SCHUMAN, S.J.
This case involves a dispute between the City of Eugene and Comcast of Oregon II, Inc. (Comcast) over whether the city can impose certain fees on revenue that Comcast earned by providing broadband Internet service in Eugene. According to the city, Comcast's broadband Internet service is a "telecommunications service" under the city's telecommunications ordinance, and the city is therefore entitled to collect a two-percent registration fee and seven-percent license fee that the ordinance imposes on gross revenues derived from telecommunications services within the city. Comcast, for its part, claims that the definition of "telecommunications services" in the ordinance was never intended to include Internet access services and, further, that the city has discriminated against Comcast by treating it differently from all other Internet access service providers in Eugene. The trial court agreed with Comcast for the most part, ruling that its broadband Internet services were not "telecommunications services" under the ordinance and, alternatively, that the city's enforcement of the ordinance against Comcast would violate the federal Internet Tax Freedom Act (ITFA) and state and federal constitutional protections. For the reasons that follow, we affirm the trial court's judgment with respect to the registration fee, collection of which is barred by the ITFA, but we reverse and remand with respect to collection of the license fee.
We will reserve some discussion of the facts for a more focused treatment of particular assignments of error, but we provide the following general background to frame the issues on appeal. We take the facts from the trial court's findings, which the parties do not challenge on appeal, and we supplement them with the undisputed regulatory backdrop and procedural history of the case.
In 1991, the City of Eugene granted Comcast a nonexclusive franchise to develop, install, and operate a cable communications system in the city's rights-of-way.
In 1996, Congress passed the Telecommunications Act, which amended the Communications Act of 1934 (collectively, "the Act"). The Act imposes common-carrier duties on providers of "telecommunications service," 47 USC § 153(51),
That same year, 1996, the Eugene City Council adopted its Telecommunications Vision and Policies. As described in that document, the city envisioned a "coordinated regional information infrastructure that provides accessible and affordable high-speed connectivity for citizens, public institutions, and businesses and is constructed in a manner that best serves the public interest." The city identified, as one of its policies, that "[p]ublic inconvenience and disruption stemming from the installation, maintenance, and operation of telecommunications facilities shall be minimized and fully compensated."
The following year, in April 1997, the city council adopted the ordinance at issue in this case, Ordinance No. 20083 ("the ordinance" or "telecommunications ordinance"). The ordinance imposes two fees that are relevant here. First, the ordinance requires "operators" — i.e., those "who provide[] telecommunications services" to register with the city and pay an annual registration fee of two percent of revenues for those telecommunications services. Eugene City Code (ECC) 3.005; ECC 3.405; ECC 3.415(1). Second, the ordinance requires operators to obtain a license before locating any facility in the city right-of-way to "[c]onstruct a telecommunications facility or provide telecommunications service." ECC 3.410. Operators who are required to obtain a license must pay an annual license fee "in the amount of 7% of the licensee's gross revenues derived from telecommunications activities within the city, to compensate the City for the use of the rights-of-way." ECC 3.415(2). The license fee is separate from, and in addition to, the registration fee.
As described above, both the license fee and registration fee apply to providers of "telecommunications services." The ordinance includes the following definition of that term:
ECC 3.005.
Both before and after the ordinance was adopted, there were questions as to whether it was intended to reach Internet service providers (ISPs), which, at that point in time, were predominantly "dial-up" ISPs that depended on local telephone companies to transmit signals. During a public hearing on whether the city council should adopt the ordinance, the general manager of one of those dial-up ISPs, Eugene FreeNet, asked city council members to address whether the proposed amendments would apply to Internet service providers. Randy Kolb, who was the staff lead to the council committee that developed the ordinance, responded at the hearing by stating that Internet service providers would not be affected by the proposed fees. One of the council members then requested that the language of the ordinance be amended to make it clear that Internet service providers would not be affected by the ordinance, but no such amendments were made.
After the ordinance was adopted, a city employee prepared a "white paper" to guide the city's application of the ordinance. The white paper, which was reviewed by the city's legal counsel, stated in its first paragraph that "Internet and radio/television broadcasting are not applicable." (Emphasis in original.)
