Fulton County, Ga. V. T-Mobile, South LLC

The 9-1-1 charge, which the county imposed on wireless telephone service providers was a tax and a wireless telephone provider was entitled to a refund for charges paid for all of its prepaid customers.

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In this case of first impression, we hold that a “9-1-1 charge” imposed by Fulton County the “County” on wireless telephone service providers pursuant to the Georgia Emergency Telephone Number 9-1-1 Service Act of 19771 the “Act” is a “tax.” Furthermore, because appellee T-Mobile South, LLC’s predecessor in interest, PowerTel Atlanta, Inc., erroneously paid $101,618.66 to the County in connection with its prepaid wireless customers from June 2003 through May 2005 the “Refund Period”, we hold that T-Mobile may obtain a refund of that sum pursuant to OCGA § 48-5-380. Accordingly, we affirm the trial court’s grant of summary judgment to T-Mobile in its action against the County2 for a refund of taxes. Certain relevant facts are undisputed. During the Refund Period, the Act authorized local governments “to adopt a resolution to impose a monthly wireless enhanced ’9-1-1′ charge upon each wireless telecommunications connection subscribed to by telephone subscribers whose billing address is within the geographic area that is served by the local government.”3 In accordance therewith, the County adopted a resolution authorizing it to impose a wireless enhanced 9-1-1 charge beginning February 1, 1999, upon wireless telecommunications providers, such as T-Mobile. The resolution allowed the County to collect $1.00 per month per wireless connection provided to each “telephone subscriber.”4

The Act defines “telephone subscriber” as “a person or entity to whom local exchange telephone service or wireless service . . . is provided and in return for which the person or entity is billed on a monthly basis.”5 The “service supplier,”6 such as T-Mobile, is required to collect the 9-1-1 charge from its “telephone subscriber” and remit the money to the local government.7 T-Mobile, however, does not send monthly bills to those who purchase “prepaid” wireless service, because those customers pay in full for all of their minutes at the point of sale. Therefore, T-Mobile was not required to remit 9-1-1 charges for those customers.

Fulton County, Ga. V. T-Mobile, South LLC

The 9-1-1 charge, which the county imposed on wireless telephone service providers was a tax and a wireless telephone provider was entitled to a refund for charges paid for all of its prepaid customers.

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