HB0588

HOUSE BILL 588

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Linda M. Trujillo

AN ACT

RELATING TO EXECUTIVE REORGANIZATION; MOVING ADMINISTRATION OF THE ENHANCED 911 PROGRAM FROM THE DEPARTMENT OF FINANCE AND ADMINISTRATION TO THE DEPARTMENT OF INFORMATION TECHNOLOGY.

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

SECTION 1. 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 by dialing 9-1-1 or its equivalent;

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

C. "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. "advisory board" means the enhanced 911 advisory board created pursuant to Section 7 of this 2019 act;

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

G. "communication service" means any service that:

(1) is capable of and required by law to access, connect with or interface with the enhanced 911 system by directly dialing, initializing or otherwise activating the enhanced 911 system regardless of the transmission medium or technology employed; and

(2) provides or enables real-time or interactive communication;

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

I. "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;

J. "department" means the [taxation and revenue] department of information technology;

[K. "division" means the local government division of the department of finance and administration;

L.] K. "enhanced 911 surcharge" means the monthly uniform charge assessed on each access line in the state, on each active number for a commercial mobile radio service subscriber and on the number of VoIP lines for which the VoIP service provider enables the capacity for simultaneous calls, regardless of actual usage, to be connected to the public switched telephone network during the period for which the fixed charge is imposed for a VoIP service subscriber in New Mexico and the charge assessed on any other consumer purchase of communication service provided by a communications service provider that enables communication between a person needing assistance and a public safety answering point call-taker by dialing 9-1-1 or its equivalent; provided that an enhanced 911 surcharge shall not be assessed on the provision of broadband internet access service;

[M.] L. "enhanced 911 system" means, regardless of the technology used, a landline, wireless, NG-911 or ESInet system consisting of network switching equipment, database, mapping and on-premises equipment, or the functional equivalent thereof, 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, text or data, or any combination of these, and may feature limited or open access and may employ appropriate analog, digital switching or transmission technologies;

(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; and

(5) manage or administer the functions listed in Paragraphs (1) through (4) of this subsection;

[N.] M. "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;

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

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

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

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

[S.] R. "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.] S. "NG-911" means a next generation 911 system consisting of network, hardware, software, data and operational policies and procedures that:

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

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

(3) acquires and integrates additional data useful to call routing and handling;

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

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

(6) provides a secure environment for emergency communications;

[U.] T. "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 communications service provider; and provided further that "proprietary information" does not include individual payments made by the [division] department or any list of names and identifying information of subscribers who have not paid the surcharge;

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

V. "secretary" means the secretary of information technology;

W. "subscriber" means a person who purchases communication services at retail from a communications service provider that are capable of originating a 911 communication;

X. "surcharge" means the 911 emergency surcharge;

Y. "surcharge collected" means the amount of enhanced 911 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;

Z. "telecommunications company" means a person who provides wire telecommunications services that are capable of originating a 911 communication;

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

BB. "VoIP" means "interconnected voice-over-internet protocol 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 2. 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 communications service provider, on each active number for a commercial mobile radio service subscriber and on the number of VoIP lines for which the VoIP service provider enables the capacity for simultaneous calls, regardless of actual usage, to be connected to the public switched telephone network during the period for which the fixed charge is imposed. 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; and provided further that a 911 emergency surcharge shall not be assessed on the provision of broadband internet access service.

B. 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. The surcharge required to be collected by the communications service provider shall be added to and stated clearly and separately in the billings to the subscriber. The surcharge collected by the communications service provider shall not be considered revenue of the communications service provider.

C. A billed subscriber is liable for payment of the 911 emergency surcharge until it has been paid to the communications service provider.

D. A communications service provider 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 taxation and revenue department. A communications service provider, upon request and not more than once a year, shall provide to [the] that 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 communications service provider to be nonpayment of the surcharge. The communications service provider shall not be held liable for uncollected surcharge amounts."

