Case: 09-50651 Document: 00511339601 Page: 1 Date Filed: 01/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2011
No. 09-50651 Lyle W. Cayce
Clerk
AT&T, INC.,
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
DENNIS, Circuit Judge:
The issue in this federal income tax case is whether the plaintiff-taxpayer,
AT&T Inc., an interstate telecommunications company, must pay income taxes
on the funds it received from federal and state governmental entities for
providing “universal service”—viz., affordable telephone service mainly for
lower-income consumers and those in high-cost rural, remote or isolated
areas—or else is entitled to treat those funds as nonshareholder contributions
to capital under the Internal Revenue Code, see 26 U.S.C. § 118(a). The district
court held that the taxpayer was not entitled to a refund of income taxes paid on
the funds because the “universal service” support payments were income rather
than capital contributions. We affirm the judgment of the district court.
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BACKGROUND
“Universal service” refers to the goal, first announced in the
Communications Act of 1934, “‘to make available, so far as possible, to all the
people of the United States, . . . a rapid, efficient, Nation-wide, and world-wide
wire and radio communication service with adequate facilities at reasonable
charges.’” Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 405-06 (5th Cir.
1999) (quoting 47 U.S.C. § 151) (alteration made to reflect 1934 text); see also
Alenco Commc’ns, Inc. v. FCC, 201 F.3d 608, 614 (5th Cir. 2000).
The FCC is charged with the authority and duty of carrying out the
universal service mandate. 47 U.S.C. §§ 151, 254, 256; Tex. Office of Pub. Util.
Counsel, 183 F.3d at 405-06. Originally, rather than relying on market forces
alone, the FCC “used a combination of implicit and explicit subsidies” to promote
universal service. Tex. Office of Pub. Util. Counsel, 183 F.3d at 406. “Explicit
subsidies provide carriers or individuals with specific grants that can be used to
pay for or reduce the charges for telephone service. This form of subsidy includes
using revenues from line charges on end-users to subsidize [service to] high-cost
[users] and to support the Lifeline Assistance program for low-income
subscribers.” Id. “Implicit subsidies are more complicated and involve the
manipulation of rates for some customers to subsidize more affordable rates for
others. For example, the regulators may require the carrier to charge ‘above-cost’
rates to low-cost, profitable urban customers to offer the ‘below-cost’ rates to
expensive, unprofitable rural customers.” Id.
“In 1996, Congress amended the Act to introduce competition into local
telephone service, Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56, which had traditionally been provided through regulated monopolies.”
Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1098 (D.C. Cir. 2009); see also 47
U.S.C. § 251 et seq. In doing so, “Congress recognized” that because the “system
of implicit subsidies can work well only under regulated conditions,” the existing
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system of universal service support payments needed “to be re-examined.” Tex.
Office of Pub. Util. Counsel, 183 F.3d at 406.
“To attain the goal of local competition while preserving universal service,
Congress directed the FCC to” (1) institute a Federal-State Joint Board to
recommend changes in the FCC’s regulations that define and implement
universal service; and (2) implement the recommendations from the Joint Board
by promulgating rules to carry them into effect. Id.; see also 47 U.S.C. § 254(a).
Further, by § 254(b), Congress “direct[ed] the Joint Board and the Commission
to base policies for the preservation and advancement of universal service on six
enumerated principles, plus such ‘other’ principles as the Joint Board and the
Commission may establish.” Rural Cellular Ass’n, 588 F.3d at 1098. The
enumerated principles are: (1) “Quality services should be available at just,
reasonable, and affordable rates”; (2) “Access to advanced telecommunications
and information services should be provided in all regions of the Nation”; (3)
“Consumers in all regions of the Nation, including low-income consumers and
those in rural, insular, and high cost areas, should have access to
telecommunications and information services . . . at rates that are reasonably
comparable to rates charged for similar services in urban areas”; (4) “All
providers of telecommunications services should make an equitable and
nondiscriminatory contribution to the preservation and advancement of
universal service”; (5) “There should be specific, predictable and sufficient
Federal and State mechanisms to preserve and advance universal service”; and
(6) “Elementary and secondary schools and classrooms, health care providers,
and libraries should have access to advanced telecommunications services.” 47
U.S.C. § 254(b).
The Telecommunications Act of 1996 also allowed the states to develop
their own universal service support systems, so long as those “regulations [are]
not inconsistent” with the FCC’s rules “to preserve and advance universal
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service” in telecommunications. Id. § 254(f). Pursuant to this authority,
California, Kansas and Texas adopted universal service regulations consistent
with the FCC’s rules.
The FCC mandate to provide universal service is now fulfilled through
payments to telecommunications providers by a universal service fund (“USF”).
In addition to the high-cost support program, which is designed mainly to
provide affordable telephone service to consumers in high-cost rural or isolated
areas, the USF supports programs for low-income customers, schools, libraries,
and health care providers. “High-cost support disbursements, however,
overwhelmingly represent the largest category of USF expenditures, accounting
for 61.6 percent of USF disbursements in 2007.” Rural Cellular Ass’n, 588 F.3d
at 1099 (citing Fed.-State Joint Bd. on Universal Serv., Universal Service
Monitoring Report tbl.1.11 (2008)). California, Kansas and Texas have instituted
similar USFs in each state. Only the 1998 and 1999 payments to AT&T by those
state USFs and by the federal USF are at issue in the instant case. AT&T claims
that both federal and state payments should be treated as capital contributions,
not income.