Around the same time that the City of Eugene was adopting its telecommunications ordinance, Congress was addressing the specific question of taxation of the Internet. In 1998, one year after the city adopted its telecommunications ordinance, Congress enacted the ITFA, codified in a note following 47 USC § 151. The ITFA, in oversimplified terms, does two things. First, it prevents state and local governments from imposing "taxes on Internet access, unless such tax was generally imposed and actually enforced prior to October 1, 1998." ITFA § 1101(a)(1). Second, the ITFA prohibits state and local governments from imposing "multiple or discriminatory taxes on electronic commerce." Id. at § 1101(a)(2).
In February 1999, the city's employees, including Kolb and Pam Berrian, who was the city's telecommunications and cable program manager, submitted a report to the Eugene City Council that addressed the status of the telecommunications ordinance and, in particular, mentioned the newly enacted ITFA. The report states that the subject of "Internet taxation" had been capturing attention on several fronts, but that "[t]hat issue will not be discussed here since Ordinance 20083 (the telecommunications ordinance.) is not inclusive of Internet activities."
On October 26, 1999, Comcast began providing cable modem service, a broadband Internet access service, to customers in Eugene. The technical aspects of that service will be discussed later in more detail, but Comcast essentially provides its subscribers with Internet access by delivering Internet Protocol (IP) packets to and from the Internet and by providing an associated set of services, such as assigning IP addresses. Unlike the dial-up ISPs that preceded it, which depended on transmission facilities owned by other providers (such as telephone companies) to deliver IP packets, Comcast owns its own transmission facilities — i.e., the cable lines that it used to provide cable television under its franchise agreement with the city. Beginning in 1999, when it began providing broadband Internet services, Comcast paid a five-percent fee on those services pursuant to the franchise agreement. That changed in 2002, however, as the result of a ruling by the Federal Communications Commission (FCC).
Although Comcast did not begin providing cable modem services in Eugene until 1999,
Comcast and the city entered into a new franchise agreement, effective November 2007. A few months later, the city filed its complaint in this action to collect fees based on Comcast's cable modem services. However, this time, the city was not seeking to collect under the franchise agreement, but, rather, based on the city's telecommunications ordinance. That is, the city alleged, among other things, that Comcast owed the two-percent registration fees and the seven-percent license fees under the ordinance dating back to 1999, when Comcast began providing cable modem services in Eugene.
The parties filed cross-motions for summary judgment with respect to various issues raised by the city's complaint, including whether cable modem services are within the definition of "telecommunications services" in the ordinance. That question, in turn, reduced to whether Comcast engaged in "transmission for hire" — part of the definition of "telecommunications services" — when providing cable modem services. The trial court ruled in the city's favor on that question, applying dictionary definitions of "transmission" and "for hire" to conclude that, by sending and receiving signals for remuneration, Comcast had engaged in "transmission for hire" and, consequently, had provided telecommunications services subject to the ordinance.
Alternatively, Comcast argued that, even if the ordinance were to apply to its cable modem services, then the registration and license fees are barred by the ITFA's tax moratorium and ban on discriminatory taxes; the license fees are franchise fees and therefore preempted by a provision of the federal Cable Act, 47 USC § 542(b); the franchise agreement excuses Comcast from obtaining a right-of-way and paying the license fees; and the city's selective enforcement of the ordinance violates constitutional protections against discriminatory treatment. The trial court ruled as a matter of law against Comcast on the bulk of those issues, leaving two questions for trial: (1) whether the annual registration fees had been generally collected before October 1, 1998, thereby excepting them from the moratorium on Internet taxes; and (2) whether the city, in enforcing the ordinance against Comcast but not other ISPs, had discriminated against Comcast in violation of state and federal constitutional protections.
The parties then proceeded to trial before the court on those two remaining questions. The city offered testimony by Kolb and Berrian to explain why the city had attempted to collect registration and license fees from Comcast but not other ISPs. Kolb explained that the city was not interested in "things like modems, which merely translate analog to digital," but rather was "always after the physical lines that existed in the city of Eugene and in the radio communications
Among its witnesses, Comcast called Dale Hatfield, an expert in the field of telecommunications. Hatfield explained that Internet access service is provided by using "transmission service," but that Internet access service is not itself transmission service. He used the analogy of train transportation. The "transmission facility," he testified, "would be the rail bed." The transmission service "might be the engine and flatbed cars," and the "Internet packets would be those shipping containers that go onto the flatbed." According to Hatfield, Kolb's description, by way of related analogy, of what the city intended to tax — the highway — was separate and apart from the Internet access service that rides on top of the highway.
