Lead Opinion
ON PETITION TO TRANSFER
Ameritech Indiana sought declaratory and injunctive relief to prevent the City of Gary from imposing a “requirements-based fee” on telecommunications providers using City .rights-of-way. The trial court declared the fee void as an improper tax issued beyond the City’s powers. We reverse in part, finding that the City was initially entitled to charge compensation for the private, commercial use of its real estate, until the legislature affirmatively said otherwise.
On January 6, 1998, the City of Gary enacted Ordinance Nos. 6970 & 6971, which were signed by the Mayor two days later. Ordinance No. 6970 establishes a telecommunications policy for the City and creates the Gary Access, Information, and Telecommunications Trust (“GAITT”) to, inter alia, “[e]nsure that telecommunications is available as a community resource for individuals, organizations, and businesses on an affordable basis.” The GAITT is charged with several responsibilities under Ordinance No. 6970, including the development, implementation, and collection of fees comprising fair and reasonable compensation for the commercial use of public rights-of-way.
Ordinance No. 6971 is a companion ordinance that imposes a “requirements-based fee” on all telecommunications providers using the City’s rights-of-way. The total “requirements-based fee” for 1998 was to be $20,000,000. This initial aggregate fee represented “approximately fifteen percent of the telecommunications providers’ local revenues, based on the national average revenue per capita reported by the U.S. census,” with credits for public, educational, and government access, as well as institutional access. Appellant’s Br. at 6.
Ameritech Indiana’s share of this total initial fee was $3.2 million and was determined by using what Ameritech characterizes as “an intricate scheme for apportioning the $20,000,000 charge among the various telecommunications providers in the rights-of-way, based on the number of kinds of services provided by each.” Appellant’s Br. at 7 (describing § 4 of Ord. No. 6971). Ordinance No. 6971 contemplates telecommunications providers discharging some or all of their “requirements-based fee” by furnishing in-kind telecommunications services. In future years, the total “requirements-based fee” would be calculated in one of three ways: (1) based upon an assessment of the City’s “requirements,” (2) based upon a percentage not to exceed 15% of the providers’ gross revenues, or (3) based upon a “growth factor” calculated from the providers’ telecommunications revenues multiplied by the previous year’s “requirements-based fee.”
On January 15, 1998, Arlene D. Colvin, the City’s Chief of Staff, sent a letter to Ameritech Indiana along with copies of the two ordinances, informing Ameritech that Gary intended to establish “a process for telecommunications vendors affected by the enclosed Ordinances to meet their economic obligations.” The letter also indicated that a City representative would contact the company “in February, 1998 to negotiate [its] contribution.”
Before any meeting was held, Ameritech Indiana filed a declaratory judgment action, asking that the ordinances be declared void as exceeding the scope of the City’s municipal powers. After hearing oral argument on cross-motions for summary judgment, the trial court granted summary judgment in favor of Ameritech Indiana, finding “that City of Gary Ordinances Nos. 6970 and 6971 are and have been from the time of their enactment INVALID and VOID in their entireties.” (R. at 292; Final Judgment of June 25, 1998) (emphasis in original). The City appealed.
The Court of Appeals affirmed in part and reversed in part, finding: (1) that the requirements-based fee imposed under Ordinance No. 6971 was void as an impermissible tax assessed in violation of the City’s authority under Ind.Code § 36-l-3-8(a)(4) (1993) (“Home Rule Act”); (2) that even if the requirements-based fee was not an impermissible “tax” under the Home Rule Act, it was an impermissible charge by the City as of March 13, 1998, when the Indiana Legislature amended Ind. Code § 8 — 1—2—101(b), prohibiting municipalities from receiving any form of “payment” other than the “direct, actual, and reasonably incurred management costs” for a utility’s occupation of a public right-of-way; (3) that the remaining provisions of Ordi
Discussion
In this case, the trial judge entered specific findings of fact and conclusions of law, neither of which are required nor prohibited in the summary judgment context. See Dible v. City of Lafayette,
I
We begin our analysis by looking to Indiana’s Home Rule Act. Pub.L. No. 211, 1980 Ind. Acts 1657 (codified as amended at Ind.Code §§ 36-1-3-1 to -9 (1993)). The Home Rule Act abrogated the traditional rule that local governments possessed only those powers expressly authorized by statute and declared that a local government possesses “[a]ll other powers necessary or desirable in the conduct of its affairs.” Ind.Code § 36-1-3-4(b)(2); see also City of Crown Point v. Lake County,
, Here, we are faced with deciding whether the requirements-based fee was within Gary’s broad grant of powers conferred on it by the Home Rule Act or whether the fee impermissibly impinged upon those powers reserved to the State. The reserved powers implicated in this case are: first, the “power to impose a tax,” id. § 36-l-3-8(a)(4); second, the “power to impose a service charge or user fee greater than that reasonably related to reasonable and just rates and charges for services,” id. § 36 — 1—3—8(a)(6); and third, the “power to regulate conduct that is regulated by a state agency, except as expressly granted by statute,” id. § 36-l-3-8(a)(7).
