San Jose UUT?

[Mark Kent <mark () noc mainstreet net>]

Looking to fill the NANOG US Thanksgiving void
(as a Canadian in the USA, I have some spare time):

In San Jose, an upstream is charging us this 5% tax:

  http://www2.csjfinance.org/UUT.asp

I think it's bogus, because the tax "applies to intrastate telephone
communications only" and, consistent with the long-standing FCC 128
tariff, Internet circuits are regarded has being interstate and not
intrastate.

But the upstream says:

> > Our tax advisors at Deloitte have confirmed that we are required to
> > charge the San Jose User Utility Tax shown on your invoice. 
> > The Internet Tax Freedom Act exemption is not applicable to our
> > services as this exemption is for internet access only, not
> > bandwidth usage.

I think the last sentence is not relevant, but even if it
is relevant, is it correct?   I note that wikipedia says:

> > This law bars federal, state and local governments from taxing
> > Internet access and from imposing discriminatory Internet-only
> > taxes such as bit taxes, BANDWIDTH TAXES, and email taxes.

I know, IANAL, YANAL, Wiki is not a lawyer...  but I figure someone
else must have previously dealt with this (or something very close).

Thanks,
-mark