CHAPTER 115:
Telecommunications Regulations
Section
Telecommunications Franchise Agreement
115.01 Use of rights-of-way without a franchise agreement prohibited
Simplified Municipal Telecommunications Tax
115.23 Collection of telecommunications tax
115.25 Filing returns; remittance by retailers
115.26 Filing returns; payments by taxpayers
115.28 Erroneous payment of tax
115.29 Maintaining books and records
115.30 Confidential information
TELECOMMUNICATIONS FRANCHISE AGREEMENT
115.01 USE OF RIGHTS-OF-WAY WITHOUT A FRANCHISE AGREEMENT PROHIBITED.
(A) No telecommunications provider shall use any public right-of-way of the City of Lewistown without having executed a franchise agreement with the City of Lewistown.
(B) Definitions. For purposes of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
PUBLIC RIGHT-OF-WAY. Any municipal street, alley, water or public right-of-way dedicated or commonly used for utility purposes, including utility easements wherein the city has acquired the right and authority to locate or permit the location of utilities consistent with telecommunications facilities. PUBLIC RIGHT-OF-WAY shall not include any real or personal city property that is not specifically described in the previous sentence and shall not include city buildings and other structures or improvements, regardless of whether they are situated in the public right-of-way.
SALE OF TELECOMMUNICATIONS AT RETAIL. The transmitting, supplying, or furnishing of telecommunications and all services rendered in connection therewith for a consideration, other than between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries, when the gross charge made by one such corporation to another such corporation is not greater than the gross charge paid to the retailer for their use or consumption and not for sale.
TELECOMMUNICATIONS. Includes, but is not limited to, messages or information transmitted through use of local, toll, and wide area telephone service, channel services, telegraph services, teletypewriter service, computer exchange services, private line services, specialized mobile radio services, or any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite, or similar facilities. Unless the context clearly requires otherwise, TELECOMMUNICATIONS shall not include wireless telecommunications as hereinafter defined.
TELECOMMUNICATIONS shall not include value added services in which computer processing applications are used to act on the form, content, code, and protocol of the information for purposes other than transmission. TELECOMMUNICATIONS shall not include purchase of telecommunications by a telecommunications service provider for use as a component part of the service provided by him or her to the ultimate retail consumer who originates or terminates the end-to-end communications. Retailer access charges, right of access charges, charges for use of intercompany facilities, and all telecommunications resold in the subsequent provision and used as a component of, or integrated into, end-to-end telecommunications service shall not be included in gross charges as sales for resale. TELECOMMUNICATIONS shall not include the provision of cable services through a cable system as defined in the Cable Communications Act of 1984 (47 U.S.C. § 521 and following) as now or hereafter amended or cable or other programming services subject to an open video system fee payable to the city through an open video system as defined in the Rules of the Federal Communications Commission (47 C.D.F. 76.1550 and following) as now or hereafter amended.
TELECOMMUNICATIONS PROVIDER.
(a) Any telecommunications retailer; and
(b) Any person that is not a telecommunications retailer that installs, owns, operates or controls equipment in the public right-of-way that is used or designed to be used to transmit telecommunications in any form.
TELECOMMUNICATIONS RETAILER or RETAILER or CARRIER. Every person engaged in the business of making sales of telecommunications at retail as defined in this section.
WIRELESS TELECOMMUNICATIONS. Includes cellular mobile telephone services, personal wireless services as defined in Section 704(C) of the Telecommunications Act of 1996 (Public Law No. 104-104), 42 U.S.C. § 332(c)(7), as now or hereafter amended, including all commercial mobile radio services, and paging services.
(Ord. 01-14, passed 10-9-01)
SIMPLIFIED MUNICIPAL TELECOMMUNICATIONS TAX
115.20 SHORT TITLE.
The tax imposed by this subchapter shall be known as the “Simplified Municipal Telecommunications Tax” as authorized by Public Act 92-526 (ILCS Ch. 35, Act 635, §§ 1 et seq.), and is imposed in addition to all other taxes imposed by the city, the state, and any other governmental entity.
(Ord. 2001-16, passed 11-13-01; Am. Ord. 2002-4, passed 6-25-02)
115.21 TAX IMPOSED.
(A) A tax is hereby imposed upon:
(1) The act or privilege of originating or receiving the city intrastate telecommunications by a person at a rate of 6% of the gross charge for such telecommunications purchased at retail from a retailer by such person; and
(2) The act or privilege of originating in or receiving in the city interstate telecommunications by a person at a rate of 6% of the gross charge for such telecommunications purchased at retail from a retailer by such person. Any taxpayer, upon proof that the taxpayer has paid a tax in another state on the same event, shall be allowed a credit against the tax authorized by this division (A)(2) to the extent of the amount of such tax properly due and paid in another state which was not previously allowed as a credit against by another state or local tax in this state.
