City of Peoria v. Brink's Home Security, Inc.

JOHNSEN,

dissenting.

¶ 35 I respectfully dissent because in my view, A.R.S. § 42-6004(A)(2) bars the Cities from imposing transaction privilege taxes on income Taxpayer receives for performing its home-security monitoring services.

1. The Transmissions by Which Taxpayer Performs Its Monitoriny Services Are Interstate Telecommunications.

¶ 36 As set forth in the majority’s decision, A.R.S. § 42-6004(A)(2) provides that a city “shall not levy a transaction privilege ... tax on [interstate telecommunications services, which include that portion of telecommunications services, such as subscriber line service, allocable by federal law to interstate telecommunications service.” Although our legislature has not defined “interstate telecommunications services,” like the majority, I understand that if a communication constitutes an intrastate telecommunication, it is not an interstate telecommunication. See supra ¶ 14. More specifically, because “intrastate telecommunications services” means “transmitting ... information ... if the information transmitted originates and terminates in this state,” see A.R.S. § 42-5064(E)(4), if the information transmitted by telecommunication does not “originate and terminate” within the state, the transmission must constitute an interstate transmission, which A.R.S. § 42-6004(A)(2) states the Cities may not tax.

¶37 According to the record, the triggering of an alarm in the home of one of Taxpayer’s customers causes three telecommunications transmissions. In the first transmission, the security system automatically contacts a facility in Texas manned by employees that Taxpayer calls “monitoring professionals.” The purpose of this first transmission is to alert Taxpayer that a customer’s home alarm has been triggered. The second transmission occurs when a “monitoring professional” in Taxpayer’s facility in Texas telephones the customer to alert the customer to the alarm. During this conversation, Taxpayer’s employee determines whether the alarm is false or whether there is reason to contact authorities. The third transmission then occurs: When appropriate, depending on the preceding conversation with the customer, the monitoring employee places an emergency call to summon first responders to the customer’s home.

¶ 38 Unlike the majority, I conclude these communications are three distinct transmissions, not three segments of a single transmission. The automated transmission uses telephone connections to deliver information from Arizona to Texas; the other two transmissions are telephone calls that in my mind are no different in kind than any other telephone calls placed from Texas to Arizona. Just as A.R.S. § 42-6004(A)(2) would not permit a city to impose a transaction privilege tax on fees a telephone provider receives for calls placed between Arizona and Texas and vice versa, the statute does not permit a city to tax the monitoring services Taxpayer provides by way of those telephone transmissions.

¶ 39 Although the majority relies on People’s Choice, in my view there is little in that case or in any other Arizona decision that guides our analysis of whether the telecommunications at the heart of Taxpayer’s business are intrastate communications or interstate communications. Interpreting A.R.S. § 42-6004(A)(2), People’s Choice held the statute does not permit imposition of transaction privilege taxes on the gross income from sales, tolls, subscriptions and subscriber services received by a business engaged in interstate telecommunications. The question in that case, however, was not what interstate telecommunications means, but whether a transaction privilege tax may be imposed on income a business engaged in interstate communications receives in access or subscriber fees. The city in that case argued that it taxed not the “actual transmissions” by the business but only the fees the *287business charged subscribers for access to the service. People’s Choice, 202 Ariz. at 402-03, ¶ 4, 46 P.3d at 413-14. Citing A.R.S. § 42-5064(B), our supreme court held § 42-6004(A)(2) precludes imposition of a transaction privilege tax on such a business’s gross income from sales, tolls, subscriptions and subscriber services. Id. at 404, ¶ 8, 46 P.3d at 415.

¶ 40 It was in this context that the supreme court held that “the phrase ‘interstate telecommunications services’ requires a more expansive meaning.” Id. at 403, ¶ 6, 46 P.3d at 414. The People’s Choice court did not address the issue presented here, which is whether certain transmissions are interstate telecommunications or intrastate telecommunications. The taxpayer in People’s Choice received television programming by satellite and transmitted that programming to its customers over microwave frequencies. Id. at 402, ¶ 2, 46 P.3d at 413. The program packages the taxpayer sold its customers contained “both local and out-of-state programs.” Id. Nevertheless, without analysis, the court observed that like other cable television businesses, the taxpayer “primarily provide[d] interstate programming.” Id. at 404, ¶ 10, 46 P.3d at 415.

¶ 41 In Cable Plus Co. v. Arizona Department of Revenue, 197 Ariz. 507, 4 P.3d 1050 (App.2000), this court addressed whether a television company engaged in interstate or in intrastate telecommunications when it broadcast to Arizona subscribers programs it received via satellite. Reasoning that under those circumstances, it was “the origination point of the information content that determines the applicability of the intrastate telecommunications tax,” we concluded the taxpayer in that case was engaged in interstate telecommunications because the programming it broadcast originated exclusively outside the state. Id. at 510, ¶ 14, 4 P.3d at 1053.

¶ 42 Of course we do not deal here with transmissions of television programs such as were at issue in People’s Choice and Cable Plus. The first of the three transmissions involved in Taxpayer’s monitoring services may be akin to the television programming at issue in People’s Choice or Cable Plus in that it is a packaged message (i.e., a home alarm has been triggered at a particular address). But the pair of telephone calls that follow are in the ordinary course different in kind. They are not transmissions of pre-packaged information but conversations in which persons located in two different states exchange information (i.e., Taxpayer to customer: “Are you all right?” Customer: “I think I heard an intruder and I’m hiding under my bed— please call for help.”) or instructions (i.e., Taxpayer to first responders: “We’ve received an alarm at such-and-such address. Please respond to the home. The homeowner is present and hiding under the bed awaiting you.”)

