Loading...
HomeMy WebLinkAboutItem 06 Telecommunications Business License Tax AGENDA ITEM SUMMARY Meeting Date: 2/18/2014 Meeting Type: Regular Meeting Staff Contact/Dept.: Len Goodwin, DPW Staff Phone No: x3685 Estimated Time: 15 minutes S P R I N G F I E L D C I T Y C O U N C I L Council Goals: Provide Financially Responsible and Innovative Government Services ITEM TITLE: TELECOMMUNICATIONS BUSINESS LICENSE TAX ACTION REQUESTED: Conduct a first reading and public hearing on AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 4.600 “DEFINITIONS” TO ADD/AMEND DEFINITIONS TO TELECOMMUNICATION BUSINESS LICENSE TAX, AND AMENDING SECTION 4.706 “FEES FOR USE OF PUBLIC WAYS”, SECTION 4.712 “REGULATORY FEES AND COMPENSATION NOT A TAX”, SECTION 4.714 “PENALTIES AND INTEREST FOR LATE PAYMENT”, AND SECTION 4.716 “AUDITS”, AND ADOPTING A SEVERABILITY CLAUSE. ISSUE STATEMENT: Should the City implement a telecommunication business license tax on all telecommunications companies using rights of way and operating within the city limits by changing Springfield Municipal Code 4.600 Definitions and 4.706 Fee for Use of Public Ways? ATTACHMENTS: 1: Council Briefing Memorandum from February 10, 2014 2: Proposed Ordinance DISCUSSION/ FINANCIAL IMPACT: Currently, under Springfield City Code, a telecommunications company with facilities in the City’s right-of-way pays a fee for use of the right-of-way. Other cities charge utilities a franchise fee or a business license fee. Incumbent Local Exchange Carriers (ILEC), companies leftover from the break-up of the Bell monopoly in the 1980s, are taxed differently from other utilities creating a disparity in the market. Under State statute, cities are limited to charging ILECs 7% on the revenue from local exchange service for use of a city’s right of way. “Local Exchange Service” revenue is only that revenue that results from the dial tone access charge, approximately $12.60 per month. Revenue generated from the other telecommunication services—such as cellular backhaul, voicemail, call forwarding, caller identification, call waiting, and other modern amenities—are not calculated as a part of the 7% fee. In contrast to ILEC, other utilities (such as Comcast) are charged a fee of 5% of gross revenue—essentially all of the revenue the company earns. CenturyLink, the local ILEC, pays the City seven percent of the local exchange charge (that charge is about $12.60 a month per customer). On the other hand, Comcast, CenturyLink’s principal competitor in Springfield, pays based on five percent of the total bill (about $65 per month per customer). At a work session on February 10, 2014, staff reviewed an alternative approach which would change the right-of-way user fee from a fee for using the right-of-way to a tax on doing business. The tax would not be subject to the State limitation. No change is proposed for the rate—currently five percent of gross revenue. M E M O R A N D U M City of Springfield Date: 2/10/2014 COUNCIL BRIEFING MEMORANDUM To: Gino Grimaldi, City Manager From: Len Goodwin, DPW Director Subject: TELECOMMUNICATIONS BUSINESS LICENSE TAX ISSUE: Should the City implement a telecommunication business license tax on all telecommunications companies using rights of way and operating within the city limits by changing Springfield Municipal Code 4.600 Definitions and 4.706 Fee for Use of Public Ways? COUNCIL GOALS/ MANDATE: Provide Financially Responsible and Innovative Government Services BACKGROUND: Currently, under Springfield City Code, a telecommunications company with facilities in the City’s right-of-way pays a fee for use of the right-of-way. Other cities charge utilities a fee a franchise fee or a business license tax. Incumbent Local Exchange Carriers (ILEC), companies leftover from the break-up of the Bell monopoly in the 1980s, are taxed differently from other utilities creating a disparity in the market. Under State statute, cities are limited to charging ILECs 7% on the revenue from local exchange service for use of a city’s right of way. “Local Exchange Service” revenue is only that revenue that results from the dial tone access charge, approximately $12.60 per month. Revenue generated from the other telecommunication services—such as cellular backhaul, voicemail, call forwarding, caller identification, call waiting, and other modern amenities—is not calculated as a part of the 7% fee. In contrast to ILEC, other utilities (such as Comcast) are charged a fee of 5% of gross revenue—essentially all of the revenue the company earns. The distinct fees resulted when the 1989 Legislative Assembly passed ORS 221.515 and preempted local governments’ abilities to set fees for the use of the right-of-way for ILECs. Charges on other providers, however, were not limited. Ultimately, this creates an anomaly and has significant impact on both the customers and the cities. The inconsistent fees results in consumers’ decisions based on based on government charges, rather than on the basis of the services or charges generated by the carrier. One potential, and undesirable, effect of the anomalous treatment of the telephone providers is that it injects government revenue and tax policy into a customer’s decision about telephone service. Customers should be making their decision on choosing a telephone provider on the basis of the services and fees charged by the carrier, not on the basis of what government charges the carrier is obligated to pay. As much as possible, those fees and charges should be consistent, regardless of carrier. While there are Attachment 1 - Page 1 obvious cases where there should be differences, for example between carriers who use public rights of way and those