Rapides Parish Communications District v. Centurytel, Inc.

• Court: Louisiana Court of Appeal
• Decided: June 1, 2005
• Docket: CA-0005-0134
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

05-0134

RAPIDES PARISH COMMUNICATIONS DISTRICT

VERSUS

CENTURY CELLUNET OF NORTH LOUISIANA CELLULAR LIMITED PARTNERSHIP D/B/A CENTURY CELLUNET

************

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 202,580 HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Jimmie C. Peters, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Field V. Gremillion, III Attorney at Law Post Office Box 731 Alexandria, LA 71309 (318) 445-6021 COUNSEL FOR PLAINTIFF/APPELLANT: Rapides Parish Communications District

Walter C. Dunn The Boles Law Firm Post Office Box 2065 Monroe, LA 71207 (318) 388-4050 COUNSEL FOR DEFENDANT/APPELLEE: Century Cellunet of North Louisiana Cellular Limited Partnership d/b/a Century Cellunet PETERS, J.

The Rapides Parish Communications District appeals a judgment dismissing

its claim against Century Cellunet of North Louisiana Cellular Limited Partnership

d/b/a Century Cellunet (Century Cellunet) for, among other relief, 911 service

charges it contends that Century Cellunet should have collected from its wireless

customers. For the following reasons, we affirm.

LITIGATION BACKGROUND

This litigation has as its beginnings the Louisiana Legislature’s passage in

1983 of 1983 La. Acts No. 550, § 1 (Act 550), which enacted La.R.S. 33:9101

through La.R.S. 33:9106, establishing communications districts and providing for

their operation and financing. Louisiana Revised Statutes 33:9101 provided that

“[t]he governing authority of any parish may by ordinance create communications

districts composed of any part of all of the territory lying wholly within the parish.”

Pursuant to La.R.S. 33:9102, the stated purpose for creating such a district was “to

shorten the time required for a citizen to request and receive emergency aid.” To that

end, La.R.S. 33:9102 established the number 911 “as the primary emergency

telephone number for use in communications districts” established pursuant to the

statutory authority.

Anticipating a need for a financing source to operate a communications district,

La.R.S. 33:9106(B)(1) provided in part: “The governing authority of the district may,

when so authorized by a vote of a majority of the persons voting within the district

in accordance with law, levy an emergency telephone service charge in an amount not

to exceed five percent of the tariff rate.” Louisiana Revised Statutes 33:9106(B)(3)

provided that the imposed charge “shall be imposed only upon the amount received

from the tariff rate exchange access lines.” Louisiana Revised Statutes 33:9106(B) charged the service supplier, defined in La.R.S. 33:9106(A)(4) as “any person

providing exchange telephone service to any service user throughout the parish,” with

the duty of collecting the service charge. Additionally, the term “exchange access

facilities” was defined in La.R.S. 33:9106(A)(1) as “all lines, provided by the service

supplier for the provision of local exchange service, as defined in existing general

subscriber services tariffs.”

On February 18, 1986, and pursuant to the authority of Act 550, the Rapides

Parish Police Jury adopted an ordinance creating a parish-wide communications

district known as the Rapides Parish Communications District (District). At a special

election held on November 4, 1986, the voters of Rapides Parish authorized the

District to “levy and collect a special emergency telephone surcharge not to exceed

5% of the tariff rate for local telephone service supplied within the district for the

purpose of establishing, maintaining and operating the 911 emergency telephone

system . . . .” Importantly, at the time Rapides Parish residents voted to authorize the

service charge, La.R.S. 33:9101 through La.R.S. 33:9106 expressly referred to “lines”

and “exchange telephone service,” but did not expressly refer to wireless service,

such as cellular phone service.

However, by 1997 La. Acts No. 758, § 1 (Act 758),1 the legislature amended

the law to, among other things,2 expressly refer to wireless service in La.R.S.

33:9131.6.3 Notably, La.R.S. 33:9131.6(B)(1) retained the requirement that an

1 The communications district statutes have undergone various amendments, but we will refer only to those amendments that are at issue in this matter. 2 Act 758 expressly provided for the inclusion of the communications district in Rapides Parish within the meaning of “district” as used in that Section. 3 Louisiana Revised Statutes 33:9131.6 was originally designated as La.R.S. 33:9131.5, but its designation was changed pursuant to the statutory revision authority of the Louisiana State Law Institute.

2 emergency telephone service charge be submitted for vote and authorization by a

majority of the persons voting within the district. Additionally, La.R.S. 33:9131.6(B)

retained the requirement that the service supplier collect the service charge, while

La.R.S. 33:9131.6(A)(5) this time expressly defined a service supplier as including

a person providing wireless service.

On October 8, 1997, and acting upon the authority of Act 758, the District

passed a resolution converting the service charge to a flat fee of sixty-three cents per

month per service number, providing for the payment of the service charge by the

service user of “non-fixed location wireless telecommunications service,” and

providing for the collection of the service charge by the service supplier. The District

took this action without submitting to the voters the issue of the service charge

assessment in connection with wireless service. By letters issued in September and

October 1997, the District notified Century Cellunet of the implementation of its

resolution and requested Century Cellunet’s compliance.

