This appeal presents the question -of whether the Tax Division of the Arkansas Public Service Commission has the authority to assess the property of appellants for ad valorem tax purposes. It also presents the question of whether the Tax Division’s assessment of appellants’ property violated appеllants’ right to equal protection. The Commission and the trial court determined that the Tax Division had the authority to assess appellants’ property and that no constitutional violation occurred. We agree, and affirm.
Appellants are Pine Bluff Cellular, Inc., Pinnacle Cellular Limited Partnership, Sprint Spectrum, L.P., and Southwestern Bеll Mobile Systems, Inc. These companies are commercial mobile radio service (CMRS) providers. They provide what the public would commonly refer to as cellular telephone service. The Tax Division of the Public Service Commission was created in 1959 for, among other purposes, assessing the value of prоperty owned by public utilities, including telephone companies. In July 1997, the Tax Division sent appellants notice of their ad valorem tax assessments. Appellants filed petitions with the Commission challénging the Division’s authority to assess their property on the ground that they were not “telephone companies” as defined by the tаx assessment statutes. They also protested that section 11 (g) of Act 77 of 1997, known as the Telecommunications Regulatory Reform Act, terminated the Commission’s regulatory power over CMRS providers, thereby terminating the Tax Division’s corresponding assessment power. Finally, appellants claimed that the Tax Division’s assessment of CMRS providers’ property without assessing the property of similarly situated competitors such as paging companies violated appellants’ right to equal protection. The Commission ruled in favor of its Tax Division, and that ruling was affirmed on appeal to Pulaski County Circuit Court. This appeal follows.
Appellants begin their first argumеnt by pointing out that CMRS providers have been virtually deregulated and are no longer subject to the jurisdiction of the Commission. They cite the aforementioned section 11(g) of Act 77 of 1997, now codified at Arkansas Code Annotated section 23-17-411(g) (Supp. 1999). Section 11(g) reads as follows:
The commission, except as provided in this subchaрter with respect to universal services, shall have no jurisdiction to regulate commercial mobile services or commercial mobile service providers.
The “universal services” language in the statute refers to the obligation of all telecommunications providers to contribute to the Arkansas Universal Services Fund. See Ark. Code Ann. § 23-17-404(b) (Supp. 1999).
In 1998, we interpreted section 11(g) to say that, except as specifically set forth in Act 77, the Commission’s “traditional regulatory authority” over commercial mobile service providers has been terminated. See Alltel Mobile Communications, Inc. v. Arkansas Public Serv. Comm’n,
In light of this deregulation of CMRS providers, appellants argue that the Commission is no longer vested with the power to assess the property of CMRS providers. Appellants do not contend that the power to assess is included in the power to regulate; rather, they сontend that these two powers must be exercised in a symmetrical manner. If the Commission is permitted to assess the property of CMRS providers when it is not permitted to regulate them, they claim, this symmetry is broken. To support their argument, appellants point to the fact that the Tax Division’s assessment power is restricted to publiс carriers and utilities, the very entities regulated by the Commission. See Ark. Code Ann. § 26-24-101(l)(A) (Repl. 1997); Ark. Code Ann. § 26-26-1602(b)(l) (Repl. 1997).
Despite the fact that the Commission has both regulatory and assessment power over utilities, we disagree that these dual powers may only be exercised in a parallel fashion. First, neither the regulatory statutes contained in Title 23 nor the tax statutes contained in Title 26 contain an express mandate that assessment authority be exercised only when regulatory authority is present. Secondly, the statutory scheme that gives the Tax Division its assessment authority belies a legislative intention that a link must exist between regulatory and assessment powers. The Commission’s assessment authority is part of an independent, freestanding grant of power that not only vests the Tax Division with the mandate to assess the property of public utilities and carriers, but with a broad range of assessment responsibilities unrelated to public utilities and carriers. See, e.g., Arkansas Code Annotated section 26-24-102 (Supp. 1999), giving the Division supervision and control over the valuation, equalization, and assessment of property and over the several county assessors, boards of review and equalization; and Arkansas Code Annotated section 26-26-701 (Repl. 1997), requiring the Commission to prepare the forms used by county assessors in performing their duties. Thus, it does not аppear that the legislature envisioned that the Tax Division would exercise its assessment authority only where the Commission exercised its regulatory authority. We are not convinced, therefore, that the Commission’s assessment power is extinguished in the absence of concurrent regulatory power.
As further support for their argument, appellants cite several cases from other jurisdictions in which the courts held that a public utility commission should treat a company the same way for regulatory and assessment purposes. See In re United Teleservs., Inc.,
Our holding in Alltel Mobile Communications, Inc., supra, and the Commission’s Order No. 14 issued in response, do not change our decision. By its own terms, our opinion in Alltеl refers to the fact that the Commission has been divested of “traditional regulatory authority” over CMRS providers. As we have already discussed, the Commission’s assessment power stands separate and apart from its regulatory power.