who do not, these differences should be based on the nature of the business, not on legislative policy decisions. In addition to the sound business reasons for making local fees transparent, there is a risk of litigation should the change not be made. Section 253(c) of the 1996 Act provides that “Nothing in this section affects the authority of a State or local government to …require fair and reasonable compensation form telecommunications providers, on a competitively neutral and non-discriminatory basis, for use of public rights-of-way on a non-discriminatory basis…” Although no court has held that the preemption by State law creates an inconsistency with the federal requirement, the allegation has been made in a number of cases and may, in some future case, be found meritorious .In 2013, the Oregon Legislative Assembly considered a House Bill developed by Comcast—the largest non-ILEC phone company— that proposed changes to resolve the distinction between utilities. Under House Bill 2455-7 preemption would be eliminated, resulting in every phone company charged on the same revenue formula basis. The Bill, however, did not succeed despite the support from cities and the League of Oregon Cities. During that same period, the City of Portland developed a local solution to address the problem. Portland converted its existing right-of-way use fee to an approach that is not subject to preemption. Portland revised its code to convert the existing right-of-way use fee to a business license tax imposed on companies that use the public right-of-way to provide telephone service. Like Springfield, the right-of-way use fee was five percent— that rate was not changed when the charge was converted from a fee to a tax. However, the ability to capture more of the ILECs’ revenue, no longer limited to only local access service revenue, resulted in a large increase in revenue for the City of Portland. Similarly changes to Springfield’s Code could produce significant revenue for the General Fund. Staff hesitates to project an estimate at this time as CenturyLink has declined to give the City information on its gross revenues. The proposed changes would benefit the consumer by removing the element of distinct public fees and taxes from the decision on which telephone service to select. Even though the changes would result in a small impact on individual customers the change would make it possible for consumers to make a choice based on the quality and nature of a company’s service. The tax would be at the same rate as presently in the Municipal Code – 5 percent of gross revenue. While CenturyLink challenged the Portland ordinance in Circuit Court last year, the Court granted summary judgment to Portland. The case is now pending before the Oregon Court of Appeals. There is no timetable for a decision but we believe that the Circuit Court opinion is sound and will likely be sustained on appeal. Additionally, Comcast intends to introduce a new bill during the 2014 Legislative Assembly. Unfortunately, however, Comcast is now working with the incumbent providers and is likely to propose a measure that will severely undercut local governments—potentially reducing the rates that all telecommunications companies pay. Therefore, at this time, staff recommends that the City move ahead with a local ordinance to follow the Portland model. If the ordinance is adopted before the Legislature acts, we believe that Springfield’s action will not be preempted. Attachment 1 - Page 2 RECOMMENDED ACTION: Staff recommends changing Springfield Municipal Code sections 4.600 Definitions and 4.706 Fee for Use of Public Ways to establish a Telecommunication Business License Tax which will replace the Utility License Fee currently used at the City. If Council concurs, they may direct staff to present an ordinance in the form of the attached draft for a first reading and public hearing at the next available opportunity. Attachment 1 - Page 3 ORDINANCE NO. ___________ AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 4.600 “DEFINITIONS” TO ADD/AMEND DEFINITIONS TO TELECOMMUNICATION BUSINESS LICENSE TAX, AND AMENDING SECTION 4.706 “FEES FOR USE OF PUBLIC WAYS”, SECTION 4.712 “REGULATORY FEES AND COMPENSATION NOT A TAX”, SECTION 4.714 “PENALTIES AND INTEREST FOR LATE PAYMENT”, AND SECTION 4.716 “AUDITS”, AND ADOPTING A SEVERABILITY CLAUSE WHEREAS, telecommunication companies who have facilities in the City’s right-of-way are required to pay a fee to the City for its use of its right-of-way; WHEREAS, some cities charge such a fee as a franchise fee, while in other cities it may be in the form of a business license or, as the City does, as a right-of-way use fee; WHEREAS, an incumbent local exchange carriers (ILEC) is the default service provider for a local telephone service and state statute limits the City to charging 7% on the revenue from the local exchange service for use of the City’s right-of-way; WHEREAS, local exchange revenue is the revenue from the dial tone access charge on a bill and there is no limit on what cities may charge competitive local exchange carriers (CLEC); WHEREAS, the “phone company” of yesteryear has evolved over time and today’s phone companies offer many different services did not previously exist including cell backhaul, voice mail, call forwarding, caller identification, call waiting, and others; and WHEREAS, the City now wishes to establish a method of charging for the true use of the right-of-way. NOW, THEREFORE, the City of Springfield ordains as follows: Section 1. Section 4.600 “Definitions” of the Springfield Municipal Code is hereby amended to include the following two additional definitions: “Internet Service. Internet