After the parties put on their respective cases, Comcast asked the court to reconsider its summary judgment rulings in light of the development of the record at trial. Primarily, Comcast asked the court to reconsider its earlier ruling that cable modem services involved "transmission for hire" under the ordinance. Comcast argued that the court had erred in relying on the ordinary meanings of "transmission" and "for hire," because "transmission for hire" is a term of art in the telecommunications industry, as demonstrated by Hatfield's testimony.
The trial court agreed with Comcast and, over the city's objection, reconsidered its earlier interpretation of the ordinance. This time, rather than look to the ordinary meanings of the terms "transmission" and "for hire," the court looked to Hatfield's testimony and the meaning of "telecommunications" under state and federal laws. The court ultimately "adopt[ed] Mr. Hatfield's testimony and conclud[ed] that Internet access is not a transmission for hire in the telecommunications industry, and thus cable modem access is not subject to the Ordinance." The court further reasoned that "telecommunications" should mean the same thing under the ordinance as it does under state and federal laws, notwithstanding the fact that those laws use language different from the ordinance. The court explained:
Although the trial court's ruling regarding application of the ordinance was dispositive, the court nonetheless proceeded to address other issues to avoid the necessity of a remand after appeal. The court declined to reconsider its ruling that the license fee was a tax under the ITFA, but did reconsider the legality of the registration fee under that statute, concluding that it was discriminatory and therefore barred by the ITFA. As for the two issues that had been set for trial, the court ruled that the registration fee had not been generally collected from Internet access providers before October 1, 1998, and was therefore barred by the ITFA for that reason as well. Additionally, the court concluded that, for purposes of the state and federal constitutions, "Comcast has demonstrated an intentional and systematic pattern of discrimination by the City because the City has not collected the registration or license fees on Internet access revenues of other providers that are subject to the Ordinance under the City's interpretation." The court then entered a judgment in Comcast's favor that incorporated the court's letter opinion.
The city now appeals, advancing five assignments of error. Those assignments raise three general issues: whether the court erred in ruling that (1) the ordinance did not apply to Comcast's cable modem services; (2) the registration fee is barred by the ITFA; and (3) the imposition of the registration
In its first assignment of error, the city challenges the trial court's ruling that cable modem services are not "telecommunications services" within the meaning of the ordinance. In the city's view, the trial court was swayed by two sources — Hatfield's testimony and the definitions of "telecommunications" under state and federal statutes — that have little to no bearing on the meaning of the city's ordinance. For the reasons that follow, we agree with the city.
Our aim in construing a local ordinance is the same as when construing a statute: to discern the intent of the body that promulgated the law. Thus, we follow the same method that we ordinarily employ to determine the meaning of a statute, examining the text, context, and helpful legislative history of the provision in dispute, and, if necessary, turning to maxims of construction. See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (setting out the method for statutory interpretation); Lincoln Loan Co. v. City of Portland, 317 Or. 192, 199, 855 P.2d 151 (1993) (applying statutory construction template to a municipal ordinance); Comcast of Oregon II, Inc. v. City of Eugene, 211 Or.App. 573, 584, 155 P.3d 99 (2007), aff'd on other grounds, 346 Or. 238, 209 P.3d 800 (2009) (examining the text of the Eugene City Code by the same method prescribed for statutory interpretation).
The starting point, then, is the text of the disputed provision, ECC 3.005, which sets forth the definition of "telecommunications services." That definition, once again, states:
The parties agree that we should focus on the first four words of the definition — "the transmission for hire" — but from there, their approaches diverge. Whereas the city urges us to look at the plain meaning of those words, Comcast argues that the trial court correctly understood "transmission for hire" as a term of art in the telecommunications industry.
Generally, when an enacting body like a city council has not defined a term used in its law, we assume that the body used words consistently with their ordinary meanings. See Zimmerman v. Allstate Property and Casualty Ins., 354 Or. 271, 279-80, 311 P.3d 497 (2013) (describing that rule in the context of statutory interpretation). However, if "the term has acquired a specialized meaning in a particular industry or profession," we assume that the enacting body "used the term consistently with that specialized meaning." Id. at 280, 311 P.3d 497. Thus, the first question before us is whether "transmission for hire" is a term that has acquired a specialized meaning in the telecommunications industry.
