explaining that central assessment “had its origins in unit valuation, an assessment method that . . . was devised to address the difficult task of valuing a business . . . when the property of the business is located in more than one taxing district[,]” and “developed to remedy the perceived problems with unit valuations performed by local assessors”
How later courts described this case
- explaining that central assessment “had its origins in unit valuation, an assessment method that . . . was devised to address the difficult task of valuing a business . . . when the property of the business is located in more than one taxing district[,]” and “developed to remedy the perceived problems with unit valuations performed by local assessors”
- concluding that legislature would have intended term “arthritis” to encompass core aspects of condition, as revealed by medical sources; rejecting argument that term should be limited to a particular form of arthritis— osteoarthritis—when legislative history revealed no intent for more limited form
- determining at the outset of its analysis that phrase “data transmission services” has no familiar or common meaning; rejecting as “futile” an approach that would require the court to “cobble together definitions of the individual words to make collective sense of the phrase as a whole”
- stating the "assumption that, if the legislature did not give the term a specialized definition, the dictionary definition reflects the meaning that the legislature would naturally have intended"
Written by the judges who cited it.
The opinion
282 October 2, 2014 No. 65
IN THE SUPREME COURT OF THE
STATE OF OREGON
COMCAST CORPORATION,
Plaintiff-Respondent
Cross-Appellant,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant-Appellant
Cross-Respondent.
(TC 4909; SC S059764)
En Banc
On appeal from the Oregon Tax Court.*
Argued and submitted January 8, 2013.
Marilyn J. Harbur, Senior Assistant Attorney General,
Salem, argued the cause for appellant/cross-respondent.
With her on the brief was John R. Kroger, Attorney General.
Eric S. Tresh, Sutherland Asbill & Brennan LLP, Atlanta,
Georgia, argued the cause for respondent/cross-appellant.
With him on the briefs were Joseph M. DePew, Zachary T.
Atkins, David L. Canary and Cynthia M. Fraser, Garvey
Schubert Barer, Portland.
Jed Tomkins, Portland, filed a brief on behalf of amicus
curiae Association of Oregon Counties.
Sean E. O’Day and Maja K. Haium, Salem, filed a brief
on behalf of amicus curiae League of Oregon Cities.
Scott G. Seidman and Mark F. LeRoux, Tonkon Torp
LLP, Portland, and Jeremy N. Kudon, Orrick Herrington &
Sutcliffe LLP, New York, New York, filed a brief on behalf of
amici curiae DIRECT TV and DISH Network.
______________
* 20 OTR 319 (2011).
Cite as 356 Or 282 (2014) 283
Mark Trinchero and Alan J. Galloway, Davis Wright
Tremaine LLP, Portland, filed a brief on behalf of amicus
curiae Associated Oregon Industries.
Ryan R. Nisle and John F. Neupert, Miller Nash LLP,
Portland, filed a brief on behalf of amicus curiae Oregon
Cable Telecommunications Association.
Julia E. Markley and Gregg Barton, Perkins Coie LLP,
Portland, and Chérie R. Kiser, and Angela F. Collins, Cahill
Gordon & Reindel LLP, Washington DC, filed a brief on
behalf of amicus curiae Cable One, Inc.
LINDER, J.
The decision of the Tax Court is reversed, and the case is
remanded to that court for further proceedings.
Comcast contested an Opinion and Order issued by the Director of the
Department of Revenue, which concluded that the property that Comcast uses
to provide its cable television and internet access services is subject to central
assessment by the department. The chief issue was whether either the cable tele-
vision or the internet access services qualifies as a “data transmission service”
and thus is a “communication” business or service under the central assessment
statutes. The Tax Court concluded that Comcast’s internet access service, but not
its cable television service, is a data transmission service. The Tax Court further
concluded that Comcast’s cable television service is the primary use of the prop-
erty that Comcast uses for both services, and therefore none of the property used
to provide both services is subject to central assessment by the department. Held:
(1) The legislature intended the phrase “data transmission services,” as used in
ORS 308.505(2), to have a technical meaning drawn from the telecommunica-
tions field; (2) a “data transmission service” is a “service[ that provide[s] the
]
means to transmit data from one computer or computer-like device to another
across a transmission network”; and (3) both Comcast’s cable television and
internet access services are “data transmission services,” and therefore qualify
as “communication” businesses or services, making the property that Comcast
uses for those services subject to central assessment by the department.
The decision of the Tax Court is reversed, and the case is remanded to that
court for further proceedings.
284 Comcast Corp. v. Dept. of Rev.
LINDER, J.
This is a direct appeal from a decision of the Oregon
Tax Court Regular Division (the Tax Court) setting aside an
Opinion and Order issued by the Director of the Department
of Revenue (the department). ORS 305.445. The chief issue
on appeal is whether either Comcast’s cable television ser-
vice or internet access service qualifies as “communication”
under ORS 308.515(1)(h) and is, therefore, subject to central
assessment by the department pursuant to ORS 308.505 to
ORS 308.665. Under ORS 308.505(2), “[c]ommunication”
includes “data transmission services.” In this case, whether
Comcast’s cable television service or internet access service
qualifies as a “communication” service or business depends
on whether either service is a data transmission service.