Service means a service that includes computer processing applications, provides the user with additional or restructured information, or permits the user to interact with stored information through the internet or a proprietary subscriber network. ‘Internet service’ includes provision of internet electronic mail, access to the internet for information retrieval, and hosting of information for retrieval over the internet or the graphical subnetwork called the world wide web. ‘Internet‘ means the international computer network of both Attachment 2 - Page 1 federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork called the world wide web.” “Public Safety Radio System. Public safety radio system means a radio system whose licensing and use of radio transmitters by state and local government and non-government entities is regulated by the Federal Communications Commission as engaged in public safety activities.” Section 2. Section 4.600 “Definitions” “Telecommunications service” of the Springfield Municipal Code is hereby amended to read as follows: “Telecommunications service. The providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming or any other information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium and without regard to the nature of the transmission protocol employed, but does not include: (1) cable television services; (2) private telecommunications network services; (3) over-the-air radio or television broadcasting to the public-at- large from facilities licensed by the Federal Communications Commission or any successor thereto; (4) direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act of 1996; (5) services provided solely for the purpose of providing internet service to the consumer; (6) public safety radio systems; (7) mobile service within the meaning of 47 U.S.C. § 153(33) (2012); and (8) services to devices exclusively utilizing electromagnetic spectrum unlicensed by the Federal Communications Commission.” Section 3. Section 4.706 of the Springfield Municipal Code is hereby repealed and rewritten to read as follows: “(1) (a) All persons providing utility services shall pay to the City of Springfield a tax in the amount of five percent of gross revenues, as herein defined, subject to limitations in other state or federal laws. (b) All utilities owned and operated by the City of Springfield, except a municipal utility as defined in ORS 757.005(1), shall pay to the City of Springfield a utility tax fixed by resolution of the council. Attachment 2 - Page 2 (c) All persons subject to the tax imposed by subsection (a) who are parties to a franchise or public way use agreement shall be entitled to a credit against the tax due under subsection 9a) in the amount of the payments made pursuant to such franchise or public way use agreement. (2) This fee shall be in addition, and not in lieu of any taxes, fees or charges provided under this Municipal Code. (3) Unless otherwise agreed such tax or fee shall be paid quarterly, on or before the 45th day following the end of the calendar quarter.” Section 4. Section 4.710 “Compensation for City Property” of the Springfield Municipal Code is hereby amended to read as follows: “If the right is granted, by lease, license, franchise or other manner, to use and occupy city property other than the public ways for the installation of facilities, the compensation to be paid shall be fixed by the city and shall be separate and distinct from any taxes or fees imposed in sections 4.702 through 4.708.” Section 5. Repeal Section 4.712 “Regulatory Fees and Compensation Not a Tax” from the Springfield Municipal Code. Section 6. Section 4.714 “Penalties and Interest for Late Payment” of the Springfield Municipal Code is hereby amended to read as follows: “If any tax or fee provided for herein shall not be timely paid, a penalty in the amount of 10 percent of such fee shall be assessed and due as of the date the underlying tax or fee was due. Interest on taxes, fees and penalties shall accrue at the rate of one and one-half percent per month, commencing with the 15th day after the tax, fee or penalty shall be due.” Section 7. Section 4.716 “Audits” for the Springfield Municipal Code is hereby amended to read as follows: “The city may examine the books and records of the utility to verify the amounts due under a franchise, public way use agreement or fee or tax as provided in section 4.706. The utility shall either maintain such books and records at a location within the state of Oregon or, in the alternative, shall provide them to the city when requested, at no expense to the city. In the event such examination discloses an underpayment in the amount due to the city of more than five percent, the city may impose a penalty of 10 percent of the additional amount due, plus costs of the audit, and interest as provided herein from the original date due.” Attachment 2 - Page 3 Section 8. Severability Clause. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is, for any reason, held invalid or unconstitutional by a court of competent jurisdiction, such portion shall be deemed a separate, distinct and individual provision and such holding shall not affect the validity of the remaining portion hereof. Section 9. Effective Date of Ordinance. This Ordinance shall take effect 30 days after its adoption by the Council and approval by the Mayor. ADOPTED by the Common Council of the City of Springfield this ___ day of _________, 2014, by a vote of _____ for and ____ against. APPROVED by the Mayor of the City of Springfield this ______ day of ______________, 2014. _______________________ Mayor ATTEST: __________________________ City Recorder Attachment 2 - Page 4