Because it is central to the parties' argument, we quote much of Hatfield's testimony at length. Hatfield, who had decades of experience in the telecommunications industry, was initially called upon to testify concerning "how providers of Internet access service utilize telecommunications facilities within the city of Eugene."
After Hatfield testified, Kolb testified for the city. Kolb had prepared his own version of Exhibit D42, which highlighted the local transmission facilities and dedicated high-capacity transmission facilities that were depicted on that exhibit. Kolb testified that he highlighted "the telecommunications lines, be they physical lines like fiber or copper or coaxial or radio communications, that are located within the city of Eugene." When asked why he had excluded the "so-called point-of-presence," he explained that the city was not interested "in things like modems [located at the point-of-presence], which merely translate analog to digital," but that the city was "always after the physical lines that existed in the city of Eugene and in the radio communications that were located in the city of Eugene that carried this traffic. * * * We were interested in the highway."
Comcast later re-called Hatfield to the stand, and he was asked about Kolb's diagram. The following colloquy ensued:
(Emphasis added.)
(Emphasis added.)
Hatfield explained that Comcast does not offer separate, stand-alone transmission service between the customer's premises and Comcast's point-of-presence. Rather, as a result of the FCC's 2002 declaratory ruling described above, cable modem companies can "combine the telecommunications portion, if you will, with the Internet access portion into a single offering." (Emphasis added.) He later returned to the subject of Kolb's diagram, explaining that it did not actually highlight Internet access revenues:
(Emphasis added.)
Based on the foregoing testimony, we conclude that, despite being asked about certain "industry parlance," Hatfield did not actually offer a technical or industry meaning of the terms used in the ordinance — "transmission for hire." Hatfield testified to the technical distinction in the telecommunications industry between transmission services and Internet access services and the effect of the FCC's ruling. The question for purposes of the ordinance, though, is not whether Internet access services are transmission services, or whether Comcast offers stand-alone transmission services. Rather, the question is whether Comcast's cable modem services are "transmission for hire."
Hatfield did not testify that "transmission for hire" or, for that matter, "transmission," is a term of art in the telecommunications industry. While "transmission services" might be understood to be distinct from Internet access services, Hatfield also testified that transmission of data is a necessary component of Internet access, and that cable modem services are a combined offering that transmits data over telecommunications facilities. That is, unlike some other types of ISPs, when Comcast provides cable modem services, it provides Internet access services by transmitting data, over its own cable lines, to and from the Internet.
The trial court, however, offered an alternative reason for looking beyond the ordinary meaning of "transmission for hire." The court, on reconsideration, was "persuaded to consider federal legal definitions and interpretations" of the Federal Telecommunications Act, which had excluded cable modem services from the definition of "telecommunications services." The court observed that the city's ordinance was adopted with knowledge, and in consideration, of the Act, and ruled that there was "no reason to define cable modem access as a transmission in Eugene, when federal law has determined that cable modem access is not a separate transmission."
There are, as the city identifies, two fundamental problems with that approach. First, as noted before, timing matters. The classification of cable modem services under the Act would provide relevant context for interpreting the city's ordinance only if the city could have known about it at the time the ordinance was adopted. See Holcomb v. Sunderland, 321 Or. 99, 105, 894 P.2d 457 (1995) (proper inquiry in interpreting a law focuses on what the legislature intended at the time of enactment). Although the Act itself predated the city's ordinance, it was the FCC's interpretation of that Act — and the Supreme Court's decision in Brand X, affirming the FCC's ruling — that the trial court ultimately found persuasive regarding the meaning of the city's ordinance. The FCC's interpretation of the Act vis-a-vis cable modem services, which it expressed in the declaratory ruling, was not issued until 2002, five years after the city adopted its ordinance. The Supreme Court's decision in Brand X did not issue until three years after that. Thus, the city council could not have been aware of either interpretation when crafting its own ordinance.