(Ord. 2001-16, passed 11-13-01; Am. Ord. 2002-4, passed 6-25-02; Am. Ord. 2002-7, passed 8-13-02)
115.22 DEFINITIONS.
The definitions of the terms set forth in Public Act 92-526 (ILCS Ch. 35, Act 635, § 10), as amended, are hereby incorporated by reference as the definitions of the terms used in this subchapter.
(Ord. 2001-16, passed 11-13-01; Am. Ord. 2002-4, passed 6-25-02)
115.23 COLLECTION OF TELECOMMUNICATIONS TAX.
(A) (1) The tax authorized by this subchapter shall be collected from the taxpayer by a retailer maintaining a place of business in this state and making or effectuating a sale at retail and shall be remitted by the retailer to the city.
(2) Any tax required to be collected pursuant to this subchapter and any tax collected by the retailer shall constitute a debt owed by the retailer to the city.
(3) Retailers shall collect the tax from the taxpayer by adding the tax to the gross charge for the act or privilege of originating or receiving telecommunications when sold for use in the manner prescribed by this subchapter.
(4) The tax authorized by this subchapter shall constitute a debt of the purchaser to the retailer that provides taxable services until paid and, if unpaid, is recoverable at law in the same manner as the original charge for taxable services.
(5) If the retailer fails to collect the tax from a taxpayer, the taxpayer shall pay the tax directly to the city as provided in this subchapter.
(B) The city shall, upon application, authorize the collection of this tax by any retailer not maintaining a place of business in this state if the retailer, to the satisfaction of the Mayor or his or her designee, furnishes adequate security to ensure collection and payment of the tax. Such retailer shall be issued without charge a permit to collect the tax imposed by this subchapter. When so authorized, it shall be the duty of the retailer to collect the tax upon all the gross charges for telecommunications originated or received in the city in the same manner and subject to the same requirements as a retailer maintaining a place of business in the state.
(Ord. 2001-16, passed 11-13-01)
115.24 REGISTRATION.
(A) Every retailer maintaining a place of business in this on the effective date of this subchapter shall register with the city within 30 days after that date.
(B) Every person becoming a retailer maintaining a place of business in this state after the effective date of this subchapter shall register with the city within 30 days after commencing that business.
(C) It shall be the duty of every retailer subject to the provisions of this subchapter to obtain and properly file the registration materials referred to in this section.
(Ord. 2001-16, passed 11-13-01)
115.25 FILING RETURNS; REMITTANCE BY RETAILERS.
(A) On or before the last day of each calendar month, every retailer maintaining a place of business in this state and every retailer authorized by the city to collect the tax imposed by this subchapter shall file with the city a remittance return and remit all applicable tax for the preceding calendar month.
(B) The return shall be filed on a form prescribed by the city containing such information as may be reasonably required, including:
(1) Name of retailer;
(2) Retailer’s principal place of business;
(3) The gross receipts during the month upon the basis of which the tax is imposed;
(4) Amount of tax;
(5) Total number of taxpayers subject to tax during current reporting period;
(6) Total number of taxpayers subject to tax added during current reporting period;
(7) Total number of taxpayers subject to tax deleted during current reporting period;
(8) Total number of taxpayers subject to tax during current reporting periods; and
(9) Such other reasonable and related information as the city may require.
(Ord. 2001-16, passed 11-13-01)
115.26 FILING RETURNS; PAYMENTS BY TAXPAYERS.
(A) When a taxpayer does not pay the tax imposed by this subchapter to a retailer, the taxpayer shall file with the city a tax return and pay the tax upon that portion of gross charges paid to the retailer during the preceding calendar month on or before the last day of the month following that month.
(B) The return shall be filed on a form prescribed by the city containing such information as may be reasonably required, including:
(1) Name and address of taxpayer;
(2) The gross receipts during the month upon the basis of which the tax is imposed;
(3) Amount of tax; and
(4) Such other reasonable and related information as the city may require.
(Ord. 2001-16, passed 11-13-01)
115.27 RESALE NUMBERS.
(A) If a person who originates or receives telecommunications in the city claims to be a reseller of telecommunications, that person shall apply to the city for a resale number. The applicant shall state facts showing why it is not liable for the tax imposed by this subchapter on any purchases of telecommunications and shall furnish such additional information as the Mayor or his or her designee may reasonably require.
(B) Upon approval of the application, the city shall assign a resale number to the applicant and shall certify the number to the applicant.
(C) The city may cancel the resale number of any person if the number:
(1) Was obtained through misrepresentation;
(2) Is used to originate or receive telecommunications tax-free when such telecommunications are not for resale; or
(3) Is no longer necessary because the person has discontinued making resales.
(D) The act or privilege of originating or receiving telecommunications in the city shall not be made tax-free on the ground of being a sale for resale unless the person has an active resale number issued by the department and furnishes that number to the retailer in connection with certifying to the retailer that a sale is nontaxable as the sale for resale.