The Tax Court concluded that Comcast’s internet
access service, but not its cable television service, is a data
transmission service. Comcast Corp. v. Dept. of Rev., 20 OTR
319, 333, 335 (2011). The Tax Court further concluded that
Comcast’s cable television service is the primary use of the
property that Comcast uses for both. Id. at 337. Consequently,
pursuant to ORS 308.510(5), the Tax Court determined that
the property that Comcast uses for the two services was not
subject to central assessment for the 2009-2010 tax year,
contrary to the department’s determination. Id. Both par-
ties appeal. The department contends that both services
are data transmission services, while Comcast urges that
neither service is. For the reasons that follow, we hold that
both the cable television and internet access services qualify
as data transmission services and are, therefore, commu-
nication services subject to central assessment under ORS
308.515(1)(h). Accordingly, we reverse and remand the deci-
sion of the Tax Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts and those that we discuss later
are drawn from the Tax Court opinion, as supplemented
with additional facts derived from our review of the record.
Although the parties dispute the conclusions to be drawn
from the facts, the facts themselves are not significantly
contested.
Cite as 356 Or 282 (2014) 285
Comcast uses real property, tangible personal prop-
erty, and intangible personal property to provide three ser-
vices. Those services are cable television, internet access,
and “voice over internet protocol” (VOIP).1 The cable tele-
vision and internet access services both involve, as the Tax
Court found and Comcast does not dispute, “the commu-
nication of data.” Comcast Corp., 20 OTR at 320. Many of
the major tangible, personal, and real properties owned by
Comcast are used in some way to provide all the services
that Comcast offers, including the cable television and inter-
net access services at issue in this appeal.
As we later describe in additional detail, Comcast’s
cable television service essentially provides video content
(television, movies, and other video programming) to cus-
tomers. The transmitted content or data flows between
Comcast and its customers predominantly in one direction—
from Comcast to the customer. Certain interactive features
cause signals to flow in the opposite direction—from the
customer to Comcast—as well. Those features mainly facil-
itate communication back from Comcast to the customer,
such as transmitting a particular movie to the customer in
response to the customer’s request for it through Comcast’s
on-demand video product. For the most part, the content
transmitted to the customers is either owned by Comcast or
licensed to Comcast by third parties so that Comcast may
transmit it to customers. A significant exception is adver-
tisements, which third parties pay Comcast to transmit
to Comcast’s customers. The revenue generated from local
and national advertisers is a “significant part” of Comcast’s
business, accounting for $1.5 billion of revenue in 2008, for
instance.
Comcast’s internet access service, just as the name
suggests, provides access to the internet. In so doing, the
internet access service facilitates the flow of content princi-
pally between the customer and third parties. In contrast to
its cable television service, Comcast does not own, generate,
or license that content. Instead, the content, which takes the
1
VOIP is effectively telephone service provided via the internet. Comcast
does not dispute the department’s treatment of the VOIP service as a communi-
cation service; thus, only the treatment of the cable television and internet access
services as communication services is at issue in this appeal.
286 Comcast Corp. v. Dept. of Rev.
form of e-mail, documents, video and audio files, and similar
information, is either generated by Comcast’s customers and
sent via Comcast’s internet access service to others, or is
generated by others and accessed by the customer through
Comcast’s service.
For both the cable television and the internet access
services, the content transmitted from Comcast to the cus-
tomer travels through Comcast’s cable plant. The cable plant
consists of tangible property in the form of
“signal receiving, encoding and decoding devices; headends
and distribution systems; and equipment at or near * * *
customer’s homes. The signal receiving apparatus typi-
cally includes a tower, antenna, ancillary electronic equip-
ment and earth stations for reception of satellite signals.
Headends consist of electronic equipment necessary for
the reception, amplification and modulation of signals and
are located near the receiving devices. [The] distribution
system consists primarily of coaxial and fiber-optic cables,
lasers, routers, switches, and related electronic equipment.
[The] cable plants and related equipment generally are
connected to utility poles under pole rental agreements
with local public utilities, although in some areas the dis-
tribution cable is buried in underground ducts or trenches.
Customer premises equipment (“CPE”) consists primarily
of set-top boxes and cable modems.”
Comcast Corp., 2008 Annual SEC Report 16 (2009).
Until recent years, the department did not consider
Comcast’s internet and cable services to be subject to central
assessment. As a result, the property used for the internet
and cable services was subject to local assessment. When
those services were locally assessed in 2008, the maximum
assessed value (MAV) of all Comcast’s tangible property,
real and personal, owned and used in Oregon, was calcu-
lated at $434,084,202. Beginning with the 2009-2010 tax
year, the department treated cable television and internet
access services as “communication” services or businesses
and added Comcast, along with 125 other companies, to the
central assessment roll. As of January 1, 2009, the depart-
ment calculated the real market value (RMV) and MAV of
all Comcast’s property, real and personal, owned and used in
Cite as 356 Or 282 (2014) 287
Oregon, at $1,135,868,000. That 2009 calculation included
the value of Comcast’s intangible property, while the previ-
ous tax year values, which had been calculated through local
assessment, had not. The addition of the value of Comcast’s
intangible property as a result of central assessment was,
in large part, why the assessed value of Comcast’s property
increased so remarkably in 2009.