Second, and most important, the Act defines "telecommunications services" with language that is materially different from the definition in the city's ordinance. The Act defines "telecommunications service" as "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." 47 USC § 153(53). It then defines "telecommunications" as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." 47 USC § 153(50) (emphasis added). The ordinance, by contrast, makes no reference to whether there is change in the form or content of the information that is sent. Rather, as set out more fully above, 263 Or.App. at 127, 333 P.3d at 1058, the ordinance defines "telecommunications" broadly as "[t]he transmission for hire, of information in electromagnetic frequency, electronic or optical form, including, but not limited to, voice, video, or data, whether or not the transmission medium is owned by the provider itself, and whether or not the transmission medium is wireline or wireless." If anything, the fact that Eugene's city council was aware of (and referred to) the Telecommunications Act but employed its own definition of "telecommunications
Indeed, it was language that appears in the Telecommunications Act — and not in the city's ordinance — that ultimately drove the FCC's conclusion that cable modem services are not "telecommunications services." As relevant here, the Act creates two categories of regulated entities: telecommunications carriers and information-service providers. Telecommunications carriers are regulated as common carriers, which requires them to charge just and reasonable, nondiscriminatory rates, 47 USC §§ 201-209, design their systems so that other carriers can interconnect with their networks, id. at § 251(a)(1), and contribute to the federal "universal service" fund, id. at § 254(d). Information-service providers, on the other hand, are not subject to those common-carrier regulations.
In April 1998, the FCC issued a report to Congress regarding implementation of the Act. In that report (the "Universal Service Report"), the FCC addressed the definitions of "telecommunications service," "telecommunications," and "information service" as they relate to Internet access. In the Matter of Federal-State Joint Board on Universal Service, 13 FCC Red 11501 (1998). At that time, Internet access services were typically provided through a "dial up" connection that involved transmission of information over local telephone lines. In the Universal Service Report, the FCC assumed that ISPs generally are separate from the telecommunications companies that are transmitting the data across telephone lines, but suggested that a different model might require a different approach. The report states, in part:
13 FCC Red at 11508-59 (emphasis added). With regard to the distinction between telecommunications and information services, the report further states:
Id. at 11539-11540. Thus, shortly after the city's adoption of its telecommunications ordinance in 1997, the FCC in 1998 had indicated that ISPs generally provide information services rather than telecommunications, but
Two years later, in AT & T Corp. v. City of Portland, 216 F.3d 871 (9th Cir.2000), the Ninth Circuit confronted the question raised but not definitively answered in the Universal Service Report: how to deal with Internet service providers who own their own transmission facilities. The court ruled that AT & T's cable modem service, unlike a "dial up" service, was providing "telecommunications services":
216 F.3d at 878 (emphasis added).
In the wake of the decision in AT & T Corp. (and conflicting decisions in other jurisdictions
Various parties petitioned for judicial review of the declaratory ruling, and the Ninth Circuit was selected as the venue for the challenge. Relying on the principle of stare decisis, the court held that its earlier conclusion in AT & T Corp. was controlling with regard to whether cable modem services were part "telecommunications service," and it vacated the FCC's ruling and remanded for reconsideration.
The Supreme Court granted certiorari and, in Brand X, reversed the Ninth Circuit. Although the Supreme Court affirmed the FCC's ruling that cable modem services are not "telecommunications services," the reasoning in Brand X actually underscores the differences between the Act and the city's ordinance. The Court ultimately upheld the FCC's ruling not based on the well understood meaning of the terms "telecommunications" or "telecommunications services," but on the basis of Chevron deference — that is, the principle that federal courts must accept an implementing agency's plausible construction of a statute, "even if the agency's reading differs from what the court believes is the best statutory interpretation." 545 U.S. at 980, 125 S.Ct. 2688. In explaining why the FCC's construction of "telecommunications services" was a reasonable one, the Court focused not on whether cable modem services were telecommunications; indeed, the FCC "conceded that, like all information-service providers, cable companies use `telecommunications' to provide consumers with Internet service; cable companies provide such service via the high-speed wire that transmits signals to and from an end user's computer." 545 U.S. at 988, 125 S.Ct. 2688. Rather, the case turned on whether cable modem services providers are "offering" those underlying telecommunications within the meaning of the Act. See 47 USC § 153(53) (defining "telecommunications services" as the "offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used").