(Ord. 2001-16, passed 11-13-01)
115.28 ERRONEOUS PAYMENT OF TAX.
If the city determines that an amount of tax had been paid which was not due under this subchapter, whether as a mistake of fact or an error of law, then such an amount shall be credited against any tax due, or to become due, under this subchapter from the taxpayer who made the erroneous payment. Any request for a claim shall in writing and shall be in writing and shall state the basis for the request of a credit. No erroneously paid more than three years prior to the filing of a claim therefore shall be so credited.
(Ord. 2001-16, passed 11-13-01)
115.29 MAINTAINING BOOKS AND RECORDS.
Every person subject to this subchapter shall keep books, records, papers, and other documents which are adequate to reflect the information which such person is required to report to the city by filing monthly returns. All books and records and other papers and documents required herein shall be kept in the English language and shall, at all times during business hours of the day, be subject to inspection by the officials and agents of the city.
(Ord. 2001-16, passed 11-13-01)
115.30 CONFIDENTIAL INFORMATION.
(A) All information received by the city from returns filed under this subchapter or from any investigation conducted under this subchapter shall be confidential unless examination or disclosure is otherwise required by law.
(B) Nothing in this subchapter prevents the city from publishing or making available to the public the names and addresses of persons filing returns under this subchapter, or reasonable statistics concerning the operation of the tax by grouping the contents of returns so the information in any individual return is not disclosed.
(C) Nothing in this subchapter prevents the city from divulging to the United States Government or any state or local government, or any officer or agency thereof, for exclusively official purposes, information received by the city in administering this subchapter provided that such other governmental agency agrees not to divulge requested tax information provided by the city.
(Ord. 2001-16, passed 11-13-01)
115.31 ADMINISTRATIVE REVIEW.
Any person who is aggrieved with any rule or regulation promulgated under this subchapter or who is held liable for the payment or remittance of any tax due under this subchapter may, after receiving written notice of such rule, regulation, or tax determination, appeal such ruling, regulation, or determination by filing a written notice of appeal in the office of the City Clerk within 14 calendar days of the person’s receipt of the City’s ruling, regulation, or determination. The written notice shall contain a brief statement which specifies the nature of the appeal and the relief sought.
(Ord. 2001-16, passed 11-13-01)
115.32 RULES AND REGULATIONS.
The Mayor or his or her designee is authorized to adopt, promulgate, and enforce rules and regulations pertaining to the enforcement and administration of this subchapter.
(Ord. 2001-16, passed 11-13-01)
115.99 PENALTY.
(A) Individuals or entities violating § 115.01 shall be guilty of a petty offense and fined $200. Each day that a violation continues shall constitute a separate offense.
(B) (1) Any person who violates, disobeys, omits, neglects, or fails or refuses to comply with or resists or opposes enforcement of any of the provisions of §§ 115.20 through 115.32 shall be deemed to be in violation of that subchapter and may be prosecuted for violating that subchapter and punished in accordance with applicable law. Upon conviction for a violation of that subchapter, the violator shall be fined not less than $100 nor more than $750 for each violation.
(2) The conviction or punishment or any person for the violation of §§ 115.20 through 115.32 shall not release such person from remitting any amount of tax, penalty, or interest due hereunder, nor shall the payment of the same prevent prosecution for the violation of that subchapter. All remedies shall be cumulative, and the use of one or more remedies by the city shall not bar the use of any other remedy available under §§ 115.20 through 115.32 or at law.
(3) In case any person fails to file a return when and as required by that subchapter but thereafter, prior to the city’s issuance of a notice of tax liability, files a return and remits the tax, the person shall also pay a penalty of 5% of the amount of the tax; provided, however, a 20% penalty shall be imposed for any fraudulent failure to remit such tax.
(4) In case any person files the return at the time required by §§ 115.20 through 115.32 but fails to remit the tax, or any part thereof, when due, a penalty of 5% of the amount of the tax unpaid when due shall be added thereto; provided, however, the fraudulent failure to remit any tax shall result in a 20% penalty.
(5) In case any person subject to §§ 115.20 through 115.32 fails to file a return, the city shall determine the amount of tax due from that person according to its best judgment and information, which amount so fixed by the city shall be prima facie correct and shall be prima facie evidence of the correctness of the amount of tax due, as shown in such determination. In making any such determination of tax due, it shall be permissible for the city to show a figure that represents the tax due for any given period of six months instead of showing the amount of tax due for each month separately. The city shall issue that person a notice of tax due for the amount of tax claimed by the city to be due, together with a penalty of 20% thereof.
(6) In case any person subject to §§ 115.20 through 115.32 fails to remit the tax, or any portion thereof, or any penalty or interest provided for in §§ 115.20 through 115.32 when due, the city may bring suit against that person to recover the amount of such tax and penalty and interest.
(7) In addition to any penalty provided for in §§ 115.20 through 115.32, any amount of tax which is not remitted when due shall bear interest at the rate of 2% per month or fraction thereof from the date when such tax becomes past due until such tax is paid voluntarily or pursuant to court order obtained by the city.
(Ord. 01-14, passed 10-9-01; Am. Ord. 2001-16, passed 11-13-01)