II
Among the various powers “need[ed] for the effective operation of government as to [its] local affairs,” Ind. Code § 36-1-3-2, are those labeled proprietary whereby local governments “act[ ] in a private or proprietary capacity” for the “peculiar and special advantage of its inhabitants, rather than for the good of the State at large,” Taylor v. State,
A local government’s specified power to manage the “public grounds” falling within its borders, see Ind.Code § 36-1-3-9(a), includes the unspecified power to operate in a proprietary capacity to charge fair and reasonable compensation for the private, commercial use of these public grounds, irrespective of the label placed on the compensation. See, e.g., City of St. Louis v. Western Union Tel. Co.,
A
In determining that the fee was an improper tax, the trial court found it significant that “Gary has offered no authority for the proposition that a municipality may charge rent for use of public rights of way by public utilities operating under certificates of territorial authority issued by the IURC.” (R. at 289; Concl. of Law No. 4.) As we just explained, however, the Home Rule Act abrogated the traditional rule that local governments possessed only those powers expressly authorized by statute. See Ind.Code § 36-l-3-4(a)(l)-(3) (“The rule of law that a unit has only[] powers expressly granted by statute; [ ]powers necessarily or fairly implied in or incident to powers expressly granted; and [ ]powers indispensable to the declared purposes of the unit[ ] is abrogated.”).
Simply put, the City of Gary need not have the specific statutory authorization to charge companies compensation for commercial use of its real estate to generate private profit. See id. § 36-1-3-4(b)(2) (A governmental unit has all “powers necessary or desirable in the conduct of its affairs, even though not granted by statute.”); id. § 36-l-3-4(c) (“[T]he omission of a power from [a statutory] list does not imply that unit lacks that power.”); cf. Department of Treasury,
B
The Court of Appeals invalidated the requirements-based fee as an improper tax on two independent bases with respect to the Home Rule Act. See City of Gary,
B-l
First, the Court of Appeals cites to a 50-year-old Illinois Supreme Court case for the proposition that a charge or fee assessed by the governing entity and based upon a percentage of the payor’s gross revenues is a tax and not a rental charge. City of Gary,
In Ace Rent-A-Car, the governing entity was the Indianapolis Airport Authority (“IAA”), a municipal corporation empowered with the specific
Ace Rent-A-Car first challenged the validity of the percentage-based fee as being generally inconsistent with the type of user fee approved by this Court in Evansville-Vanderburgh Airport Auth. Dist. v. Delta Air Lines, Inc.,
Ultimately, the court concluded that “the airport’s very existence provides a marketplace from which Ace Rent-A-Car derives an economic benefit,” so that a user fee “based on a percent of the rental sales of automobiles made to customers originating at the airport represents at least one fair, although imperfect, method of measuring ‘use’.” Id. at 1107-08 (relying in part on Alamo Rent-a-Car v. Sarasota-Manatee Airport Auth.,
Here, Gary rights-of-way provide a marketplace from which Ameritech derives an economic benefit, so that Gary’s fee, based in part on a percentage of the company’s gross revenues, is at least one fair, if imperfect, method of measuring Ameritech’s use of Gary rights-of-way. The revenue-based aspect of the fee does not ipso facto transform it into a tax. See id. at 1108 (“We disagree with Ace Rent-A-Car that because the fee is based on revenue it is therefore transformed into a tax.”)
Furthermore, as the Court of Appeals in Ace Rent-A-Car noted,
A tax is compulsory and not optional; it entitles the taxpayer to receive nothing in return, other than the rights of government which are enjoyed by all citizens. Ennis v. State Highway Commission (1952),231 Ind. 311 ,108 N.E.2d 687 , 693. On the other hand, a user fee is optional and represents a specific charge for the use of publicly-owned or publicly-provided facilities or services. Commonwealth Edison Co. v. Montana (1981),453 U.S. 609 , 621-22,101 S.Ct. 2946 , 2955,69 L.Ed.2d 884 , 896-97, reh’g denied,453 U.S. 927 ,102 S.Ct. 889 ,69 L.Ed.2d 1023 .