Support for the state and federal USFs comes from assessments, made by
the USF administrators, the FCC, and the state utility commissions, requiring
mandatory contributions to be paid by “all providers of telecommunications
services.” 47 U.S.C. § 254(b)(4); see also Tex. Util. Code Ann. § 56.022(a); Kan.
Stat. § 66-2008(a). “Every telecommunications carrier that provides interstate
telecommunications services [must] contribute, on an equitable and
nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms
established by the [FCC] to preserve and advance universal service.” 47 U.S.C.
§ 254(d). Similarly, every “carrier that provides intrastate telecommunications
services [must] contribute, on an equitable and nondiscriminatory basis, in a
manner determined by the State to the preservation and advancement of
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universal service in that State.” Id. § 254(f). “[C]ontributors almost always pass
their contribution assessments through to their customers.” Rural Cellular
Ass’n, 588 F.3d at 1099 (citing Alenco Commc’ns, Inc., 201 F.3d at 620).
Pursuant to the statutory provisions and the FCC’s and the states’ rules,
disbursements are calculated by the respective commissions and paid to the
carriers providing federal and state universal services. The universal service
payments are designed to offset the telephone companies’ added costs or
decreased revenue associated with servicing high-cost and low-income users. The
USF payments for servicing high-cost users are based upon how much more than
the average it costs to integrate those users into the telephone system. See 47
C.F.R. § 36.631; see also 16 Tex. Admin. Code § 23.133 (1999); Kan. Stat. § 66-
2008(d); In re Rulemaking on the Commission’s Own Motion into Universal
Service and Compliance with the Mandates of Assembly Bill 3643, 68 CPUC 2d
524, 1996 WL 651546, at *1-2 (Cal. Pub. Util. Comm’n 1996). The USF payments
for servicing low-income users are designed to decrease or eliminate certain
charges that those users would otherwise have had to pay. 47 C.F.R.
§§ 54.403(b)-(c) (1997), 54.411(a); see also 16 Tex. Admin. Code § 23.142(d)(2)
(1999). To be eligible to receive these disbursements of USF funds, a carrier
must offer the services designated as “universal” by the FCC and advertise the
availability of those services and the charges for such services. 47 U.S.C.
§ 214(e)(1).
From the state and federal USFs, AT&T received USF payments of $723.5
million in 1998 and $831.3 million in 1999. AT&T recorded these amounts as
“revenue” for financial and regulatory accounting purposes. AT&T deposited
these USF payments into its general bank account, along with other customer
revenues, from which operating expenses and other costs were paid. AT&T did
not earmark or track its use of the USF payments it received. On its 1998 and
1999 federal income tax returns, however, AT&T did not include its USF receipts
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in its gross income. As a result, AT&T did not pay $505,245,517 in income taxes
on the payments it received from the USFs in 1998 and 1999. AT&T did,
however, treat the mandatory contributions it was required to make to the USFs
as deductible business expenses in 1998 and 1999. The IRS determined that
AT&T had incorrectly failed to report the USF payments as income. AT&T paid
the income tax deficiencies assessed by the IRS and filed administrative claims
for a refund, which were denied.
AT&T filed this suit in federal district court seeking tax refunds totaling
$505,245,517. AT&T contended that the USF payments were capital
contributions excludable from its gross income under 26 U.S.C. § 118(a). The
Government filed a motion for summary judgment, arguing that the undisputed
facts and applicable law demonstrate that the government payors of USF
support payments did not intend to make capital contributions to AT&T in
making payments from the USFs; and that they instead intended to supplement
the carriers’ operating income by compensating them for some of their costs of
servicing high-cost customers and by reimbursing carriers for discounts that
they were required to give low-income consumers. The Government further
relied on the Eleventh Circuit’s decision in United States v. Coastal Utilities,
Inc., 514 F.3d 1184 (11th Cir. 2008), adopting and affirming United States v.
Coastal Utilities, Inc., 483 F. Supp. 2d 1232 (S.D. Ga. 2007), which held that
payments from USFs to support high-cost users did not constitute capital
contributions.
AT&T opposed the motion, arguing that there was a genuine issue as to
a material fact, viz., whether the FCC and state payors intended to make
contributions to AT&T’s capital in making the USF payments, which required
a trial; that the USF payments were intended to pay for the expansion and
upgrading of the carriers’ network infrastructure and must be treated as capital
contributions; and that Coastal Utilities was erroneously decided because the
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court there did not examine the five requirements for a payment to be held to be
a capital contribution set forth in United States v. Chicago, Burlington & Quincy
Railroad Co., 412 U.S. 401, 413 (1973) (hereinafter CB&Q).
The district court referred the Government’s motion for summary
judgment to a magistrate judge, who recommended that the court should grant
the motion. She indicated that “[t]he parties agree that the test for determining
whether a payment is a contribution to capital is the transferor’s intent.”