Comcast initiated this action, contesting the Opinion
and Order issued by the department that centrally assessed
the property that Comcast uses for its internet access and
cable television services. The case went to trial before the
Tax Court. The parties’ arguments to the Tax Court pre-
sented widely divergent views of the meaning of “data trans-
mission services” for purposes of ORS 308.505(2). Suffice
it to say, Comcast argued that “data transmission services”
meant the kind of private line intracompany data transmis-
sion services provided in 1973 by point-to-point microwave
transmissions, which did not include cable television or
internet access. The department, conversely, urged that the
legislature used terminology broad enough to include busi-
nesses and services of all kinds, as long as the service pro-
vides the means to transmit data to and between the cus-
tomer and others, which cable television and internet access
providers (and perhaps many other businesses) do.
The Tax Court was not satisfied with either party’s
interpretation. The Tax Court considered the department’s
interpretation so expansive as to give the department an
ability to set legislative policy in the guise of interpretation.
Comcast Corp., 20 OTR at 326-27. To avoid what it thought
might be the potential unconstitutionality of the statute, the
Tax Court concluded that the statute should be interpreted
more narrowly than the department proposed. Id. at 327.
But the Tax Court also rejected Comcast’s position—which
restricted the statute to “a particular technological form of
data transmission” in the form of private line microwave
service—as too narrow. Id. at 328. The Tax Court reasoned
that the legislature could have expressly limited the stat-
ute to that service by using much more tailored terminol-
ogy; instead, the legislature adopted broader language to
address prospective technological developments. Id.
288 Comcast Corp. v. Dept. of Rev.
After rejecting the parties’ positions, the Tax Court
identified and adopted something of a middle-ground inter-
pretation. In particular, the Tax Court concluded that, by
referring to data transmission “services,” as opposed to data
as a commodity, the statute reached only businesses that,
for a fee, take data owned or generated by one party and
move it to another party. Id. at 332. In effect, the Tax Court
drew a statutory line between companies that are a conduit
for the data of others and companies that sell the data to the
customer as well as provide the conduit for it.
With that interpretation of the statute in place, the
Tax Court concluded that the cable television service is “not
a communication business or a data transmission business
within the meaning of ORS 308.505(2),” because it does not
transmit data or content created by its customers, nor does it
transmit, to any significant degree, content to its customers
from others. Id. at 333. Rather, the cable television service
principally transmits data (e.g., television programming,
movies, and special programming by subscription) that
Comcast itself owns or otherwise has the right to transmit.
The court reached the opposite conclusion, however, with
regard to Comcast’s internet access service. The Tax Court
reasoned that, because the data that flows in the internet
access service is “not data created by Comcast or data as
to which [Comcast] has publication rights,” Comcast’s inter-
net access service is a data transmission service within
the meaning of ORS 308.505(2). Id. at 335. As noted, both
parties, dissatisfied with the Tax Court’s resolution of the
issues, appeal.
On appeal, neither party defends the Tax Court’s
ultimate decision or the reasoning that led to it. Instead,
the parties essentially renew the positions that they
advanced below. The department contends that the legisla-
ture intended the phrase “data transmission services” to be
broadly descriptive of any communication service that uses
a network to transmit electronic data between computers
or other devices capable of decoding and using that data.
Because the legislature also added the words “by whatever
means provided” to the definition, the department argues, it
intended that the means of transmission would not be lim-
ited to any particular technology. As a result, according to
Cite as 356 Or 282 (2014) 289
the department, the statute reaches an open-ended class of
communication services not restricted to a specific technol-
ogy or to the particular way that technology was used or
applied as of 1973.
Comcast’s interpretation lands at the opposite end
of the spectrum. Comcast maintains that the legislature
amended the statute in response to plans by entrepreneurs to
construct a point-to-point (also termed “private line”) micro-
wave communication network along the west coast, including
through Oregon. According to Comcast, “data transmission
services” was added to the statute to describe the particu-
lar service that was prompting the expansion of the point-
to-point microwave infrastructure—specifically, “intracom-
pany” communication of business data. Through that service,
a company could, for a fee, obtain a private line by which the
company could send data between its own geographically dis-
tant offices and branches; the company could not, however,
use that line to exchange data with outside entities or third
parties. Comcast agrees that the legislature did not intend
to limit the statute’s reach to any particular technology by
which intracompany point-to-point data transmission is
accomplished, but urges that data transmission services was
otherwise intended to be limited to that specific service.
II. ANALYSIS
Before turning to the specific question before us, we
begin with an overview of central assessment and how it
differs from local assessment of property. That background
provides helpful context for the statutory interpretation
issue presented.
