13) is amended to read:

"63-9D-11.1. VIOLATION--PENALTIES.--

A. Any person who knowingly dials 911 for the purpose of reporting a false alarm, making a false complaint or reporting false information that results in an emergency response by any public safety agency is guilty of a petty misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500) or imprisonment for a term not to exceed six months, or both.

B. A municipality or a county may adopt an ordinance making it a violation for any person to knowingly dial 911 for the purpose of reporting a false alarm, making a false complaint or reporting false information that results in an emergency response by any public safety agency. The municipality may adopt and enforce the ordinance pursuant to the authority provided in Section 3-17-1 NMSA 1978. The county may adopt and enforce the ordinance pursuant to the authority provided in Section 4-37-1 NMSA 1978."

SECTION 11. Section 63-9D-14 NMSA 1978 (being Laws 1990, Chapter 61, Section 3, as amended) is amended to read:

"63-9D-14. ENHANCED 911 BONDS--AUTHORITY TO ISSUE--PLEDGE OF REVENUES--LIMITATION ON ISSUANCE.--

A. In addition to any other law authorizing the board to issue revenue bonds, the board may issue enhanced 911 bonds pursuant to the Enhanced 911 Bond Act for the purposes specified in this section.

B. Enhanced 911 bonds may be issued for:

(1) acquiring, extending, enlarging, bettering, repairing, improving, constructing, purchasing, furnishing, equipping or rehabilitating the enhanced 911 system, the payment of which shall be secured by enhanced 911 revenues;

(2) reimbursing a [commercial mobile radio] communications service provider [or telecommunications company] for its reasonable costs of providing enhanced 911 service, the payment of which shall be secured by enhanced 911 revenues; or

(3) reimbursing a local governing body or its fiscal agent for its reasonable costs of providing the enhanced 911 system, the payment of which shall be secured by enhanced 911 revenues.

C. The board may pledge irrevocably enhanced 911 revenues in the manner set forth in Subsection B of this section to the payment of the interest on and principal of enhanced 911 bonds. Any general determination by the board that expenditures are reasonably related to and constitute a part of a specified enhanced 911 project shall be conclusive if set forth in the proceedings authorizing the enhanced 911 bonds."

SECTION 12. REPEAL.--Section 63-9D-4.1 NMSA 1978 (being Laws 2003, Chapter 339, Section 1) is repealed.

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