However, she rejected AT&T’s argument that the court is required to rigidly
apply the test identified in CB&Q. Instead, the magistrate judge determined
that the court could discern the state and federal governments’ intent by
examining the method by which the FCC and state utility commissions decided
to make payments from the USFs to support service to high-cost and low-income
subscribers. The magistrate judge stated that these payments were intended to
supplement “lost revenues” from servicing these customers and that “the cost of
capital improvements is not part of the calculation of the universal service
payments”; “[a]lthough the cost of capital improvements [such as building
telephone lines] undoubtedly affects the amount a carrier claims, the
computations of payments focuses on revenue (the amount of universal service
charges), not capital improvements.” Therefore, because “carriers provide service
at discounted rates and governments reimburse carriers for revenues lost in
providing discounted services,” nothing in the payment structure for servicing
high-cost or low-income customers directly implicates capital contributions.
Accordingly, the magistrate judge rejected AT&T’s contention that there was a
genuine issue of material fact requiring a trial. She stated that “AT&T [had]
submitted a large volume of summary-judgment evidence . . . but did not explain
why or how this evidence raises a material fact question” and that she had
“found nothing raising a fact question about whether universal service payments
to AT&T constitute non-shareholder contributions to capital.”
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After reviewing the record, the recommendations of the magistrate judge,
and the arguments of the parties, the district court accepted and adopted the
magistrate judge’s recommendation in its entirety, and granted the
government’s motion for summary judgment, rejecting AT&T’s claim for a refund
of income taxes paid. AT&T appealed.
STANDARD OF REVIEW
“[I]t is well settled that an appellate tribunal may affirm a trial court’s
judgment on any ground supported by the record.” Lee v. Kemna, 534 U.S. 362,
391 (2002). “In determining whether a district court properly granted summary
judgment, this Court must review the record under the same standards that
guided the district court.” Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir.
1992). “We must review the evidence, as well as the inferences that may be
drawn from the evidence, in the light most favorable to the party that opposed
the motion for summary judgment.” Id. “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).1
DISCUSSION
For the reasons assigned hereinafter, we agree with the district court that
the record reveals no genuine dispute as to any material fact and that the
defendant is entitled to judgment as a matter of law. In summary, under the
Supreme Court’s decisions and the Internal Revenue Code, whether a payment
to a corporation by a non-shareholder is income or a capital contribution to the
1
While this case was pending before this court, the text of Rule 56 changed. This
change was meant to “carr[y] forward the summary-judgment standard expressed in former
subdivision (c).” Fed. R. Civ. P. 56 advisory committee note (2010 Amendments). Thus, while
the district court and this court rely on slightly different language in concluding that summary
judgment is warranted and the United States is entitled to judgment as a matter of law, both
represent the same legal standard.
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corporation is controlled by the intention or motive of the transferor. When the
transferor is a governmental entity, its intent may be manifested by the laws or
regulations by which it effectuates the payment to the corporation. In the
present case, the statutes authorizing the universal service programs, the
administrative orders establishing the USFs, and the regulations implementing
the raising of revenues for the USFs and the payments from them to AT&T and
its subsidiaries, taken together, demonstrate an intent to supplement the income
of the telephone companies, rather than to make capital contributions to them.
In addition, in CB&Q, the Supreme Court indicated that five characteristics,
distilled from its jurisprudence, can serve as hallmarks for the transferor’s
intent. Four of the five, and ordinarily the fifth, must be satisfied before a court
can conclude that a transfer was a capital contribution. Applying that test, we
again conclude that the governmental transferors in the present case did not
intend to make capital contributions to the telephone companies because the
transfers fail to satisfy three of the five factors. Therefore, under either the
statutory-regulatory construction analysis or the CB&Q five-factor test, the
universal services payments were not contributions to capital but were income
to AT&T.
I.
“Section 61(a) of the Internal Revenue Code provides a broad definition
of ‘gross income’: ‘Except as otherwise provided in this subtitle, gross income
means all income from whatever source derived.’ 26 U.S.C. § 61(a).” Comm’r v.
Schleier, 515 U.S. 323, 327 (1995). The Supreme Court has “repeatedly
emphasized the ‘sweeping scope’ of this section and its statutory predecessors.”
Id. at 327-28 (quoting Comm’r v. Glenshaw Glass Co., 348 U.S. 426, 429 (1955))
(citing United States v. Burke, 504 U.S. 229, 233 (1992); Helvering v. Clifford,
309 U.S. 331, 334 (1940)). The Court has “also emphasized the corollary to
§ 61(a)’s broad construction, namely, the ‘default rule of statutory interpretation
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that exclusions from income must be narrowly construed.’” Id. at 328 (quoting
Burke, 504 U.S. at 248 (Souter, J., concurring in judgment)) (citing Burke, 504
U.S. at 244 (Scalia, J., concurring in judgment); United States v. Centennial Sav.
Bank FSB, 499 U.S. 573, 583 (1991); Comm’r v. Jacobson, 336 U.S. 28, 49
(1949)).
AT&T recognizes § 61(a)’s “sweeping” definition and concedes that its
receipts of universal services payments constitute gross income unless they are
expressly excepted by 26 U.S.C. § 118(a), which provides: “In the case of a
corporation, gross income does not include any contribution to the capital of the
taxpayer.”