On December 3, 1997, Century Cellunet responded with a letter to the District,

noting “continued discussion” about the new legislation and “whether a vote is

required prior to implementation” and noting that an opinion had been requested from

the attorney general. Nevertheless, Century Cellunet agreed to implement the service

charge provided that the District would execute a contract which contained, among

other items, special provisions covering the contingency of a subsequent

determination that the service charge was required to first be submitted to the voters.

Specifically, Century Cellunet sought some protection in the event it was ultimately

determined that the service charge on its wireless or cellular customers was not

3 authorized under Act 758 without majority vote. The District declined to sign the

contract, and Century Cellunet failed to implement collection of the service charge.

The District and Century Cellunet continued negotiations in an attempt to

resolve the matter. However, on December 4, 1998, the Louisiana Attorney General’s

office issued Opinion 97-500-A in which it concluded that “prior to the imposition

of such a surcharge on wireless or cellular service, an election must be held in

accordance with the provisions of LSA-R.S. 33:9131.6 to authorize same.”

Thereafter, Century Cellunet notified the District that, in light of the attorney general

opinion, it would take no further action to implement the service charge on its

wireless or cellular customers in the absence of an electorate vote.

The legislature further amended the statutes at issue by 1999 La. Acts No. 1029

(Act 1029), which, among other things, repealed La.R.S. 33:9131.6 and enacted

La.R.S. 33:9109 relative to service charges for wireless service. Specifically, La.R.S.

33:9109(C)(3)(b) dispensed with the requirement of voter approval of a service

charge for wireless service if the communications district already levied any

emergency telephone service charge on local telephone service pursuant to voter

approval. On September 14, 1999, the District passed a resolution attempting to take

advantage of Act 1029 with regard to wireless or cellular services. Century Cellunet

then implemented collection of the service charge effective November 30, 1999.

Thus, the only collection period at issue is the period from October 8, 1997, when the

District passed its resolution under the authority of Act 758, and January 2000.4

On December 12, 2000, the District filed suit against Century Cellunet, seeking

to recover, among other relief, service charges on Century Cellunet’s wireless and

4 Although Century Cellunet asserted that it implemented collection of the service charge effective November 30, 1999, the District contested the implementation through January 2000.

4 cellular customers from October 8, 1997, through January of 2000. Century Cellunet

responded with an answer and amendments to its answer as well as a peremptory

exception of no right of action. Essentially, Century Cellunet defended the suit by

raising the issue of the constitutionality of La.R.S. 33:9109(C), which it asserted was

a sales tax requiring approval by majority vote of the voters in Rapides Parish, and

by questioning the right of the District to collect a service charge on wireless service

under former La.R.S. 33:9131.6 without prior vote.

After an October 12, 2004 trial on the merits, the trial court rendered judgment

in favor of Century Cellunet and dismissed the District’s suit on the basis that former

La.R.S. 33:9131.6 was a taxing statute requiring strict construction and that the

statute was sufficiently ambiguous to preclude enforcement of the collection of the

service charge. On November 5, 2004, the trial court signed a judgment dismissing

the District’s claims, and the District has appealed that judgment.

OPINION

We first note that the trial court did not address the constitutional issue raised

in the pleadings. Additionally, neither party raises questions on appeal regarding the

constitutionality of current La.R.S. 33:9109. Thus, that issue is not properly before

us, so we will not address that issue at this time.

The District argues in its sole assignment of error that “the Trial Court was

clearly wrong in finding that Act 758 [La.R.S. 33:9131.6] was a ‘Taxing Statute’ and

as such, was so ambiguous as to relie[ve] Century of its obligation to collect the tariff

and remit same to District.” Century Cellunet responds to this argument by asserting

that the service charge is a sales tax. Although specifically raised by the parties, a

determination of whether or not former La.R.S. 33:9131.6 was a “Taxing Statute” is

5 not essential to the disposition of this case, and therefore we will not address this

issue in resolving the litigation now before us. Instead, we resolve this appeal by

application of the clear language of former La.R.S. 33:9131.6(B)(1).

Specifically, we recognize that former La.R.S. 33:9131.6(B)(1) contained the

requirement of authorization “by a vote of a majority of the persons voting within the

district in accordance with law” before a communications district was entitled to levy

a service charge. The focus of our inquiry is on whether the added references to

wireless service in Act 758, the source of La.R.S. 33:9131.6, required a separate vote

for the levy of a service charge on wireless service.

“It is a well-established principle of statutory construction that absent clear

evidence of a contrary legislative intention, a statute should be interpreted according

to its plain language.” Cleco Evangeline, LLC v. La. Tax Comm’n, 01-2162, p. 5 (La.

4/3/02), 813 So.2d 351, 354. A law must be applied as written and no further

interpretation made in search of legislative intent, when the law is clear and

unambiguous and its application does not lead to absurd consequences. Id. In

interpreting a statute, a court must give the words of a law their generally prevailing

meaning. Id. Further, the meaning of a word in a statute must be determined within

the context of the whole statute. Cox Cable New Orleans, Inc. v. City of New

Orleans, 624 So.2d 890 (La.1993).