SECTION 3. Section 63-9D-5.1 NMSA 1978 (being Laws 2017, Chapter 122, Section 10) is amended to read:

"63-9D-5.1. PREPAID WIRELESS ENHANCED 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) "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;

(3) "prepaid wireless enhanced 911 surcharge" 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) "provider" means a person that provides prepaid wireless communication service pursuant to a license issued by the federal communications commission;

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

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

(7) "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 enhanced 911 surcharge of one and thirty-eight hundredths percent is imposed on the gross value of each retail transaction. The prepaid wireless enhanced 911 surcharge 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 enhanced 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.

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 enhanced 911 surcharge 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 enhanced 911 surcharges that the seller collects from consumers as provided in this section, including all such surcharges that the seller is deemed to collect where the amount of the surcharge 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 enhanced 911 surcharge 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, the percentage specified in Subsection B of this section shall apply to the entire non-itemized price unless the seller elects to apply such percentage to:

(1) if the amount of the prepaid wireless communication service is disclosed to the consumer as a dollar amount, such dollar amount; or

(2) if the seller can identify the 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 non-tax purposes, such portion.

G. However, if a minimal amount of prepaid wireless communication service is sold with a prepaid wireless device for a single, non-itemized price, 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.

H. Prepaid wireless enhanced 911 surcharges collected by sellers shall be remitted to the taxation and revenue department at the times and in the manner provided with respect to the Gross Receipts and Compensating Tax Act. The taxation and revenue 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. A seller shall be permitted to deduct and retain three percent of prepaid wireless enhanced 911 surcharges that are collected by the seller from the consumer.

I. The audit and appeal procedures applicable to the Gross Receipts and Compensating Tax Act shall apply to prepaid wireless enhanced 911 surcharges.

J. The taxation and revenue 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 enhanced 911 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 enhanced 911 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 enhanced 911 surcharge applies to retail transactions occurring on or after July 1, 2017."

SECTION 4. 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 taxation and revenue department, which shall administer and enforce collection of the surcharge in accordance with the Tax Administration Act. The surcharge shall be remitted to the taxation and revenue 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 taxation and revenue department in such form as [the] that department and communications service provider shall agree upon. A 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 taxation and revenue department. The 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 taxation and revenue department made on or before the date it becomes due, a telecommunications company or commercial mobile radio 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 5. 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] department.

B. All surcharges collected and remitted to the taxation and revenue 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] secretary or the secretary's designee solely for the purpose of reimbursing local governing bodies or their fiscal agents and communications service providers for their costs of providing enhanced 911 service. A person who purchases communication services from a communications service provider 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] department may expend no more than [five] ten 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] department 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 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] department, on behalf of local governing bodies, shall directly pay or reimburse communications service providers for their costs of providing enhanced 911 service. If a communications service provider 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] department 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 6. 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] DEPARTMENT POWERS.--

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

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

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

D. The [division] department 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 or communications service provider shall be adopted, amended or repealed without a public hearing on the proposed action before the [director of the division] secretary or a hearing officer designated by the [director] secretary. 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 and communications service providers.

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

SECTION 7. A new section of the Enhanced 911 Act is enacted to read:

"[NEW MATERIAL] ENHANCED 911 ADVISORY BOARD--CREATION-- MEMBERSHIP--APPOINTMENTS--TERMS.--

A. The "enhanced 911 advisory board" is created as an advisory body to the department. The purpose of the advisory board is to advise and assist the department in coordinating and developing the implementation and operation of the enhanced 911 system and NG-911. The advisory board shall be composed of seven voting members as follows:

(1) a director of a municipally operated public safety answering point with between two and nine answering positions appointed by the executive director of the New Mexico municipal league;

(2) a director of a large municipally operated public safety answering point with ten or more answering positions appointed by the executive director of the New Mexico municipal league;

(3) a director of a small-county-operated public safety answering point with between two and nine answering positions appointed by the chair of the New Mexico counties 911 affiliate;

(4) a director of a large-county-operated public safety answering point with ten or more answering positions appointed by the chair of the New Mexico counties 911 affiliate;

(5) a director of a large or small public safety answering point with two or more answering positions appointed by the chair of the New Mexico counties 911 affiliate;

(6) a designee of the New Mexico state police division of the department of public safety appointed by the chief of the New Mexico state police; and

(7) a director of a New Mexico tribal public safety answering point to be appointed by the secretary of Indian affairs.