“‘[C]ontribution to capital’ is not expressly defined by statute.” Coastal
Utils., 514 F.3d 1184, aff’g 483 F. Supp. 2d at 1238. But “the legislative history
of § 118 explicitly states that the statute was meant to ‘place[] in the Code the
Court decisions on this subject.’” Id. (second alteration in original) (quoting H.R.
Rep. No. 83-1337, at A-38 (1954), reprinted in 1954 U.S.C.C.A.N. 4017, 4042; S.
Rep. No. 83-1622 (1954), reprinted in 1954 U.S.C.C.A.N. 4621, 4648). Therefore,
a brief history tracing the development of the Supreme Court’s jurisprudence is
essential to an understanding of the meaning of the term “contribution to
capital” and thus, the tax character of the instant payments.
In Edwards v. Cuba Railroad Co., the Supreme Court held that money
from the Cuban government paid to a railroad to “subsid[ize] up to $6,000 per
kilometer” of track laid, “and [which was] used for capital expenditures,” was a
capital contribution, not income. 268 U.S. 628, 629, 630-31 (1925); see also
Springfield St. Ry. Co. v. United States, 577 F.2d 700, 702 (Ct. Cl. 1978). The
Supreme Court explained,
The subsidy payments were proportionate to mileage completed;
and this indicates a purpose to reimburse plaintiff for capital
expenditures. . . . Neither the laws nor the contracts indicate that
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the money subsidies were to be used for the payment of dividends,
interest or anything else properly chargeable to or payable out of
earnings or income.
Edwards, 268 U.S. at 632-33 (emphasis added).
Later, in Texas & Pacific Railway v. United States, 286 U.S. 285 (1932),
and Continental Tie & Lumber Co. v. United States, 286 U.S. 290 (1932), the
question was whether the federal government’s payments, which were meant to
“guarantee[]” the companies “an operating income,” were income or capital
contributions. Tex. & Pac. Ry., 286 U.S. at 288; see also Cont’l Tie & Lumber Co.,
286 U.S. at 293-94. The Court concluded that the monies were income, stating:
The sums received under the act were not subsidies or gifts—that
is, contributions to the capital of the railroads—and this fact
distinguishes cases such as Edwards. . . . Here the[ sums] were to
be measured by a deficiency in operating income, and might be used
for the payment of dividends, of operating expenses, of capital
charges, or for any other purpose within the corporate authority,
just as any other operating revenue might be applied.
Tex. & Pac. Ry., 286 U.S. at 289-90; see also Cont’l Tie & Lumber Co., 286 U.S.
at 293-94 (stating that payments that “guaranteed the payment of any deficiency
below a fixed minimum of operating income” and were motivated by an effort to
compensate for “losses in income due to” government programs were income).
Subsequently, in Detroit Edison Co. v. Commissioner, 319 U.S. 98, 99
(1943), the Court ruled on the tax character of payments by customers to the
company for the “estimated cost of the necessary construction” for extending
“facilities” to service those customers. The Court indicated that the transfers
could be taxed as income and therefore “[t]he Commissioner was warranted in
adjusting the” company’s basis in certain items purchased with these monies
from the customers. Id. at 103. The Court stated that “[t]he payments were to
the customer the price of the service” and thus they should be treated as such,
i.e., income. Id.
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In Brown Shoe Co. v. Commissioner, 339 U.S. 583, 584 (1950), the Court
concluded that “the payment of cash and the transfer of other property to [the
company] by certain community groups as an inducement to the location or
expansion of [the company’s] factory operations in the communities” were capital
contributions. The Court explained that “[u]nder these circumstances the
transfers manifested a definite purpose to enlarge the working capital of the
company.” Id. at 591 (emphasis added).
The latest guidance from the Supreme Court on the subject of what
constitutes a nonshareholder contribution to capital was provided in CB&Q.
There, the Court held that “the intent or motive of the transferor . . . determined
the tax character of the transaction.” CB&Q, 412 U.S. at 411. The Court
reasoned that “the decisional distinction between Detroit Edison and Brown
Shoe rested upon the nature of the benefit to the transferor, rather than to the
transferee, and upon whether that benefit was direct or indirect, specific or
general, certain or speculative.” Id.; see also G.M. Trading Corp. v. Comm’r, 121
F.3d 977, 980 (5th Cir. 1997); Deason v. Comm’r, 590 F.2d 1377, 1378 (5th Cir.
1979); Springfield St. Ry. Co., 577 F.2d at 702-03.
Moreover, adverting to Detroit Edison and Brown Shoe, the CB&Q Court
concluded, “[w]e can distill from these two cases some of the characteristics of a
nonshareholder contribution to capital under the Internal Revenue Codes”:
[1] It certainly must become a permanent part of the transferee’s
working capital structure. [2] It may not be compensation, such as
a direct payment for a specific, quantifiable service provided for the
transferor by the transferee. [3] It must be bargained for. [4] The
asset transferred foreseeably must result in benefit to the transferee
in an amount commensurate with its value. [5] And the asset
ordinarily, if not always, will be employed in or contribute to the
production of additional income and its value assured in that
respect.