A. Central Assessment Generally
What we now term “central assessment” had its ori-
gins in unit valuation, an assessment method that emerged
in the latter half of the 19th century. Unit valuation, or
the so-called “unit rule,” was devised to address the diffi-
cult task of valuing a business as a going concern when the
property of the business is located in more than one taxing
district. James C. Bonbright, 2 The Valuation of Property
633 (1937).2 Courts generally disfavored such valuations,
2
Railroad property is a prime example of the kind of property suited to
assessment using the unit rule. Originally, local assessors used unit valuation
290 Comcast Corp. v. Dept. of Rev.
however, because of inaccuracies in the assessment method
and inequities in how it was administered at the local level.
See, e.g., People ex rel. Delaware, Lackawanna & W. R.R. Co.
v. Clapp, 152 NY 490, 495-96, 46 NE 842 (1897) (unit valu-
ation “is misleading and impossible of application with any
approach to justice or accuracy”).
Assessment by a single state assessment body,
so-called “central assessment,” developed to remedy the
perceived problems with unit valuations performed by local
assessors, particularly in the context of railroad assessments.
Bonbright, 2 The Valuation of Property at 637. Foremost
among the solutions presented by central assessment was
that it withdrew “the difficult task of assessing fractional
parts of a railroad and its property from the hands of local
assessors” likely to favor their own district in their assess-
ment. Union Pacific Railway Co. v. Cheyenne, 113 US 516,
522, 5 S Ct 601, 28 L Ed 1098 (1885). Central assessment
also allowed assessors to capture additional value inherent
in certain property. In particular, central assessment made
possible “assessments which would reach those large intan-
gible values, called franchise value or good will, which could
not be effectively taxed by local assessors.” Bonbright, 2
The Valuation of Property at 637 (internal quotation marks
omitted). As the United States Supreme Court explained in
Cleveland Railway Co. v. Backus, 154 US 439, 444, 14 S Ct
1122, 38 L Ed 1041 (1894):
“The true value of a line of railroad is * * the aggregate
*
of those values plus that arising from a connected opera-
tion of the whole, and each part of the road contributes not
merely the value arising from its independent operation,
but its mileage proportion of that flowing from a continuous
and connected operation of the whole.”
Thus, many states set up state boards of assessment for the
purpose of assessing certain property as a single unit on a
statewide or “central” basis.
to value railroad property—usually a segment of track—in their taxing district
as a portion of the property of a particular railroad’s entire business. Bonbright,
2 The Valuation of Property at 635. The value of the railroad property located
in a county was calculated in proportion to the value of the all of the railroad’s
property as a going concern. Telegraph, telephone, pipeline, and other companies
with property that crossed into more than one taxing district also were commonly
assessed using the unit rule. Id.
Cite as 356 Or 282 (2014) 291
Oregon was among those many states. In 1909,
the Oregon Legislature formed the Board of State Tax
Commissioners (the tax board) for the purpose of taxing
certain property as a single unit on a statewide basis. In
particular, the legislature enacted Lord’s Oregon Laws, title
XXVIII, ch VI, § 3614 to 3660 (Oregon Laws 1909, chap-
ter 218), the predecessor statutes to the central assessment
statutes now set out at ORS 308.505 to ORS 308.665. The
duty of the tax board, among other things, was:
“To make an annual assessment * * of the property hav-
*
ing a situs in this state * * * of all railroad companies, sleep-
ing car companies, union station and depot companies,
electric and street railway companies, express companies,
telegraph companies, telephone companies, refrigerator
car companies, oil and tank line companies, and of such
heat, light, power, water, gas, and electric companies as
may be doing business as one system, partly within this
state and partly without, or so doing business in more than
one county of the state.”
Lord’s Oregon Laws, title XXVIII, ch VI, § 3617(15) (1909)
(predecessor to ORS 308.515). The legislature directed the
tax board to value the property subject to its assessment
authority according to the unit rule. Lord’s Oregon Laws,
title XXVIII, ch VI, § 3623 (1909) (board “may value the
entire property, both within and without the [S]tate of
Oregon, as a unit” to ascertain the “actual cash value of the
property assessable by it”).
Oregon’s original central assessment scheme was
consistent with the development of unit valuation and cen-
tral assessment statutes nationally. The legislature sub-
jected two broad categories of property to central assess-
ment. The first encompassed property operated as a network
over a geographically large area, such as the property of
railroad, telegraph, telephone, and pipeline companies. It
also included the property of public utility-type companies,
such as heat, light, power, and water companies, but only
if the utilities did business “as one system” across state or
county lines. Id. § 3617(15). The second category encom-
passed non-networked property that was associated with
the networked property in the first category. Thus, sleeping
292 Comcast Corp. v. Dept. of Rev.
car, refrigerator car, union station, depot, and express3 com-
panies were also subject to central assessment. Id.