The Court held that, consistent with the FCC's conclusion, "`offering' can reasonably be read to mean a `stand-alone' offering of telecommunications, i.e., an offered service that, from the user's perspective, transmits messages unadulterated by computer processing." Id. at 989, 125 S.Ct. 2688. The Court explained:
Id. at 990-91, 125 S.Ct. 2688 (emphasis added).
What that regulatory history demonstrates is that Brand X and the FCC's declaratory ruling not only post-dated the adoption of the city's ordinance, but they turned on ambiguous language in the Act that appears nowhere in the city's ordinance. For that reason, we conclude that the trial court erred when, on reconsideration, it relied on the Act, the FCC's declaratory ruling, and Brand X to interpret the city's ordinance.
In our view, the trial court's original interpretation of the ordinance at the summary judgment stage was the correct one. There was no basis to depart from the ordinary meaning of the terms used in the ordinance. The word "transmission," as used in this context, means "an act, process, or instance of transmitting." Webster's Third New Int'l Dictionary 2429 (unabridged ed 2002). "Transmit," in turn, means to "send out a signal either by radio waves or over a wire line." Id. There is no dispute that Comcast transmits data when it provides cable modem services.
Furthermore, Comcast transmits data "for hire" as part of its cable modem services, under the common meaning of those words. We have observed that, "[i]n common usage, `for hire' means `available or offered for rent.' Webster's * * * at 892; see also id. at 1072 (defining `hire' and describing the phrase `for hire' to mean `available for use or service in return for payment')." Beaver Creek Coop. Telephone Co. v. PUC, 182 Or.App. 559, 571, 50 P.3d 1231 (2002). In Beaver Creek Coop. Telephone Co., we explained that, "as a matter of common usage, a cooperative is providing telecommunication service on a `for-hire basis' if it provides those services in exchange for payment." Id. Here, Comcast provides its cable modem services, necessarily including transmission of electronic information, in exchange for subscriber fees. Thus, common usage suggests that Comcast's cable modem services are "transmission for hire" of electronic data within the ordinary meaning of those words.
The surrounding text provides additional support for a broader, plain-meaning approach to the term "transmission for hire." The term "transmission for hire" appears in the first sentence of the definition of "[t]elecommunications services"; the second sentence of the definition provides that "[t]elecommunications service includes all forms of telephone services and voice, data and video transport" and then enumerates specific exceptions to that definition. (Emphasis added.) Thus, the structure of the definition of "telecommunications services" suggests that "transmission for hire" includes all forms of data transport — including transport as part
The broader context of the ordinance likewise suggests that the city intended the ordinance to apply to any transmission of data for which the owner of the transmission facility is being paid. Section 6 of the ordinance adopts attached findings "in support of this Ordinance." Those findings include the following:
In light of the purpose of the ordinance to compensate the public for private commercial use of the city's rights-of-way, we see no basis for treating "transmission for hire" more narrowly simply because the operator is providing combined services; the operator is still using the public right-of-way for its private benefit.
Text and context notwithstanding, Comcast urges us to consider a recurring feature of the adoption history of the amendment — namely, assurances from the city that the ordinance was not intended to cover ISPs. Although Kolb and others repeatedly stated that the ordinance did not affect ISPs, the statements must be considered in historical context. Cable modem services did not exist in Eugene at that time, and Internet access was generally provided by traditional "dial-ups," whereby the transmission facilities were not owned by the ISP. Viewed in light of the prevalent technology in Eugene when the city drafted its ordinance, contemporaneous statements about ISPs provide little evidence that the city council intended to narrow the ordinary meaning of "transmission for hire" in a way that would exclude combined offerings of data transport and Internet access services.
Thus, we conclude that the best evidence of the city's intent is the text of the ordinance itself. In its summary judgment ruling, the trial court correctly interpreted the ordinance to apply, based on the plain meaning of the words, to Comcast's cable modem services. It was error for the trial court, on reconsideration, to rule otherwise based on Hatfield's testimony and the FCC's interpretation of the Telecommunications Act.
Throughout the litigation, Comcast has argued that, even if its cable modem services are "telecommunications services" under the city's ordinance, the ITFA precludes the city from imposing the license and registration fees on Internet services revenue. The trial court agreed in part with Comcast, concluding that the registration fees were precluded but that the license fees were not a tax for purposes of the ITFA. We address each of those rulings in turn.