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CB&Q, 412 U.S. at 413. The Court then proceeded to reject CB&Q’s contention
that it had received capital contributions because the transfers at issue failed to
satisfy the third and fourth characteristics, even though the Court noted that the
transfers satisfied the second. Id. at 413-15. Thus, the Court indicated that
although the tax character of a transfer was ultimately determined by the
transferor’s intent, for a court to hold that a transfer was a capital contribution,
each of the first four, and ordinarily the fifth, characteristics must also be
satisfied. This is how our circuit has interpreted CB&Q’s holding. G.M. Trading,
121 F.3d at 980-81; see also Deason, 590 F.2d at 1378-79 (“[T]he Supreme Court
in [CB&Q] enumerated certain requisite characteristics common to
nonstockholder contributions to capital under the Internal Revenue Code . . . .”).
From the foregoing review of the Supreme Court’s cases, we derive these
principles: (1) Whether a payment to a corporation by a non-shareholder is
income or a capital contribution is controlled by the intention or motive of the
transferor. (2) When the transferor is a governmental entity, its intent may be
manifested by the laws or regulations that authorize and effectuate its payment
to the corporation. (3) Also, a court can determine that a transfer was not a
capital contribution if it does not possess each of the first four, and ordinarily the
fifth, characteristics of capital contributions that the Supreme Court distilled
from its jurisprudence in CB&Q. Applying these principles to the facts of this
case, we conclude that, either by construing the controlling statutes and
regulations or by applying the CB&Q five-factor test, the governmental entities
in making universal service payments to AT&T did not intend to make capital
contributions to AT&T; and thus, that the payments were income to AT&T.
Thus, in this case, we need not pause to determine whether one method
of determining the intention or motive of the transferor is more appropriate than
the other. By alternately bringing each method to bear on this case, we reach the
same result in both applications, thereby reinforcing our conclusion that the
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universal service payments were intended and must be treated as income to
AT&T.
II.
As we read the statutes authorizing the USF payments, the administrative
orders implementing those statutes, and the resulting regulations, the USF
payments were not intended to be capital contributions to AT&T, but to be
supplements to AT&T’s gross income to enable it to provide universal service
programs while meeting competition newly introduced by the 1996 Act.
A. The Telecommunications Act articulates six “principles” on which the
federal USF payment “policies” are to be “base[d].” 47 U.S.C. § 254(b). These
principles establish that the payments are intended to “offset” recipients’
increased costs or lost revenue in servicing high-cost and low-income users, so
that the recipients can provide and expand universal service while remaining
competitive in the telecommunications market. See H.R. Rep. No. 103-560, at 41
(1994) (stating that the federal USF was intended to “offset[] the high cost of
providing local telephone service to rural areas” and “offset the initial telephone
installation charge and also defray[] interest expense[s]” for low-income users);
see also S. Rep. No. 104-23, at 29 (1995). For instance, the first principle on
which the federal USF payments are to be based is that “services should be
available at just, reasonable, and affordable rates.” 47 U.S.C. § 254(b)(1). The
third principle states that “[c]onsumers in all regions of the Nation, including
low-income consumers and those in rural, insular, and high cost areas, should
have access to telecommunications and information services . . . that are
reasonably comparable to those services provided in urban areas and that are
available at rates that are reasonably comparable to rates charged for similar
services in urban areas.” Id. § 254(b)(3). As explained in the background section,
the USF system was developed in recognition of the fact that high-cost and low-
income individuals could not readily afford telephone services in the absence of
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rate regulation. By seeking to assure that these customers receive “comparable”
telephone services at “affordable rates,” which are also “comparable” to the rates
charged to non–high-cost or low-income users, these principles indicate that the
USF payments are intended to compensate the telecommunications companies
for the difference between the costs of providing service to high-cost and low-
income customers and what those customers can afford to pay, so that the
customers can receive service and the companies can remain competitive. See id.
§ 254(b)(1), (3). Of course, the Act’s general principles do not specifically address
whether the USF payments are intended as capital contributions or income nor
how the payments are to be made. However, by linking the payments to the
recipient companies’ rates charged to non–high-cost or low-income customers,
the principles narrowed the mechanisms by which the USF payments could be
distributed, making it more likely that they would take the form of income
supplements rather than capital contributions.
B. The foregoing statutory principles were implemented by the FCC’s Report
and Order on universal service. In the Matter of Federal-State Joint Board on
Universal Service, 12 FCC Rcd. 8776, ¶ 2 (May 8, 1997) (stating that its
decisions were “[c]onsistent with the explicit statutory principles”); id. ¶ 17
(stating that it was modifying its payment “mechanisms . . . to make them more
consistent with the statutory requirements and principles”). The FCC’s decision
to directly implement the principles, tying USF payments to companies’ rates
charged to customers for universal services, furthered the likelihood that the
USF payments would become part of the companies’ income. For example,
repeating the language of the first principle, quoted above, in its introduction to
the Report and Order, the FCC declared that its “[u]niversal service support
mechanisms . . . are designed to increase subscribership by keeping rates
affordable.” Id. ¶ 8. Consistent with the third principle from the
Telecommunications Act, the Report and Order described how the FCC would
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achieve the goal of keeping universal service consumers’ bills affordable, stating
that for high-cost users, the high-cost support payments would be equal to “the
cost of providing universal service for high cost areas because it best reflects the
cost of providing service in a competitive market for local exchange telephone
service.” Id. ¶ 26. Likewise, the FCC explained that the low-income support
program known as Lifeline assistance would be “condition[ed] . . . on the state
permitting its carriers to reduce intrastate charges paid by the end user.” Id.