As previously stated, La.R.S. 33:9106(B)(1), as enacted by Act 550, authorized

a communications district to “levy an emergency telephone service charge in an

amount not to exceed five percent of the tariff rate,” when authorized to do so by

majority vote of the persons voting within the district. (Emphasis added.) At that

time, La.R.S. 33:9106(A)(2) defined tariff rate as “the rate or rates billed by a service

6 supplier . . . which represent the service supplier’s recurring charges for exchange

access facilities.” Additionally, La.R.S. 33:9106(A)(1) defined exchange access

facilities as “all lines, provided by the service supplier for the provision of local

exchange service.” (Emphasis added.) Further, La.R.S. 33:9106(A)(4) defined

service supplier as “any person providing exchange telephone service to any service

user,” and La.R.S. 33:9106(A)(5) defined service user as “any person . . . who is

provided exchange telephone service.” (Emphasis added.)

Thus, according to the plain language of former La.R.S. 33:9106(B)(1), a

communications district was authorized to levy a telephone service charge upon

authorization by majority vote. The statute expressly referred to “lines” and

“telephone service.” In 1983, the generally prevailing meaning of those terms would

not have encompassed wireless service. In fact, the 1986 edition of WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY defined “telephone” in part as “a device in

which the voice or sound causes in a thin diaphragm vibrations that are directly

transmitted along a wire or string connecting it to a similar diaphragm thus

reproducing the sound.” (Emphasis added.) Additionally, it defined “line” in part as

“a wire or pair of wires connecting one telegraph or telephone station with another

or a whole system of such wires.” (Emphasis added.)

Contextually, Act 550 provided a mechanism for parishes “to shorten the time

required for a citizen to request and receive emergency aid.” La.R.S. 33:9102

(emphasis added). However, as recognized by the supreme court in Radiofone, Inc.

v. City of New Orleans, 616 So.2d 1243, 1248 (La.1993), “cellular telephone services

. . . were not in operation in Louisiana before the 1980’s.” Moreover, even though

wireless service began to be in operation in Louisiana in the 1980’s, the average

7 “citizen,” as contemplated by Act 550, did not even have wireless service in the form

of cellular phone service. We note that in Radiofone, Inc., 616 So.2d 1243, the

supreme court concluded that a preexisting tax imposed in a 1968 ordinance neither

authorized nor contemplated taxes for cellular phone service. Additionally, in Cox

Cable New Orleans, Inc., 624 So.2d 890, the supreme court held that cable television

service was not contemplated within the term “production” for purposes of a tax

imposed in 1940. Likewise, we conclude that La.R.S. 33:9106 did not encompass or

even contemplate wireless service at the time it was enacted.

On the other hand, La.R.S. 33:9131.6, as enacted by Act 758 in 1977, for the

first time referred to wireless service. Specifically, La.R.S. 33:9131.6(A)(3) defined

exchange access facilities as “all lines or their equivalent wireless service.”

(Emphasis added.) Additionally, La.R.S. 33:9131.6(A)(5) defined service supplier

as “any person providing a landline exchange telephone service or cellular telephone

or telecommunications service, specialized mobile radio service, personal

communications service, or any form of wireless telephone or telecommunications

service,” and La.R.S. 33:9131.6(A)(6) defined a service user as any person who is

provided such service. (Emphasis added.) Louisiana Revised Statutes 1:9 states:

“Unless it is otherwise clearly indicated by the context, whenever the term ‘or’ is used

in the Revised Statutes, it is used in the disjunctive and does not mean ‘and/or.’”

Thus, it is clear that Act 758 did not clarify preexisting law but modified it to the

extent of additionally including wireless service within the purview of its purposes.

Act 758 was in keeping with the times, as wireless service had by that time become

readily available to the average citizen.

8 Importantly, in 1986, the Rapides Parish voters authorized the District to “levy

and collect a special emergency telephone surcharge” pursuant to Act 550.

(Emphasis added.) As set forth above, wireless service was not included within the

generally prevailing meaning of “telephone service” as the term was then understood.

Although Act 758’s La.R.S. 33:9131.6(B) retained the same grant of authority as Act

550’s La.R.S. 33:9106(B) for a communications district to “levy an emergency

telephone service charge” upon majority vote, it is clear that by that time the term

“telephone service” had a bifurcated meaning, i.e., both landline and wireless service.

(Emphasis added.) Because La.R.S. 33:9131.6(B) provided for the first time a

mechanism for communications districts to fund emergency telephone service for

wireless users, the communications districts were required to obtain authorization by

majority vote of the people before levying a service charge for wireless service.

The voters of Rapides Parish have voted to authorize the District to levy a

service charge on landline service only and have not yet voted to authorize the

District to levy a service charge for wireless service. Accordingly, the District had

no authority to levy the service charge at issue and require Century Cellunet to

implement collection of the service charge. Thus, while we analyze it differently, we

find no error in the trial court’s judgment and therefore affirm it.

DISPOSITION

For the foregoing reasons, we affirm the judgment below and tax costs to the

Rapides Parish Communications District in the amount of $697.50.