¶ 43 Viewed in this manner, it seems to me that these exchanges are simple telephone calls that are not subject to municipal transaction privilege taxation because they are interstate communications, made from one state to another. In the language of the statute, they are not transmissions of information that both “originates and terminates in this state.” A.R.S. § 42-5064(E)(4). The first transmission is effectively an automated call for help sent from Arizona to Texas. The second two transmissions are conversations in which Taxpayer offers to perform and performs services for the customer from whose home the electronic call for assistance originated. Suppose the taxpayer in this case were a concierge service located in Texas that offered quick long-distance help to customers with travel plans or restaurant deliveries. Arizona residents could call this company, for example, to arrange to have a rental car brought to their home or to have a restaurant in North Phoenix deliver a meal. In my hypothetical scenario, as in this case, the out-of-state taxpayer performs services for customers in Arizona via telephone calls placed in one state and received in another. I do not think it could be argued that my hypothetical taxpayer was engaged in intrastate telecommunications, and I think the same is true with respect to the Taxpayer in this case. The majority argues that while the monitoring service necessarily begins with a transmission from Arizona, Taxpayer’s “monitoring professionals” could be located anywhere. Supra ¶20. True enough, but *288the fact is that they are not located in Arizona, and my view is that as a result, telecommunications to them from customers in Arizona and from them to customers and first responders in Arizona necessarily are interstate in nature.

¶ 44 I also believe the majority’s conclusion that the three transmissions that occur after a home alarm is triggered constitute a “single loop” disregards that, as described above, the three telephone calls at issue do not transmit the same information. While the initial automated transmission contains a simple alert that an alarm has been triggered, the two transmissions that follow are conversations that include the fact that an alarm has been triggered but which also necessarily include a give and take of other information concerning what action should be taken as a result of the alarm.

¶ 45 The Cities argue, however, that A.R.S. § 42-6004(A)(2) prohibits them from taxing only interstate telecommunications services that federal law treats as interstate telecommunications. They base this argument on the language of the statute, which states: A city ... shall not levy a transaction privilege, sales, use or other similar tax on:

❖ * * *
2. Interstate telecommunications services, which include that portion of telecommunications services, such as subscriber line service, allocable by federal law to interstate telecommunications service.

The Cities’ contention is misguided. The legislature’s use of the word “include” in this context means that what follows is among the services that are excluded from taxation, or a partial list of the services that are excluded. See Black’s Law Dictionary 777 (8th ed.2004) (“include” means “[t]o contain as a part of something”; “including typically indicates a partial list”); Security Sav. & Loan Ass’n v. Milton, 171 Ariz. 75, 77, 828 P.2d 1216, 1218 (App.1991) (because “include” is “ordinarily a term of enlargement, not of limitation,” “it is generally improper to ... conclude that items not specifically enumerated are excluded”).6

2. The Object of the Tax Is Telecommunications.

¶ 46 Finally, I briefly address an issue the majority is not required to resolve, which is the Cities’ argument that their imposition of transaction privilege taxes on Taxpayer does not implicate A.R.S. § 42-6004(A)(2) because they are taxing monitoring services, not telecommunications. The Cities argue Taxpayer’s business for the most part is not really the monitoring it performs via telecommunication transmissions from Texas, but instead, is the alarm system Taxpayer installs in its customers’ homes or even the signs and decals it gives its customers to place in their yards and on their homes to warn potential intruders to stay away.

¶ 47 As our supreme court said in People’s Choice, however, when a taxpayer is in the business of interstate telecommunications, A.R.S. § 42-6004(A)(2) not only precludes taxing that taxpayer’s telecommunication services; it also precludes taxing its related services, as well. 202 Ariz. at 404, ¶ 8, 46 P.3d at 415. Because the in-home equipment and other security system trappings that Taxpayer provides its customers would be useless without the monitoring that Taxpayer performs from Texas, the relevant focus is on the telecommunications services that Taxpayer performs, not on the equipment or the “show” of a security system that Taxpayer also provides its customers. Indeed, as Peoria argues (in another context in this appeal), “the ‘heart and soul’ of the monitoring business is getting the information about the event to the homeowner and the local police and fire departments.”

¶ 48 This conclusion is consistent with the Model City Tax Code, which taxes home security companies as providers of telecommunications services. As recited supra ¶ 13, *289§ 14-470(a)(2)(D) of the Model City Tax Code provides that the “[g]ross income from the business activity of providing telecommunication services to customers within this City shall include ... [cjharges for monitoring services relating to a security or burglar alarm system located within the City where such system transmits or receives signals or data over a communications channel.” See Peoria City Code § 12-470(a)(2)(D); Phoenix City Code § 14-470(a)(2)(D); see also Peoria City Code § 12-100 and Phoenix City Code § 14-100 (defining “telecommunication service” to mean “any service or activity connected with the transmission or relay of information ... over a communications channel”).7

3. Conclusion.

¶49 For these reasons, I would reverse the tax court and hold that the Cities’ imposition of transaction privilege taxes on Taxpayer’s income received from customers in Peoria and Phoenix violates A.R.S. § 42-6004(A)(2). I also would direct reimbursement of Taxpayer’s attorney’s fees on the ground that the Cities’ position in this matter was “not substantially justified.” See Peoria City Code § 12-578(a); Phoenix City Code § 14-578(a).

. That a comma precedes the “which include” clause drives home the legislature’s intent that telecommunications services allocable by federal law as interstate services simply are among those services to which the exclusion applies. See Chicago Manual of Style ¶ 6.36 (15th ed.2003) (dependent clause following a main clause “should not be preceded by a comma if it is restrictive, that is, essential to the meaning of the main clause”).

. Neither City argues that transaction privilege taxes are due from Taxpayer on any amounts a customer pays to have monitoring equipment installed in the home.