Id.; see also City of Orangeburg,
Ameritech receives considerably more “than the rights of government which are enjoyed by all citizens,” Ace Rent-A-Car;
B-2
Next, the Court of Appeals invalidated Gary’s requirements-based fee as an improper tax based on the City’s avowed purpose to use the fee revenues “to finance improvements to communications networks in the City’s schools and government buildings - the type of improvements normally funded by tax revenues.” City of Gary,
Having found that the requirements-based fee is not an impermissible tax but is instead valid compensation charged by Gary for the private, commercial use of its real estate, we find it unnecessary to consider the purpose for which the fee revenues will be used.
Having determined that the requirements-based fee is not a tax, we now address what type of fee it is.
Ill
Both parties to this appeal, as well as the trial court and Court of Appeals, were in agreement that the City of Gary’s requirements-based fee is “neither of the types of fees contemplated by” the Home Rule Act. City of Gary,
This Court previously considered the concept of a valid user fee in Evansville-Vanderburgh Airport Auth. Dist. v. Delta Air Lines, Inc.,
Users of the airport facilities differ widely in the extent of their use and ‘reasonable’ charges for use, as required by the statute, would of necessity reflect those differences. It is meaningless to say that ‘all users’ must pay the same amount of user fees, e.g., would the lessor of space for a barber shop pay thesame fee as the lessor of space for an airplane? Would the lessor of space for a restaurant pay the same user fee as a visitor to the airport? The very concept of a ‘user’ fee implies that there are different uses that can be identified and the amount of the fee relates to that use.
Id. at 467,
We find this reasoning equally applicable in this case: providers of telecommunications services and consumers of those same services differ substantially in both their method and extent of use of city-owned rights-of-way
IV
Ameritech Indiana lastly contends that “Gary’s ordinances are invalid because they impermissibly tread upon the exclusive domain of the [Indiana Utility Regulatory Commission (“IURC”) ],” which is vested with “jurisdiction to regulate all facets of service, rates and charges, and competition” concerning public utilities. Appellee’s Br. at 27 (emphasis added).
As set forth in Part I, supra, the Home Rule Act does withhold from Gary the “power to regulate conduct that is regulated by a state agency, except as expressly granted by statute.” Ind.Code § 36-1-3-8(a)(7). However, an earlier version of Indiana Code § 8-l-2-101(a) - effective when the ordinances were first enacted - provided Gary with an express grant of “powerf t]o determine by ... ordinance ... [the] terms and conditions ... upon which such public utility may be permitted to occupy the streets, highways, or other public property within such municipality.” Id.
Finally, if Ameritech Indiana finds the amount of Gary’s requirements-based fee to be unreasonable, it has the complaint process before the IURC as contemplated by the remainder of Indiana Code § 8-l-2-101(a) (1993).
V
These determinations notwithstanding,
The City of Gary emphatically argued both in its briefs and at oral argument that the 1998 amendment to Indiana Code § 8-1-2-101, adding subsection (b), only addressed “occupancy” of rights-of-way by utilities, thereby not preempting Gary’s Home Rule powers to collect compensation for the “use” of rights-of-way.
However, in looking to the plain language of the statute - always our first line of inquiry - we cannot ignore the legislature’s clear mandate that “direct, actual, and reasonably incurred management costs do not include rents, franchise fees, or any other payment by a public utility .... ” Ind.Code § 8 — 1—2—101(b) (emphasis added). See Poehlman v. Feferman,
In addition to this clear legislative prohibition against charging public utilities “any” form of payment, we also highlight the fact that both traditional and legal
Conclusion
We therefore (1) grant transfer; (2) adopt and incorporate by reference that part of the Court of Appeals’s opinion finding that (a) the requirements-based fee was an impermissible charge by the City as of March 13, 1998, when the Indiana Legislature amended Ind.Code § 8-1-2-101(b); (b) the remaining provisions of Ordinances 6970 and 6971 did not violate Ind.Code § 36-l-3-8(a)(7) as infringing on the jurisdiction of the IURC; and (c) the remaining policy provisions of Ordinances 6970 and 6971 would stand; (3) vacate the remainder of the opinion of the Court of Appeals; and (4) remand to the trial court with instructions to modify its order of June 25, 1998, in accordance with this opinion. Our decision is without prejudice to any rights Ameritech Indiana has preserved under Indiana Code § 8-l-2-101(a) (1993).