Appellants argue next that they are not “telephone companies” or any other type of utility subject to the Commission’s assessment authority. The Commission’s Tax Division has the exclusive power to assess the property of, among other entities, “telephone ... or other similar companies....” See Ark. Code Ann. § 26-24-103 (Repl. 1997); Ark. Code Ann. § 26-26-1602(b)(1) (Repl. 1997). Telephone companies are in turn defined as companies that transmit for hire within, into, from, or through this state, telephonic messages. See Ark. Code Ann. § 26-26-1601(13) (Repl. 1997). The term “telephonic messages” is not defined in these statutes. Appellants claim that they are distinguishable from telephone companies in several ways, among them: 1) they are licensed by the FCC as commercial radio servicе providers; 2) communications initiated or terminated by appellants’ customers are initiated or terminated by means of radio signals using radio facilities, including antennae, transmitters and handsets, and radio technology; and 3) appellants do not own or operate any telephone lines. In support of their argument, they cite In re Topeka SMSA Ltd. Partnership, the Kansas case mentioned earlier in this opinion. There, the Kansas court determined that a CMRS provider was not a telephone company transmitting telephonic messages.
Our resolution of this issue requires us to interpret the statutory terms “telephone company,” “other similаr companies,” and “telephonic messages.” The basic rule of statutory construction is to give effect to the intent of the legislature. Central & Southern Cos. v. Weiss,
Appellants argue further that, when the legislation that contained these terms was first passed in Act 129 of 1927, the legislature could not have intended the terms “telephone” and “telephonic” to include entities such as CMRS providers. In support of their argument, they cite Radio Tel. Comm. v. Southeastern Tel. Co.,
Before leaving this issue, we also note thаt appellants are surely subject to assessment as “other similar companies.” As we have already discussed, appellants’ similarities to wire-based telephone companies far outweigh their differences. Further, appellants use public airwaves and air space for the transmission of messages.
We turn now to appellants’ equal protection argument. Appellants claim that their right to equal protection was violated because, while their property was assessed by the Commission’s Tax Division, the property of similarly situated taxpayers such as paging companies was assessed by county assessors. The Equal Protection Clause of the Fourteenth Amendment protects an individual from state action which selects him out for discriminatory treatment by subjecting him to taxes not imposed on others of the same class. See Hillsborough v. Cromwell,
Even if we agree that appellants and paging companies are similarly situated enterprises, appellants have not shown that they bear an unequal burden, nor have they shown a lack of rough equality between their treatment by the Tax Division and the paging companies’ treatment by county assessors. No matter which entity conducts the assessment, the same twenty-percent valuation rate is used. See Arkansas Code Annotated section 26-26-304(b)(3) (Supp. 1999), requiring that the assessed value of property be placed on the tax record at twenty-percent of its true and full market or actual value. Although appellants, in a joint stipulation of facts before the Commission, claimed that, had the county assessors rather than the Tax Division аssessed their property, the assessments would have been lower, the Tax Division included a stipulation that the assessments by the counties could possibly have been higher or lower than its own assessments. Given the uniform assessment rate, we can only conclude that, in the absence of any contrary evidence by appеllants, any possible difference in assessed values would result from the application of different accounting methods. The use of different accounting methods to assess property in the same class is of no constitutional moment. Allegheny Pittsburgh Coal Co., supra; Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm’n,
Appellants’ final argument concerns a procedural matter in circuit court. Before trial, appellants filed a motion for leave to present additional evidence. They asked to present experts to testify regarding the difference between themselves and traditional telephone companies and to testify that assessment by county assessors would result in a lower assessment. The trial judge refused to allow the additional evidence on the basis that his review was restricted to the record made before the Commission.
We agree with the trial judgе. Arkansas Code Annotated section 26-24-123(c) (Repl. 1997) provides that appeals from a Commission ruling regarding assessment shall be tried de novo. The type of de novo trial contemplated under this statute is not the type that calls for the reception of new evidence but the type in which review is confined to the record made before the administrative body. See Comment, Judicial Review of Findings of the Arkansas Public Service Commission, 2 Ark. L. Rev. 67 (1947-48); see also St. Louis-San Francisco Ry. Co. v. Public Serv. Comm’n,
Affirmed.
Notes
Appellants urge us to apply certain special rules of statutory construction used in interpreting tax statutes, e.g., when the meaning of a tax statute is doubtful, its meaning should be resolved in favor of the taxpayer, and a tax should not be imposed except by express words indicating that purpose. See Leathers v. Active Realty, Inc.,