Over the next several decades, the statute remained
focused on the two categories of property originally subject
to central assessment, despite additions and deletions of var-
ious types of companies. See, e.g., Oregon Code, title LXIX,
ch 4, § 69-404(15) (1930) (including “private car companies”
and “tank line companies,” and omitting “oil and tank line
companies”), OCLA § 110-505(14) (1940) (including “pipe
line companies, toll bridge companies, heating companies,”
“people’s utility districts and aircraft companies engaged in
air transport of passengers, freight, express or mail”). In
1951, the legislature restructured ORS 308.515 into its cur-
rent form. For the most part, rather than list specific com-
panies that were subject to central assessment, the legis-
lature instead identified the companies in a more general
way by describing the nature of service that they provided
or the business that they were in—that is, all companies
“engaged in performing or maintaining any of the [listed]
businesses or services.” Or Laws 1951, ch 586, § 2. Thus,
the statute listed “railroad transportation,” “telegraph com-
munication,” and “telephone communication” instead of rail-
road, telegraph, and telephone companies specifically. Id.4
The 1951 restructuring generally remains in place today,
although certain specified commodities are now also sub-
ject to central assessment, and the listed commodities, busi-
3
An “express company” was the forerunner of companies today like UPS
and FedEx. An express company, however, did not own the “means of convey-
ance” — it simply carried “packages on passenger and express trains, steamboats
and stages in the care and custody of its employés [sic] who accompany the pack-
ages * * * and simply pays to the railroad companies and the owners of the steam-
boats and stage coaches for the passage of messengers and their accompanying
packages.” Adams Express Company v. Ohio, 165 US 194, 202, 17 S Ct 305, 41 L
Ed 683 (1897).
4
The purpose of the statute and the nature of the property subject to cen-
tral assessment did not change with the 1951 amendments. Property operated
as a network over a geographically large area, such as property involved in rail-
road transportation, electric rail and trackless trolley transportation, telegraph
communication, telephone communication, along with heating, water, gas, and
electric companies, remained subject to central assessment. See Or Laws 1951,
ch 586, § 2 (listing businesses and services). And non-networked property asso-
ciated with the networked property, such as railroad switching and terminal,
sleeping car, refrigerator car, private car, and tank car businesses or services,
along with certain kinds of air and water transportation, also remained subject
to central assessment after the 1951 restructuring. Id.
Cite as 356 Or 282 (2014) 293
nesses, and services subject to central assessment are set
out in paragraphs of a single section of the statute providing
for central assessment of property. ORS 308.515(1).
B. Central Assessment of “Communication” and “Data
Transmission Services”
That overview of central assessment generally and
the evolution of Oregon’s specific central assessment scheme
brings us to the statutes as they exist today. The statutes
that provide for the assessment and taxation of property in
Oregon are consolidated in ORS chapter 308. As a general
matter, Oregon property is assessed in one of two ways—
it is either centrally assessed by the department or locally
assessed by a county assessor. ORS 308.517(5) (all property
not assessed by the department assessed by county assessor
of county in which property situated). As noted, the current
central assessment scheme is codified under ORS 308.505 to
ORS 308.665.5
The particular dispute that we must resolve in
this case involves ORS 308.505 and ORS 308.515. ORS
308.515(1) provides for the central assessment of certain
businesses, services, and commodities:
“The Department of Revenue shall make an annual
assessment of any property that has a situs in this state
and * * is used or held for future use by any company in
*
performing or maintaining any of the following businesses
or services or in selling any of [certain] commodities * * *[.]”
The statute goes on to list the particular services, businesses,
and commodities that are subject to central assessment.
5
The parties cite the 2007 version of the statute, then-numbered ORS
308.505(2). In 2009, the legislature renumbered parts of the statute. As a result,
the definition of communication is now codified as ORS 308.505(3). The legisla-
ture also amended the definition of “communication” in ORS 308.505(3) to remove
the reference to “telegraph communication,” see Or Laws 2009, ch 128, § 3, which
by then effectively had ceased to exist. Those changes were part of a more exten-
sive bill that updated archaic language, reordered definitions, and conformed
wording throughout the central assessment statutes. The legislative history for
the bill makes clear that the department, as the sponsor of the amendments, was
not proposing any substantive change to the statutes. Or Laws 2009, ch 128,
§ 1 (purpose of the 2009 amendments was “to modernize and clarify the central
assessment statutory law, while continuing the central assessment system as it
currently operates”; amendments “do not constitute a change in the policies of
the State of Oregon”). Thus, the deletion of “telegraph communication” has no
bearing on this case. We analyze and refer to the 2007 version of the statute,
then-numbered ORS 308.505(2).
294 Comcast Corp. v. Dept. of Rev.
It bears emphasizing, however, that only the property used
in the business, service, or commodity is assessed (and thus
taxed). The value of the business, service, or commodity
itself is not subject to central assessment.