¶ 326; see also id. ¶¶ 351-53, 367 (describing similar principles for the low-
income support programs).
In this manner, the implementing administrative document directly put
into effect the Act’s intention that the USF payments should be equivalent to
customers’ fees for services. It indicated that USF payments would be designed
to offset a portion of the telecommunications company’s real cost of providing
discounted services to low-income and high-cost customers, thus providing the
company with revenue associated with universal service comparable to what it
could gain from servicing more affluent low-cost urban customers. Again, it did
not specifically state whether the payments were intended as income or capital
contributions, but by designing the payment mechanisms to directly implement
the Act’s policy principles, the Report and Order further narrowed the possibility
that the payments could be viewed as anything but income.
C. What is more, the FCC’s Report and Order promulgated new regulations
and endorsed certain existing regulations related to universal service. See, e.g.,
id. ¶¶ 300, 986. These regulations included the specific mechanisms used to
calculate disbursements from the federal USF to the recipient companies, which
directly effectuated the principles and policies as described in the Act and Report
and Order. Accordingly, as the Eleventh Circuit recognized in Coastal Utilities,
these mechanisms are fully and finally indicative of the intent underlying the
payments: that they were designed to supplement income. 514 F.3d 1184, aff’g
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483 F. Supp. 2d at 1241-42. For example, the regulations explained that the
federal high-cost user support program would provide the recipient company
75%, plus a multiplier, of the cost incurred in servicing high-cost users that
exceeds “150 percent of the national average for this cost.” 47 C.F.R.
§ 36.631(c)(2). Similarly, the regulation regarding low-income Lifeline assistance
stated that the program would provide money so that the recipient companies
could “waive” certain charges for Lifeline customers. Id. § 54.403(b) (1997).
Therefore, as indicated by the statute’s principles and the FCC’s universal
service policy principles, the regulations dictated that the federal USF would
directly compensate AT&T for its lost revenue or increased expenses in servicing
high-cost and low-income users, assuring AT&T of competitive rates of income
from these services. Therefore, USF payments were clearly intended to be
income for AT&T and not capital contributions.
D. The functions of the California, Kansas and Texas state USFs are
consistent with and analogous to those of the FCC’s federal USF. These states’
legislators and utility commissions expressly adopted universal service policies
similar to and consistent with the federal policies and goals in raising and using
USFs. The state USFs are funded by mandatory assessments on companies
providing universal service; payments from the USFs to the companies provide
telecommunications carriers with money to offset their increased costs or
reductions in revenues resulting from servicing high-cost or low-income users
and thus provide the companies with competitive rates of return for their
services. See, e.g., Cal. Pub. Util. Code § 270(b), 2004 historical note (stating that
payments from the current California USF are meant to “compensate telephone
corporations for their costs of providing universal service” and that this program
is merely a “re-authoriz[ation]” of prior USFs); Kan. Stat. § 66-2008(d) (stating
that USF funding is “for the purpose of providing services to and within the
service area of the qualified telecommunications [company]”); Tex. Util. Code
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§ 58.001(1) (stating that the policy underlying Texas’s USF is to “provide a
framework for an orderly transition from the traditional regulation of return on
invested capital to a fully competitive telecommunications marketplace,” thereby
suggesting that Texas USF payments are intended to ensure that
telecommunications companies receive competitive returns on their
investments); Tex. Util. Code § 56.022(a). Moreover, the state USFs use
mechanisms similar to the federal mechanisms described above to calculate the
amount of universal service support they provide. See, e.g., Kan. Stat. § 66-
2008(d); 16 Tex. Admin. Code § 23.133 (1999); In re Rulemaking on the
Commission’s Own Motion into Universal Service and Compliance with the
Mandates of Assembly Bill 3643, 1996 WL 651546, at *2.
In this manner, the authorizing statutes, administrative orders and
regulations demonstrate a consistent governmental intent that the USF
payments were designed to provide the telephone companies with supplemental
revenue to offset their extra costs in or decreased revenue resulting from
providing high-cost and low-income customers with affordable telephone
services. That intent was implemented by the payment mechanisms, which
distribute the USF payments in a manner so as to supplement the recipient
companies’ revenue from services.
The Supreme Court’s decision in Texas & Pacific Railway confirms that
such a regulatory and legislative framework dictates that the payments were
income. As noted above, there the United States had agreed that “[i]f the fruits
of [i.e., revenue of] the [company] should fall below a fixed minimum, then the
government [would] make up the deficiency.” 286 U.S. at 289. The Court
explained that these payments were designed to provide the railway with
sufficient funds to “rehabilitate[] . . . the road[] as [a] privately owned and
operated organization[]” by “stabiliz[ing] [its] credit position . . . by assuring [it]
a minimum operating income” and thereby allowing it to seek out loans and
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develop its business. Id. at 288-89. Because the mechanism for calculating the
payment to the railway was based upon the railway’s revenue, the Court
concluded, “[c]learly, then, the amount paid to bring the yield from operation up
to the required minimum was as much income from operation as were the
railroad’s receipts from fares and charges. The sums received under the act were
not subsidies or gifts—that is, contributions to the capital of the railroad[]. . . .