Notes
. As the United States Supreme Court observed:
[W]hen there is a permanent and exclusive appropriation of a part of the highway, is there in the nature of things anything to inhibit the public from exacting rental for the space thus occupied? Obviously not. Suppose a municipality permits one to occupy space in a public park, for the erection of a booth in which to sell fruit and other articles; who would question the right of the city to charge for the use of the ground thus occupied, or call such a charge a tax, or anything else except rental? So, in like manner, while permission to a telegraph company to occupy the streets is not technically a lease, and does not in terms create the relation of landlord and tenant, yet it is the giving of the exclusive use of real estate, for which the giver has a right to exact compensation, which is in the nature of rental.
City of St. Louis,
. Moreover, "[a]ny doubt as to the existence of a power of a unit shall be resolved in favor of its existence.” Id. § 36-l-3-3(b).
. In contrast to the City of Gary’s numerous unspecified powers as a local governing unit under the Home Rule Act, the Indianapolis Airport Authority’s powers as a municipal corporation are limited to those expressly identified in its enabling statute. See Ind. Code § 8-22-3-1 l(l)-(29) (1993).
. In Delta Air Lines, this Court addressed the validity of a $1.00 airport user fee assessed by the Airport Authority against enplaning commercial airline passengers. The Court approved the charge as a valid user fee and observed the enabling statute granted the Airport Authority the "power to make the amount of a service charge or user fee depend on the extent of the use made of the facilities.”
. As noted, infra, in Part I.C, we agree that the City of Gary is not charging a licensing fee while "exercising a regulatory power.” Ind.Code § 36 — 1—3—8(a)(5). As such, we find the reasoning contained in City of Portage v. Harrington,
. As set forth under Background, supra, Amer-itech apparently can avoid the payment of fees altogether given that the Ordinance contemplates telecommunications providers discharging some or all of their "requirements-based fee” by furnishing in-kind telecommunications services. (Ordinance No. 6971; R. at 21-22.) See also Letter from Arlene D. Colvin, City of Gary Chief of Staff, to Stephen E. Powell, Director of Local Government Relations, Ameritech Indiana 1 ("Should excess capacity [or in-kind services] be limited or unavailable, but assistance with hard wiring buildings is available through your company's resources, either would be an alternative to strictly a cash payment.”) (R. at 39.)
. We previously addressed the scope and extent of regulatory license fees as defined by Indiana Code § 36-1-3-8(5) in Schloss v. City of Indianapolis,
Indianapolis grants licenses and exacts regulation-related fees for a wide variety of business activities: it licenses the right to run massage parlors, operate taxicabs, deal in secondhand goods, and sell beverages, flowers, and foods from carts. Each type of license is granted to a number of people in anticipation of competition among them. Every person wishing to engage in a licensed business must follow certain procedures set by ordinance and pay a fee. Indiana Code § 36-1-3-8(5) applies to this type of a set fee, one assessed against numerous people in exchange for the opportunity to compete in the marketplace.
Id. at 1207 (footnote omitted) (emphasis added). The City of Gary is without authority to charge Ameritech a fee "in exchange for the opportunity to compete in the marketplace” - this would violate the Federal Telecommunications Act of 1996, 47 U.S.C. § 253(a) (Supp. II 1996) (invalidating state or local regulations that prohibit or have the effect of prohibiting the ability of any entity to provide telecommunications services). So while we agree with Ameritech's first contention that the requirements-based fee "is not related to the administrative cost of exercising any regulatory powers," Appellee’s Br. in Opposition to Petition to Transfer at 4 (emphasis added), we disagree with the company's seemingly contradictory contention that Gary "is not seeking to collect the 'requirements-based fee' in its proprietary capacity or through-any contractual powers, but instead through its regulatory powers exercised by the ordinance," id. at 6 (emphasis added).
. Subsection (6) reads that "a unit does not have ... [t]he power to impose a service charge or user fee greater than that reasonably related to reasonable and just rates and charges for services.” Ind.Code § 36 — 1—3— 8(a)(6).
. Both Ameritech and the citizens of Gary literally "use” the City’s right-of-way while engaging in the act of either providing or consuming telecommunications services.
. See infra Part IV.