Until 1973, ORS 308.515(1) specifically included
“telegraph communication” and “telephone communication”
together with other centrally assessed businesses and ser-
vices such as railroad transportation, air transportation,
heating, gas, and electricity. ORS 308.515(1)(a) (1971). In
1973, however, the legislature replaced the references to tele-
graph and telephone communication with the more general
term “communication.” Or Laws 1973, ch 402, § 8 (Senate
Bill 81). Simultaneously, the legislature further described
what “communication” includes in a way that ensured that
telegraph and telephone communication services would con-
tinue to be centrally assessed, but so would additional com-
munication services as well. In particular, the legislature
amended ORS 308.505 to specify that the term “communi-
cation,” as used in the statutes governing central assess-
ment, “includes telephone communication, telegraph com-
munication, and data transmission services by whatever
means provided.” Or Laws 1973, ch 102, § 1 (codified as ORS
308.505(2)).6
As earlier described, the dispute in this case centers
on the 1973 addition to the statute that made “data trans-
mission services by whatever means provided” a commu-
nication service that is subject to central assessment. The
dispute arises now, some 40 years after the 1973 amend-
ments, because the department, until recent tax years, did
6
The parties debate at some length whether the term “includes” as used
in the statute is one of inclusion or limitation. The department argues that
the use of the term “includes” indicates that the statute was intended to be a
nonexclusive list of representative “communication” services, and that services
other than those listed (that is, other than telephone communication, telegraph
communication, and data transmission services) are also centrally assessable if
they qualify more generally as a communication. Comcast argues in response
that “includes” was intended to limit the term “communication” to the services
that are listed. Consequently, in Comcast’s view, if neither its internet access
nor its cable television service qualify as “data transmission services,” which is
the only listed service that they arguably would fit, those services are not cen-
trally assessable. Because we later conclude that both Comcast’s cable television
and internet access services are “data transmission services,” we do not have to
decide whether “communication” services are limited to the ones listed in ORS
308.505(2) or include other services as well.
Cite as 356 Or 282 (2014) 295
not take the position that Comcast’s cable television and
internet access services are data transmission services
within the meaning of ORS 308.505(2). As we will describe
in greater detail later, cable television service existed at the
time of the 1973 amendments, but the technology involved
in delivering that service has undergone significant change
since then. Internet access service, on the other hand, did
not exist at all in 1973. How the policy that the legislature
adopted in 1973 applies to the cable television and inter-
net access services supplied by Comcast today lies at the
heart of the disagreement between the parties. In Comcast’s
view, because “data transmission services” in 1973 were not
used to provide either cable television or internet access ser-
vice, to conclude now that those services are data transmis-
sion services would distort the legislature’s intent. In the
department’s view, the legislature did not intend to limit
“data transmission services” to the particular applications
or uses that existed when the legislature amended the stat-
ute in 1973; rather, such services were intended to encom-
pass any new or evolving business that, from a technological
standpoint, serves its customers through the service of data
transmission.
To resolve the parties’ disagreement, we use our
familiar methodology for interpreting statutes. In particu-
lar, we first explore the text and context, and we then turn
to the legislative history of the pertinent statutes. State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). As we will
explain, in this particular instance, we conclude that “data
transmission services” is a technical term, which requires
us to explore the meaning and usage of the term in the spe-
cialized field from which it was borrowed.
1. Plain Text and Context
Our goal in interpreting a statute is to determine
what meaning the legislature intended in drafting the stat-
ute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610,
859 P2d 1143 (1993). When the legislature provides a defi-
nition of a statutory term, we of course use that definition.
Otherwise, we ordinarily look to the plain meaning of a stat-
ute’s text as a key first step in determining what particular
terms mean. Id. at 611 (first step in statutory analysis is
296 Comcast Corp. v. Dept. of Rev.
to consider “plain, natural, and ordinary meaning” of text).
And, as stilted as the approach may sometimes seem, we
frequently consult dictionary definitions of the terms, on the
assumption that, if the legislature did not give the term a
specialized definition, the dictionary definition reflects the
meaning that the legislature would naturally have intended.
See State v. Murray, 340 Or 599, 604, 136 P3d 10 (2006) (so
explaining).7
An exception to that approach arises when the leg-
islature uses technical terminology—so-called “terms of
art”—drawn from a specialized trade or field. In that cir-
cumstance, we look to the meaning and usage of those terms
in the discipline from which the legislature borrowed them.
So, for example, when a term is a legal one, we look to its
“established legal meaning” as revealed by, for starters at
least, legal dictionaries. See, e.g., Dept. of Rev. v. Croslin, 345
Or 620, 628, 201 P3d 900 (2009) (resorting to Black’s Law
Dictionary for definition of “damages”). We potentially also
consider the overall statutory scheme in which a legal term
appears, as well as the meaning that the term has for regula-
tors who oversee the field. See, e.g., Dept. of Transportation v.
Stallcup, 341 Or 93, 99-102, 138 P3d 9 (2006) (“appraisal” in
condemnation statute is a legal term; legal dictionary defini-
tion considered together with overall statutory scheme and
interpretation by board that regulates and certifies apprais-
ers). Likewise, when the legislature uses terms drawn from
disciplines such as psychiatry, medicine, or other special-
ized areas, the court determines the meaning of those terms
based on how they are used and understood in the special-
ized field, trade, or profession, and using sources that best
accord with the legislature’s intent. See, e.g., Tharp v. PSRB,
338 Or 413, 423, 110 P3d 103 (2005) (in statute providing for
guilty except for insanity defense, “ ‘mental disease or defect’
and ‘personality disorder,’ * * * are terms of art that are used
7
In particular, this court most often looks to the definitions provided in
Webster’s Third New Int’l Dictionary (unabridged ed 2002). See Kohring v.
Ballard, 355 Or 297, 304 n 2, 325 P3d 717 (2014) (noting frequency of citation and
explaining likely reason for resorting to Webster’s Third over other dictionaries).