Here they were to be measured by a deficiency in operating income, and might
be used for the payment of dividends, of operating expenses, of capital charges,
or for any other purpose within the corporate authority, just as any other
operating revenue might be applied. The government’s payments were not in
their nature bounties, but an addition to a depleted operating revenue . . . .” Id.
at 289-90; see also Cont’l Tie & Lumber Co., 286 U.S. at 293-94 (stating that
payments that “guaranteed the payment of any deficiency below a fixed
minimum of operating income” and were motivated by an effort to compensate
for “losses in income due to” government programs were income).
Similarly, the policies and payment mechanisms underlying the state and
federal USFs demonstrate that the payments were intended to compensate the
telecommunications companies for lost revenue and thus were income to the
companies. Further supporting this conclusion, like the payments at issue in
Texas & Pacific Railway, the USFs can be used for the payment of a wide variety
of expenses, with the only condition being that the funds go toward costs that fit
within the infinitely broad category of payments “for the provision, maintenance,
and upgrading of facilities and services for which the support is intended.” 47
U.S.C. § 254(e).2 Therefore, the state and federal USF payments are not
2
The state funds at issue have slightly different formulations of how the USF monies
were to be used by the recipient companies. However, AT&T does not argue that the payments
from the state and federal funds should be treated differently. Moreover, as noted above, the
Telecommunications Act establishes that the state funds’ regulations cannot be “inconsistent
with the Commission’s rules to preserve and advance universal service.” 47 U.S.C. § 254(f).
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excludable from AT&T’s income as nonshareholder contributions to capital
under 26 U.S.C. § 118.
III.
Application of the CB&Q five-factor test to the facts of this case leads to
the same conclusion. In CB&Q the Supreme Court stated that while the intent
of the transferor is the ultimate test for whether a transfer is a capital
contribution, the Court’s cases teach that a capital contribution must have at
least four, ordinarily five, characteristics. 412 U.S. at 413. The USF payments
fail to satisfy three of the four mandatory characteristics, showing that they
were not capital contributions but must be recognized as income to AT&T.
A. AT&T fails to show that it “bargained for” the USF payments rather than
simply having accepted the unilaterally imposed law and regulations
determining the USF payments. See id. at 413. AT&T demonstrates only that
it submitted comments to and conducted ex parte meetings with the FCC as part
of the agency’s consideration of how to structure the USF payments. Likewise,
prior to the establishment of the state USFs by California, Kansas, and Texas,
an AT&T spokesperson testified before legislative and regulatory committees,
made presentations, submitted documents and comments, and attended
meetings. In Kansas, a company representative sat on “a telecommunications
strategic planning committee” during the development of the Kansas universal
service support system. However, the Kansas resolution establishing that
committee specified that the committee was merely “advisory in nature,” helping
only to recommend a plan for “future actions by the legislature.” Kan. Senate
Con. Res. No. 1627 (1994). Therefore, AT&T’s evidence demonstrates only that
its participation in the development of the state and federal USFs amounted to
lobbying and advocacy designed to influence independent legislative and
Therefore, any differences must be insignificant.
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administrative decisions. Essentially, the statutes and the regulations were
unilaterally imposed by law upon AT&T and other carriers and not enacted in
exchange for the carriers’ quid pro quo.
Accordingly, AT&T’s lobbying and advocacy did not amount to bargaining
in the CB&Q sense. A bargain requires mutual “negotiat[ion]” or “haggl[ing].”
See Coastal Utils., 514 F.3d 1184, aff’g 483 F. Supp. 2d at 1234 (quoting
Webster’s Collegiate Dictionary 99 (11th ed. 2003)) (internal quotation marks
omitted). Accordingly, the Supreme Court stated in CB&Q that a transaction
that “in substance was unilateral” cannot be bargained for. 412 U.S. at 414; see
also Springfield St. Ry. Co., 577 F.2d at 703. As a result, taking all of AT&T’s
arguments and cited evidence in the light most favorable to it, the record
demonstrates that the state and federal USFs may have been influenced by
AT&T’s efforts, but not that they were bargained for by the company. The
company sought only to influence the governmental entities’ unilateral decision-
making, not to engage in a mutual exchange of commitments. Coastal Utils., 514
F.3d 1184, aff’g 483 F. Supp. 2d at 1249 (“[I]t appears that the FCC and the
[local utility commission] established, by orders and regulations, the amount of
support that Coastal was entitled to receive. Such circumstances do not in any
real sense constitute a bargain.” (footnote omitted)); see also Lehnert v. Ferris
Faculty Ass’n, 500 U.S. 507, 528 (1991) (noting that in the First Amendment
context, lobbying activities are distinct from collective bargaining); 520 S. Mich.
Ave. Assocs., v. Shannon, 549 F.3d 1119, 1132-33 (7th Cir. 2008) (drawing a
distinction between lobbying and collective bargaining).
B. Notwithstanding AT&T’s assertion to the contrary, the USF payments also
were paid to AT&T to compensate it for providing certain specific services. Thus,
AT&T fails to demonstrate the payments satisfy the second CB&Q characteristic
of a capital contribution—that the transfer not be made as “compensation . . . for
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a specific, quantifiable service provided for the transferor by the transferee.”
