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Kay-Decker v. Iowa State Bd. of Tax Review

Supreme Court of Iowa

December 19, 2014

COURTNEY M. KAY-DECKER, Director, Iowa Department of Revenue, Appellant,

Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge. The director of the department of revenue appeals a district court ruling affirming a decision of the board of tax review that a company providing voice over internet protocol telephone service was not subject to central assessment for property tax purposes.

Thomas J. Miller, Attorney General, Donald D. Stanley Jr., Special Assistant Attorney General, and James D. Miller, Assistant Attorney General, for appellant.

Bryan S. Witherwax of Witherwax Law, P.C., West Des Moines, for appellee Iowa State Board of Tax Review.

Chérie R. Kiser of Cahill Gordon & Reindel, LLP, Washington, D.C., and Christopher E. James of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellee Cable One, Inc.

MANSFIELD, Justice. All justices concur except Zager, J., who takes no part.


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This administrative review proceeding requires us to decide whether a company providing Voice over Internet Protocol (VoIP) service on cable wires in Iowa is subject to central assessment as a " telephone company operating a line in this state" or, otherwise stated, a company " that . . . operates . . . any . . . telephone line." Iowa Code § § 433.1, .12 (2007). In making this determination, we consider both the language of the statute and how it has been historically interpreted. Based on that review, we conclude that wiring installed originally for cable television purposes but now also used to provide VoIP service is, indeed, a " telephone line." Therefore, the company operating these lines is subject to central assessment for property tax purposes as a telephone company. We also reject the company's alternative arguments that the primary use test prevents it from being assessed as an operator

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of telephone lines and that federal law preempts state taxation of VoIP providers as telephone companies. For these reasons, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

Cable One, Inc. is an Arizona-based company operating in nineteen states, including Iowa. In the Sioux City area, it offers cable television, internet access, and VoIP, the subject of the present dispute.

VoIP is a service that enables two-way voice communications over a broadband Internet connection. Cable One's VoIP service is " fixed," meaning, as with a traditional landline, the customer must make the call from a telephone permanently located in his or her residence. This is in contrast to " nomadic" VoIP, in which the customer is free to make the call from any location, much like a cellular telephone.

With both Cable One's VoIP and traditional landline telephone service, the customer dials a seven- or ten-digit phone number from his or her home telephone and is connected to a person on the receiving end. Both VoIP and traditional phone service offer features such as voicemail, caller ID, call waiting, call transfer, call blocking, and conference calling. Cable One's VoIP service is " interconnected," meaning its customers can send and receive calls to customers of other telephone companies, not just to and from other Cable One subscribers.

The difference between Cable One's VoIP and traditional phone service lies in the manner by which the voice signal is initially transmitted. With traditional telephone service, the voice call travels from the customer's phone to the telephone company's central office via a closed circuit of copper wire lines. More recently, fiber optic cables have been replacing these traditional copper cables. At the central office, the company has a switch to connect the caller to the public switched telephone network (PSTN) (unless the call is merely going to another customer served by the same central office).

Traditional telephone service is provided by a variety of carriers. Traditional telephone companies frequently " hand off" calls to other providers so they can reach their final destination. Traditional telephone service also can involve transmissions over wireless microwave systems, in addition to copper wire and fiber optic cable.

With VoIP, Cable One utilizes its combination of fiber and coaxial cable, the same system over which its cable television and internet services are deployed, to provide the first leg of its telephone service.[1] Thus, a caller places a call from his or her residence using his or her preexisting corded or cordless telephone. An embedded multimedia terminal adaptor (EMTA) unit then translates the voice communication into the data format necessary to transmit the signal over Cable One's network. The call proceeds in data packets along the coaxial cable that runs into and out of the customer's home. It continues on coaxial cable until it gets to a " node," whereupon it travels on fiber optic cable until it reaches a " headend," a station owned by Cable One. From the headend, Cable One can transmit the call directly to another Cable One customer in the Sioux

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City area over its hybrid fiber--coaxial network.

However, if the caller is attempting to reach someone who is not a Cable One telephone customer in the Sioux City area, the data packets are transferred to a third-party company, Level 3, that translates them into a different format so they can be sent over the PSTN. Thereafter, the voice signals proceed over the PSTN in the same manner as other telephone calls.

A Cable One customer can also receive a call originating from outside Cable One's Sioux City network. In that case, the system works in reverse with the outside caller placing the call with his or her service-provider that transmits the call over the PSTN, ending with Level 3 transmitting the signal to Cable One for conversion and delivery to its customer via the hybrid fiber-coaxial cable network.

VoIP is complementary to preexisting telephone service because it permits companies like Cable One to expand access to the PSTN without having to install dedicated copper wire or fiber optic connections. Fixed VoIP of the type Cable One offers is generally of high quality due to the fact its calls are transmitted over physical lines just like traditional landline calls. In contrast, wireless providers that transmit signals via satellite frequently experience lower call quality than servicers using wired connections.

In mid-2006, Cable One began offering VoIP service to its residential customers in the Sioux City area, including parts of Plymouth and Woodbury Counties. It provided a brochure to its subscribers entitled " Your New Cable ONE Phone Service." This stated that Cable One's VoIP service would operate in a similar manner to landline services, with the same processes for dialing numbers, operating caller ID, enabling three-way calling, and receiving voicemails. A new subscriber of Cable One's VoIP service would be able to transfer her or his existing home telephone number to the new Cable One service and could purchase Cable One's VoIP without also buying broadband internet or cable television services.

The Iowa Department of Revenue became aware of Cable One's VoIP operations and, on November 12, 2008, issued a notice of assessment based on its authority to tax telephone property under Iowa Code chapter 433. See Iowa Code § § 433.1, .4. The Department determined that Cable One should be assessed based on the January 1, 2008 value of its telephone operating property in the state, which it determined to be $671,000. Cable One appealed the notice of assessment to the Iowa State Board of Tax Review, claiming it was not a telephone company subject to taxation under chapter 433 because VoIP is not the equivalent of telephone service.

In October of 2009, the Department sent Cable One another notice of assessment under chapter 433 for the ensuing tax year. This time it valued Cable One's telephone operating property at $830,000 as of January 1, 2009. Cable One again appealed the assessment and the appeals were combined and transferred to an administrative law judge in the Iowa Department of Inspections and Appeals for a contested case hearing.

Iowa Code chapter 433 is entitled " Telegraph and Telephone Companies Tax." It reads, in relevant part, as follows:

433.1 Statement required.

Every telegraph and telephone company operating a line in this state shall, on or before the first day of May in each year, furnish to the director of revenue a statement verified by its president or secretary showing:

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1. The total number of miles owned, operated, or leased within the state, with a separate showing of the number leased.
2. The average number of poles per mile, and the whole number of poles on its lines in this state.
3. The total number of miles in each separate line or division thereof, also the average number of separate wires thereon.
. . . .
6. The gross receipts and operating expenses of said company for the year ending December 31 next preceding, on business originating and terminating in this state.
. . . .
8. The total capital stock of ...

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