In consulting dictionaries, however, it is important to use sources contemporane-
ous with the enactment of the statute. See, e.g., State v. Perry, 336 Or 49, 53, 77
P3d 313 (2003) (“In interpreting the words of a statute enacted many years ago,
we may seek guidance from dictionaries that were in use at the time.”).
Cite as 356 Or 282 (2014) 297
in the context of professional disciplines such as psychiatry
and psychology”); Mueller v. PSRB, 325 Or 332, 339, 937 P2d
1028 (1997) (in context of determining Psychiatric Security
Review Board’s jurisdiction over petitioner, phrase “person-
ality disorder” is “term of art as to which the DSM-III was
the definitive source”).
Here, neither party approaches the phrase “data
transmission services” as one that is best interpreted by
reference to a common and natural meaning.8 Rather, both
parties more or less assume that the term is a technical
term of art. They then to attempt to determine that techni-
cal meaning, arriving at markedly different conclusions in
the process.
At the outset, we agree that “data transmission
services” is a technical phrase that we should interpret as
such. The words in combination are the first clue that points
to that conclusion. Although the phrase consists of common
individual words, collectively they have no familiar or com-
mon meaning. For instance, the definition of “datum,” the
singular of the otherwise undefined “data,” is not helpful
even as a starting point:
“[S]omething that is given either from being experientially
encountered or from being admitted or assumed for specific
purposes : a fact or principle granted or presented : some-
thing upon which an inference or an argument is based or
from which an intellectual system of any sort is constructed
* * * : material serving as a basis for discussion, inference,
or determination of policy * * * : detailed information of any
kind[.]”
Webster’s Third New Int’l Dictionary 577 (1971). When com-
bined with the other terms in the phrase—”transmission”
and “services”—the phrase does not lend itself to any com-
mon or ordinary lay meaning.9 As is often true of other
8
In its brief, the department makes some effort to interpret the phrase based
on its common meaning, but then focuses on the technical meaning of “data
transmission services.” As we will explain, the effort to piece together a collective
lay meaning from the individual words of the phrase is not helpful, and just as
the department turns quickly to technical sources, so do we.
9
See also Webster’s at 2075 (defining “service” as, among other things, “use-
ful labor that does not produce a tangible commodity,” “the provision, organiza-
tion, or apparatus for conducting a public utility or meeting a general demand,”
and “offering a product useful only in making another product or in performing
298 Comcast Corp. v. Dept. of Rev.
technical terminology, it would be “futile” to try to cobble
together definitions of the individual words to make collec-
tive sense of the phrase as a whole. See, e.g., Tharp, 338 Or
at 423 (observing futility of giving terms “mental disease or
defect” an ordinary or common meaning).
The context in which the phrase appears likewise
points to its technical nature. And, more helpfully, context
points to the technical field from which its meaning should
be drawn. As noted, before the 1973 amendments added data
transmission services to the central assessment scheme,
ORS 308.515 specifically designated “telegraph communi-
cation” and “telephone communication” as services or busi-
nesses subject to central assessment. ORS 308.515(1)(a)
(1971). Senate Bill 81 (SB 81) deleted the specific references
to telephone and telegraph communication and replaced
them with the much more general reference to the business
or service of “communication.” ORS 308.515(1).
Had the legislature left the statute in that form,
the term “communication” might have been exceptionally
broad, encompassing any service, business, or commodity
that entailed any verbal, written, or electronic exchange
of thoughts, ideas, or information.10 Simultaneously, how-
ever, the legislature amended ORS 308.505 to provide that
“communication” includes telephone and telegraph com-
munication, thus tying the term to the traditionally cen-
trally assessed field of telecommunications.11 Or Laws 1973,
associated tasks or services”); id. at 2429 (defining “transmit” as, among other
things, “to cause to go or be conveyed to another person or place,” “to pass on or
spread about,” and “to cause (as light or force) to pass or be conveyed through
space or a medium”).
10
“Communication” as a lay term is defined in pertinent part as:
“1 : the act or action of imparting or transmitting * * * 2 a : facts or informa-
tion communicated b : a letter, note, or other instance of written information
* * * 3 a obs : conversation, talk * * * b communications pl : means of com-
municating: (1) : a system (as of telephones or telegraphs) for communicating
information and orders (as in a naval service) * * (3) : the function in an
*
industrial organization that transmits ideas, policies, and orders * * 6 a :
*
interchange of thoughts or opinions : a process by which meanings are
exchanged between individuals through a common system of symbols (as
language, signs, or gestures).”
Webster’s at 460.
11
We use the term “telecommunications” in the same way that it was used
by David Olson, a Professor of Telecommunications Law, who was asked to define
Cite as 356 Or 282 (2014) 299
ch 102, § 1. And, also simultaneously, the legislature added
“data transmission services” as an additional business or
service that qualifies as “communication.” Id. ch 402, § 8.
The central assessment scheme is one that, as we have
described, generally encompasses regulated and highly spe-
cialized businesses, industries, and services that depend on
networked lines of transportation or transmission that cross
geographical boundaries. The fact that “data transmission
services” is part of that scheme contextually confirms that
the phrase “data transmission services” is a technical one.