CB&Q, 412 U.S. at 413.
Whether a payment is compensation for a specific, quantifiable service is
illustrated by the Supreme Court’s pair of decisions in Detroit Edison and Brown
Shoe. In the former, the Court found the transfers to be compensation for
services and therefore income; in the latter, the Court concluded that the
transfers were not compensation for services and thus, could be capital
contributions. The payments in Detroit Edison resulted from the company’s
agreement with customers that if the customers “pa[id] the estimated cost of the
necessary construction,” the company would expand previously unavailable
services to reach those individuals. 319 U.S. at 99. The Court held that these
payments, either from single individuals or shared among several customers,
were income and not capital contributions because “[t]he payments were to the
customer the price of the service. . . . It is enough to say that it overtaxes
imagination to regard the farmers and other customers who furnished these
funds as makers either of donations or contributions to the Company.” Id. at
102-03. This was true even though “[c]ustomers’ payments [were] not
appropriated to the particular construction nor earmarked for it, but [went] into
the Company’s general working funds.” Id. at 100. By contrast, in Brown Shoe,
the transfers resulted from philanthropic efforts “by certain community groups
as an inducement to the location or expansion of petitioner’s factory operations”
in the community. 339 U.S. at 584. The Court explained that these transfers
were capital contributions because the philanthropic groups “neither sought nor
could have anticipated any direct service or recompense whatever, their only
expectation being that such contributions might prove advantageous to the
community at large.” 339 U.S. at 591. In this manner, the Court indicated that
to be compensation for services, a transfer does not need to be directly or
immediately used for the provision of services; nor does it need to benefit all
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transferors commensurately with their individual contributions. Instead,
consistent with the Court’s statements that a transferor’s intent ultimately
determines the tax character of the transfer, whether a payment is
compensation for services turns on whether it is given in expectation of a specific
service to the transferor or whether it is given simply to pay for or generate a
service to others.
Applying those precepts here, the USF payments were compensation to
AT&T for the specific and quantifiable services it performed for high-cost and
lower-income users as well as for developing and maintaining universal service,
which renders a service for all consumers by making the telecommunications
system more useful and valuable to every customer. The state and federal USFs
draw their monies from assessments levied by the FCC and state utility
commissions against the telecommunications companies,3 which are then passed
along to customers. See Rural Cellular Ass’n, 588 F.3d at 1099; see also Citizens’
Util. Ratepayer Bd. v. State Corp. Comm’n, 956 P.2d 685, 713 (Kan. 1998). AT&T
acknowledges, consistent with the FCC’s independent findings, that the
expansion of universal telephone service provides a service to all telephone users
by “mak[ing] the network more valuable to all,” in that it allows all customers
to reach a greater number of individuals. See Federal-State Joint Board on
Universal Service, 12 FCC Rcd. 8776, ¶ 8. Thus, the USFs are in effect a vehicle
or conduit by which the telecommunications carriers are compensated for the
specific, quantifiable services that they provide directly to high-cost and
lower-income customers and for the universal, system-wide service they provide
in making those customers accessible to other consumers in the system. It is
enough to say that it overtaxes imagination to regard customers who furnished
funds for telecommunications service, which are then used by the
3
See 47 U.S.C. § 254(d); Cal. Pub. Util. Code § 270(b); Kan. Stat. § 66-2008(a); Tex.
Util. Code Ann. § 56.022(a).
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telecommunications companies to improve services, as makers either of
donations or contributions to the company. Cf. Detroit Edison, 319 U.S. at 102.
C. Finally, AT&T fails to demonstrate that the payments it received from the
federal and state USFs became a permanent part of AT&T’s working capital
structure, as is demanded by the first CB&Q requirement. See CB&Q, 412 U.S.
at 413. AT&T acknowledges that a payment becomes “a permanent part of its
‘working capital structure’ if the funds are committed for investment and use in
the business.” AT&T Opening Br. 24-25 (emphasis added). AT&T does not
contest, however, that the USF payments went, un-earmarked, into its general
revenue accounts where they were available for a multitude of purposes other
than contributions to capital. AT&T argues that the legislative and regulatory
background for the payments indicates that they were intended to increase
AT&T’s investment in capital assets. However, universal service support did not
provide money exclusively for the specific purpose of making capital
improvements, such as building an airport or locating and constructing a plant.
Instead of providing the money only for that type of investment, the
governments provided supplemental income so as to provide the telephone
companies an enhanced return on their investment. Through universal support,
the governments provided an incentive for taxpayers such as AT&T to extend
the network by investing in additional construction. But the payments were
made as supplements to income, not direct contributions to capital committed
exclusively to such construction. See Coastal Utils., 514 F.3d 1184, aff’g 483 F.
Supp. 2d at 1248.
Therefore, having failed to demonstrate that the USF payments had more
than one or two of the essential characteristics of a capital contribution instead
of four or more as prescribed by CB&Q, AT&T has not carried its burden to show
that the USF support payments were capital contributions under the CB&Q
test.
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CONCLUSION
For these reasons, the judgment of the district court is AFFIRMED.
25