New York Advisory Opinion TSB-A-09(16)C: Are two-way paging services subject to the Public Safety Communications Surcharge under Tax Law section 186-f?

Plain-English summary

A paging provider offered a two-way paging service using devices with text display and keypads. The "dispatch" feature lets users within an organization text each other entirely over the provider's Commercial Mobile Radio Service (CMRS) network, never touching the public switched telephone network (PSTN). The devices can receive inbound pages from PSTN users, but they can't carry voice, can't dial a phone number (including 911), and can't reach a 911 dispatcher in real time. The provider asked whether this service is subject to the Public Safety Communications Surcharge ($1.20/month per device) under Tax Law section 186-f.

The Department concluded it is not. The surcharge applies to "wireless communications service," defined (Tax Law section 186-f.1(d)) as commercial mobile services that "offer real time, two-way voice or data service that is interconnected with the public switched telephone network or otherwise provides access to emergency communication services." While the Department had previously held the surcharge reaches "two-way beepers . . . that have two-way wireless communications capabilities over a public switched network," this service is not interconnected with the PSTN and gives users no access to emergency services. So it falls outside the definition and is not subject to the surcharge. (The surcharge had just moved from County Law section 309 to the new Tax Law section 186-f effective September 1, 2009, with the relevant provisions unchanged.)

What this means for you

Paging and wireless data providers

The surcharge turns on PSTN interconnection and emergency-service access -- not on whether the service is "two-way." A closed two-way data/paging service with no 911 reachability and no PSTN interconnection is outside the surcharge.

Accountants and tax professionals

Analyze the device's actual capabilities: can it reach the PSTN, and can a user reach 911 in real time? If both are no, section 186-f does not apply, even for genuinely two-way devices.

Common questions

Q: Is two-way paging subject to New York's public safety surcharge?
A: Not if it isn't interconnected with the public switched telephone network and provides no access to emergency (911) services. Then it falls outside Tax Law section 186-f.

Q: What triggers the surcharge?
A: Real-time two-way voice or data service that is PSTN-interconnected or otherwise provides access to emergency communications.

Citations and references

• Tax Law § 186-f (Public Safety Communications Surcharge on wireless communications service)
• Tax Law § 186-f.1(d) (definition of wireless communications service)
• 47 USC § 332(d) (federal definition of commercial mobile service)
• TSB-M-02(5)M; TSB-M-09(8)C (prior guidance on the surcharge)

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/corporation_ao_2009.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/corporation/a09_16c.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-09(16)C
Corporation Tax
September 21, 2009

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. C090619A

Petitioner, name and address redacted, requests an Advisory Opinion about whether its two-way
paging services are subject to the New York State Public Safety Communications Surcharge. We conclude
that they are not.
Facts
Petitioner is a provider of one-way and two-way paging and various other wireless services. The
particular service about which Petitioner inquires is a two-way paging service that uses a paging device with
enhanced text display and full keypads. The service can be used in two ways. The “dispatch” service is
often used within organizations (such as medical, business or government entities), and allows direct twoway text communications among users within that organization. This aspect of the service is provided
entirely over Petitioner’s Commercial Mobile Radio Service (CMRS) network, and does not utilize the
Public Switched Telephone Network (PSTN). The service can also be used to receive in-bound pages from
persons outside the organization. The in-bound pages are received from users of the PSTN at one of
Petitioner’s paging terminals. Once the message is received by the paging terminal, the PSTN user’s call is
terminated, and a second transmission is initiated between the paging terminal and the recipient’s paging
device over Petitioner’s CMRS network. The paging devices do not allow voice communications and do not
allow the user to connect with other types of wireless devices or to call a phone number associated with the
PSTN. Petitioner’s paging devices are not capable of dialing a phone number, including 911, and are not
capable of real-time communication with a 911 dispatcher.
Analysis
Tax Law section 186-f imposes the Public Safety Communications Surcharge on wireless
communications service provided to a customer with a place of primary use in New York State.1 The
Surcharge is imposed at a rate of $1.20 per month for each wireless device in service during any part of the
month. Wireless communications service is defined as:
[A]ll commercial mobile services, as that term is defined in [USC §332(d)], as amended
from time to time, including, but not limited to, all broadband personal communications services,
wireless radio telephone services, geographic area specialized and enhanced specialized mobile radio
services, and incumbent-wide area specialized mobile radio licenses, which offer real time, two-way
voice or data service that is interconnected with the public switched telephone network or otherwise
provides access to emergency communication services.

1

Prior to September 1, 2009, the State Wireless Communication Service Surcharge was imposed by section 309 of the
County Law. Effective September 1, 2009, County Law section 309 was repealed and replaced with the Public Safety
Communications Surcharge in new Tax Law section 186-f. County Law section 309 and Tax Law section 186-f are
substantially similar and the relevant portions of the law for purposes of this Advisory Opinion are unchanged.

-2-

TSB-A-09(16)C
Corporation Tax
September 21, 2009

Tax Law § 186-f.1(d). The Tax Department previously concluded that the Surcharge applies to “two-way
beepers, and other devices . . . that have two-way wireless communications capabilities over a public
switched network.” State Wireless Communications Service Surcharge, TSB-M-02(5)M; see also Public
Safety Communications Surcharge, TSB-M-09(8)C. In contrast, the service about which Petitioner inquires
is not interconnected with the PSTN and does not allow users to connect directly to emergency
communication services. Accordingly, the service Petitioner describes is not subject to the Public Safety
Communications Surcharge imposed by Tax Law section 186-f.

DATED: September 21, 2009

NOTE:

/S/
Jonathan Pessen
Director of Advisory Opinions
Office of Counsel

An Advisory Opinion is issued at the request of a person or entity. It is limited to the
facts set forth therein and is binding on the Department only with respect to the
person or entity to whom it is issued and only if the person or entity fully and
accurately describes all relevant facts. An Advisory Opinion is based on the law,
regulations, and Department policies in effect as of the date the Opinion is issued or
for the specific time period at issue in the Opinion.