The ITFA, which is summarized above, imposes a moratorium on certain state and local taxes related to the Internet. Section 1101(a) provides:
The term "tax" is defined in the ITFA to include "any charge imposed by any governmental entity for the purpose of generating revenues for governmental purposes, and is not a fee imposed for a specific privilege, service, or benefit conferred." ITFA § 1104(8)(i) (emphasis added). The trial court reasoned that the license fee — that is, the seven-percent fee that must be paid "as compensation for use of right-of-way," ECC 3.415(2) — is a fee imposed for a specific benefit and therefore not a "tax" for purposes of the ITFA. We agree with the trial court's reasoning and reject Comcast's cross-assignment of error on that issue without further discussion. The ITFA does not bar the city's license fee, which is a fee imposed in exchange for using the city's right-of-way to provide a telecommunications service.
The two-percent registration fee, however, is a tax under the ITFA. (Indeed, throughout its brief, the city refers to the registration fee as the "business tax.") The trial court ruled that the tax is barred by the ITFA because it (1) is "discriminatory" and (2) even if not discriminatory, is a tax on Internet access that had not been generally imposed and actually enforced prior to October 1, 1998. We agree with the trial court's ruling in that latter respect and therefore do not address whether the tax is also discriminatory under the ITFA.
The ITFA expressly defines when a tax on Internet access has been "generally imposed and actually enforced." Section 1101(d) provides:
In ruling on the parties' summary judgment motions, the trial court concluded that the city had "no rule interpreting and applying the Ordinance to apply to Internet access services," and that paragraph (1) of the statute was therefore inapplicable. The court concluded that questions of fact precluded summary judgment with regard to paragraph (2), so the parties proceeded to trial on whether the city had "generally collected" taxes for Internet access. Following trial, the court ruled that the city had failed to carry its burden of demonstrating that it generally collected taxes for Internet access.
On appeal, the city confines its argument to paragraph (1) of the statute, arguing that Comcast had a "reasonable opportunity to know" of the taxes on its cable modem services by virtue of the ordinance itself, as well as the rules promulgated under the ordinance. According to the city,
The city understates the "public proclamation" that the ITFA requires. It is not enough that the language of its ordinance, or even its rules, might be broad enough to encompass Internet access services. Rather, under the ITFA, a "rule or public proclamation" must give the provider of Internet access a reasonable opportunity to know that the "agency has interpreted and applied such tax to Internet access services." ITFA § 1101(d)(1) (emphasis added). The city cannot point to any public proclamation that, as of October 1, 1998, provided notice that the city "interpreted and applied" its tax to Internet access services.
In fact, as we explained earlier when discussing the legislative history of the ordinance, the city repeatedly said the opposite: that the ordinance did not apply to Internet access services. At a public hearing on the ordinance, Kolb stated that Internet service providers would not be affected by the proposed fees. The city's "white paper," which it generated shortly after the ordinance was enacted, stated in its first paragraph that "Internet and radio/television broadcasting are not applicable." Although we did not find those statements to be helpful indicators of the city's legislative intent with respect to Comcast's cable modem services, a type of Internet access services that did not exist in Eugene when the ordinance was enacted, see 263 Or.App. at 1040-41, 333 P.3d at 1065, the city's actions and pronouncements surrounding the adoption of the ordinance are flatly inconsistent with its suggestion that it had "interpreted and applied" its registration fee to Internet access services, let alone publicly communicated that to Internet access services providers.
For that reason, we conclude that the trial court's alternative ruling regarding the registration fee was correct. The fee is a tax on Internet access that was not generally imposed and actually enforced prior to October 1, 1998. Accordingly, the tax is barred by the ITFA.
Having concluded that the registration fee is barred, we turn to the question whether the city has selectively enforced the license fee in violation of state and federal constitutional protections. Under Article I, section 32, "all taxation shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax." Thus, "[t]he taxing authorities may not single out one taxpayer for discriminatory, or selective, enforcement of a tax law that should apply equally to all similarly situated taxpayers." Penn Phillips Lands v. Tax Com., 247 Or. 380, 385-86, 430 P.2d 349 (1967). The Equal Protection Clause provides similar protection, making it unconstitutional for a state to "deny to any person within its jurisdiction the equal protection of the laws." Oregon courts have employed the same analysis under Article I, section 32, and the Equal Protection Clause. See Kane v. Tri-Co. Metro. Transp. Dist., 65 Or.App. 55, 59, 670 P.2d 178 (1983), rev. den., 296 Or. 411, 675 P.2d 493 (1984) (citing, among other cases, Jarvill v. City of Eugene, 289 Or. 157, 182-84, 613 P.2d 1 (1980)).