B. Appointing authorities shall strive to ensure that the composition of the advisory board represents urban and rural areas of the state.

C. Advisory board members shall serve for a term of four years; provided that at the first meeting of the advisory board, the initial members shall draw lots to determine the length of their terms as follows:

(1) three members shall serve an initial term of two years; and

(2) four members shall serve an initial term of four years.

D. Advisory board members shall serve until a successor is duly appointed and confirmed.

E. An advisory board member shall not serve more than two successive terms.

F. The secretary shall call the initial meeting of the advisory board, at which time the advisory board shall elect a chair, vice chair and any other officers it deems necessary and appropriate to serve one-year terms in those offices. After the initial meeting of the advisory board, the chair shall call and preside over advisory board meetings. The vice chair shall preside over advisory board meetings and take necessary actions of the chair when the chair is absent.

G. After the initial meeting of the advisory board, the advisory board shall elect a chair and vice chair yearly. After the expiration of the terms of the initial advisory board chair and vice chair, nominees for chair and vice chair shall have a minimum of one year of experience serving on the advisory board.

H. The advisory board shall meet at least once per calendar quarter.

I. For voting purposes, a quorum shall consist of at least four advisory board members. Any official action of the advisory board shall require a vote of a quorum of advisory board members.

J. A member of the advisory board who fails to attend at least one-half of the regularly scheduled meetings of the advisory board within a twelve-month period shall automatically be removed and the successor member shall be appointed by the appointing authority to serve out the remaining term of the member being replaced.

K. The advisory board shall devise bylaws for operation of the advisory board.

L. Public members of the advisory board may receive per diem and mileage in accordance with the provisions of the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance for their service on the advisory board."

SECTION 8. Section 63-9D-13 NMSA 1978 (being Laws 1990, Chapter 61, Section 2, as amended) is amended to read:

"63-9D-13. DEFINITIONS.--As used in the Enhanced 911 Bond Act:

A. "board" means the state board of finance;

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

B. "department" means the department of information technology;

C. "enhanced 911 bonds" means the bonds authorized in the Enhanced 911 Bond Act;

D. "enhanced 911 project" means actions authorized under Section 63-9D-14 NMSA 1978 that pertain to a specific component of the enhanced 911 system; and

E. "enhanced 911 revenue" means the revenue to and the income of the enhanced 911 fund that are pledged to the payment of enhanced 911 bonds under the Enhanced 911 Bond Act."

SECTION 9. Section 63-9D-17 NMSA 1978 (being Laws 1990, Chapter 61, Section 6, as amended) is amended to read:

"63-9D-17. BOND AUTHORIZATION.--The board may issue and sell enhanced 911 bonds in compliance with the Enhanced 911 Bond Act. The board shall schedule the issuance and sale of the bonds in the most expeditious and economical manner upon a finding by the board that the [division] department has certified that the need exists for the issuance of bonds and upon an action by the board designating the enhanced 911 fund to be the source of pledged revenues."

SECTION 10. TEMPORARY PROVISION--TRANSFER OF FUNCTIONS, PERSONNEL, APPROPRIATIONS, PROPERTY, RECORDS, CONTRACTS AND REFERENCES IN LAW.--

A. On July 1, 2019, all programs, functions, personnel, appropriations, money, statutory funds, records, furniture, equipment, supplies and other property belonging to the local government division of the department of finance and administration in relation to the administration of the enhanced 911 program pursuant to the Enhanced 911 Act are transferred to the department of information technology.

B. Beginning on July 1, 2019, all contractual obligations of the local government division of the department of finance and administration in relation to the administration of the enhanced 911 program pursuant to the Enhanced 911 Act are binding on the department of information technology.

SECTION 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.

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