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., 711 N.E.2d 79, 82 (Ind.Ct.App.1999). Presumably because failure to impose the fee on increasingly available wireless means of telecommunication via land and satellite-based systems would create an intolerable competitive situation, the City chose to impose the fee on all providers, irrespective of whether they make any use of a city right-of-way or not. We have a commonly understood word for a fee for “access to the market” within a given governmental unit. It is called a tax. See Diginet, Inc. v. Western Union ATS, Inc., 958 F.2d 1388, 1399 (7th Cir.1992) (Under Illinois law, “[i]f the fee is a *161reasonable estimate of thecost imposed by the person required to pay the fee, then it is a user fee and is within the municipality’s regulatory power. If it is calculated not just to recover a cost imposed on the municipality or its residents but to generate revenues that the municipality can use to offset unrelated costs or confer unrelated benefits, it is a tax, whatever its nominal designation”).
The majority relies on Ace Rent-A-Car, Inc. v. Indianapolis Airport Authority, 612 N.E.2d 1104 (Ind.Ct.App.1993), for the proposition that a tax “entitles the taxpayer to receive nothing in return, other than the rights of government which are enjoyed by all citizens” while “a user fee is optional and represents a specific charge for the use of publicly-owned or publicly-provided facilities or services.” Id. at 1108 (citations omitted). The majority then observes that Ameritech “receives considerably more ‘than the rights of government which are enjoyed by all citizens,’ when it conducts business in Gary rights-of-way.” 732 N.E.2d at 156 (citations omitted). This may be true of Ameritech', which operates a traditional telephone system over wires and poles in public rights-of-way. But it ignores the point that the tax is imposed on all telecommunications providers who pay for “access to the market,” including those who receive no benefit that is not shared with the general public. I believe the Court of Appeals correctly held this “fee” beyond the power of the City under the Home Rule Act, and that the 1998 legislation, plainly a response to this measure, confirms that reading.
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.