To prove a violation of Article I, section 32, a taxpayer must "demonstrate an intentional and systematic pattern of discrimination." Pacificorp Power Marketing v. Dept. of Rev., 340 Or. 204, 219, 131 P.3d 725 (2006). Proof of an error in judgment on the part of the taxing authority is not sufficient to show intentional discrimination; rather, "[t]he required element has been characterized
The trial court concluded that, although the license fee was not a tax for purposes of the ITFA, it is a tax for purposes of state and federal constitutional protections. The court then concluded that the city's enforcement of the tax violated Article I, section 32, and the Equal Protection Clause because "it attempts to exact a fee only from Comcast and not from similarly-situated providers of Internet access service within its class."
On appeal, the city argues that the trial court looked to the wrong class of providers when evaluating the city's enforcement of the license fee. According to the city, it did not enforce the license fee against dial-up ISPs because those providers do not "own or control, much less locate, facilities in the City's rights-of-way." When compared to the appropriate class — the registered providers who were transmitting data with telecommunications facilities in the city's rights-of-way — Comcast proved shortcomings in the city's collection of the license fee as to only two providers, Qwest Corporation and ELI, which the city contends is insufficient to establish an intentional and systematic pattern of discrimination.
Comcast responds that the city did not collect taxes from at least 34 Internet access service providers who were also subject to the license fee, because even those who do not locate facilities in the city's right-of-way are subject to the license fee as "resellers" of telecommunications services. ECC 3.410(4) provides:
(Emphasis added.) The ordinance defines a "reseller" as "[a]ny person that provides telecommunications services using a telecommunications facility for which service a separate charge is made, where that person does not own, lease, control or manage the telecommunications facility used to provide the service." (Emphasis added.) Comcast reasons that "there is undisputed evidence that dial-up ISPs do pay `separate charges' for telecommunications facilities" and, therefore, "all of the [Internet access service] providers the City calls `non-facilities-based' qualify as resellers and owe license fees."
The city replies that Comcast misunderstands the meaning of "reseller," and that the "separate charge" for services refers to a separate charge made by the reseller, not a separate charge imposed on the reseller. We agree with the city. As a matter of text and context, the phrase "for which service a separate charge is made" refers to a separate charge by the reseller. Textually, "for which service" plainly refers back to the telecommunications services provided by the reseller. Indeed, it is not the original purchase but rather the separate charge to a customer — the second sale — that makes a person a reseller. As a matter of context, ECC 3.410(4) refers to payments made by a reseller as "the amount of compensation paid by the reseller to the owner or manager of facilities" rather than a "charge."
We further agree with the city that Comcast, who has the burden of demonstrating intentional discrimination, Freightliner Corp., 275 Or. at 19, 549 P.2d 662, failed to prove that dial-up ISPs separately charged their customers for transmission services
In summary, we hold that the trial court erred when, on reconsideration, it interpreted the term "transmission for hire" in the city's ordinance as a term of art in the telecommunications industry; under the plain meaning of the words used in the ordinance, Comcast's cable modem service is the transmission for hire of data, thereby subjecting Comcast to the registration fee and license fee. However, the trial court correctly ruled that the ITFA bars enforcement of the registration fee because that fee is a tax on Internet access that was not generally imposed and actually enforced prior to October 1, 1998. Accordingly, we affirm the trial court's judgment as to the registration fee.
The trial court correctly ruled that the license fee is not a tax under the ITFA, but erred in concluding that the city's enforcement of the license fee was unconstitutional under Article I, section 32, and the Equal Protection Clause. Comcast's proof was not, on this record, enough to demonstrate the "intentional and systematic pattern of discrimination" that is necessary under those constitutional provisions. Accordingly, we reverse and remand the judgment in regard to the city's efforts to collect the license fee.
Reversed in part and remanded.