. The statute provided in relevant part as follows:
Every municipal council shall have power[ t]o determine by contract, ordinance, or otherwise, the quality and character of each kind of product or service to be furnished or rendered by any public utility furnishing any product or service within said municipality and all other terms and conditions, not inconsistent with this chapter, upon which such public utility may be permitted to occupy the streets, highways, or other public property within such municipality, and such contract, ordinance, or other determination of such municipality shall be in force and prima facie reasonable....
Ind.Code § 8-l-2-101(a) (1993) (emphasis added).
This express authority to determine by ordinance the terms and conditions upon which utilities may utilize municipality property does not include the "express” authority to charge utilities compensation for their utilization of this property. But see supra Parts I & II (discussing the City of Gary's "unspecified” authority to charge compensation under the Home Rule Act). .
.Indiana Code § 8-l-2-101(a) (1993), continued as follows:
Upon complaint made by such public utility, or by any qualified complainant, as provided in section 54 of this chapter, the commission shall set a hearing, as provided in sections 54 to 67 of this chapter, and if itshall find such contract, ordinance, or other determination to be unreasonable, such contract, ordinance, or other determination shall be void.
Id. (emphasis added).
.For other situations where the IURC makes similar determinations, see, for example, Indiana Code § 8-1-2-68 (1998) (“Whenever, upon an investigation, the commission shall find any rates, tolls, charges, schedules, or joint rate or rates to be unjust, unreasonable, insufficient, or unjustly discriminatory, • or to be preferential or otherwise in violation of any of the provisions of this chapter, the commission shall determine and by order fix just and reasonable rates, tolls, charges, schedules, or joint rates to be imposed, observed, and followed in the future in lieu of those found to be unjust, unreasonable, insufficient, or unjustly discriminatory or preferential or otherwise in violation of any of the provisions of this chapter.”) (emphases added), and Indiana Code § 8 — 1—2—88.6(b) (1998) ("Access charges paid by an interexchange carrier for interconnection to local exchange facilities [ (i.e., Ameritech) ] must be reasonable as determined by the commission.’’) (emphasis added).
. As set forth under Background, supra, City of Gary Ordinance No. 6971 implemented the requirements-based fee, effective January 8, 1998. (R. at 22.)
. We disagree with Gary’s claim that the “property management powers ” it exercises over its rights-of-way as per Ind.Code § 36-1-3-9(a) (1993), see Appellant's Reply Br. at 3, are unaffected by the legislature’s clear declaration that any property "management costs " Gary seeks to recoup will “not include rents, franchise fees, or any other payment by a public utility." Ind.Code § 8 — 1—2—101 (b) (emphasis added).
. We also note that the legislature chose not to specifically define either "use” or "occupy” as those terms are used in Chapter 2. See Ind.Code § 8-1-2-1 (1998).
Concurrence Opinion
Justice, concurring in part and dissenting in part.
I agree that the 1998 legislation discussed by the majority in Part IV of its opinion made clear that the revenue measures the City of Gary sought to impose were beyond the powers of the City. I respectfully dissent, however, from Parts II and III of the opinion insofar as they found these measures lawful before 1998.
The majority begins its opinion by describing the revenue raised by the ordinance as “a ‘requirements-based fee’ on all telecommunications providers using the City’s rights-of-way.” From this premise it concludes that: (1) the fee is a charge for use of the City’s facilities (Part II.A); (2) the fee may be measured by revenue derived by the user, similar to a revenue-based fee paid by a car rental company to an airport for use of the airport’s facilities (Part II.B); and (3) the fee is a “service charge or user fee” permitted by the Home Rule Act (Part III).
All of these conclusions hinge on the premise that the fee is in exchange for something, namely the use of the City’s “rights-of-way.” But, as the Court of Appeals pointed out, the ordinance imposes a fee on all telecommunications providers “for access to the market or use of the public right-of-way.” City of Gary v. Indiana Bell Tel. Co.,
The majority relies on Ace Rent-A-Car, Inc. v. Indianapolis Airport Authority,
This ordinance reflects the City of Gary’s efforts to find a creative means of enhancing its ability to further its stated goal of “economic revitalization of the City by bringing its residents into the information age through extension of Internet access and other computer-based services to all economic strata in the community.” The wisdom of requiring such efforts to be approved at the state level is obviously debatable. The problems of financing municipal government are enormous, and undoubtedly are not uniform throughout this diverse state. Having said that, whether a city may impose such a tax is a call for the legislature, and the General Assembly has spoken on it, in my view not only in 1998, but also beginning with the Home Rule Act in 1980.
DICKSON, J., concurs.