As important, the fact that the service is listed under “com-
munication” along with telephone and telegraph communi-
cation services strongly suggests that the phrase was drawn
from the telecommunications field.
2. Technical Meaning
Although the parties seem to agree that “data
transmission services” was intended by the legislature to be
a technical term, their agreement ends there. They disagree
on what sources we may consider to determine its meaning,
as well as on the ultimate meaning of the phrase—that is,
they disagree on the nature of the businesses and services
that the legislature understood to fall within the phrase.
The department begins by exploring technical
sources for a definition of the term. One contemporaneous
source that the department cites is Harley Carter, Dictionary
of Electronics 354 (2d ed 1972):
“Data Transmission. Broadly speaking, any process of
transmitting information, but the term now has a spe-
cialized meaning, namely the transmission of information
via telecommunication circuits in some code, such as the
Binary Scale, for Data Storage and processing.”
The department’s other sources for relevant technical defini-
tions are generally to the same effect.12
it when he testified before the Tax Court. He explained that the term “commu-
nication” within the field means “voice, video and data” and that “telecommuni-
cation” simply means “voice, video, and data sent over a distance.” Because of its
prevalence in everyday life, “telecommunication,” although a technical term, has
acquired a common meaning that is effectively the same: “1 : communication at a
distance (as by cable, radio, telegraph, telephone, or television) 2 : the science that
deals with telecommunication <study ~> usu. used in pl.” Webster’s Third at 2349.
12
See, e.g., IEEE Standard Dictionary of Electrical and Electronics Terms
161 (2d ed 1977) (defining “data transmission” as “[t]he movement of encoded
300 Comcast Corp. v. Dept. of Rev.
Comcast, for its part, offers no technical definitions
in support of its position or that otherwise contradict those
that the department provides. Rather, Comcast responds to
the department’s citations by asserting, in effect, that we
should not look to technical dictionaries because they do
not have the same “notoriety” as do dictionaries of common
usage, such as Webster’s Third. Moreover, Comcast urges,
the department has not demonstrated that the legislature
“consulted or referenced any technical dictionaries” when it
added “data transmission services” to the statute in 1973. In
Comcast’s view, apparently, technical sources that establish
the settled meaning of technical or other terms of art are
irrelevant unless the legislature was aware of the technical
meanings of the terms that it adopts.
We know of no principle that prevents the legislative
branch of government from adopting the technical meaning
of terms as they are used and understood in a specialized
trade or field without the legislature first being fluent in
that meaning. Certainly, our own cases have not burdened
the legislative process with such a requirement. We have,
instead, been willing to consult technical sources for the
meaning of technical terms, without first asking whether
the legislature did so. See, e.g., Croslin, 345 Or at 628 (using
legal dictionary to define legal term); Mueller, 325 Or at 339
(using psychiatric diagnostic manual to construe meaning
of “personality disorder”). Indeed, we have consulted such
sources in circumstances where the legislative history
revealed that the meaning to be given to a technical term
was a source of debate during the legislative process, with
the result that “the legislature had an ‘idea’ of the meaning
of the term,” but left the task of defining it more precisely to
“the common law, the [administrative tribunal that hears
disputes in the area], and the appellate courts.” Hopkins v.
SAIF, 349 Or 348, 360, 245 P3d 90 (2010) (interpreting term
“arthritis” for purposes of workers compensation statute).
Our approach to the interpretation of technical terms is a
time-honored one. See William Blackstone, 1 Commentaries
information by means of communication techniques”) and Elsevier’s Dictionary of
Computers, Automatic Control and Data Processing 89 (2d ed 1971) (“data trans-
mission” defined as “the transmission between remote points of data in coded
form by means of signals”).
Cite as 356 Or 282 (2014) 301
on the Laws of England 59 (1765). (“[In interpreting legisla-
tion,] terms of art, or technical terms, must be taken accord-
ing to the acceptation of the learned in each art, trade, and
science.”).
That is not to say that, in interpreting “data trans-
mission services” in this case, we must automatically adopt
the technical definitions provided by sources such as those
that the department cites.13 The interpretation to be given
to the phrase “data transmission services” still depends on
what meaning the legislature intended. If the legislature’s
intent was to borrow from a technical field, then we look
to that technical field, consulting technical sources for the
range of meanings a term may entail and selecting from
those meanings in a way that is consistent with the “idea”
of the meaning that the legislature had in mind. See id. at
361-64 (concluding that legislature would have intended
term “arthritis” to encompass core aspects of condition, as
revealed by medical sources; rejecting argument that term
should be limited to a particular form of arthritis—osteoar-
thritis—when legislative history revealed no intent for more
limited form). It is helpful, therefore, to examine legislative
history to see whether it confirms that the phrase “data
transmission services” was drawn from the telecommunica-
tions field and, if so, what the history conveys about the leg-
islature’s understanding of the phrase’s technical meaning.
3. Legislative History
The parties agree that the impetus for the 1973
amendments that added “data transmission services” to
the central assessment scheme arose when the Federal
Communications Commission (FCC) began licensing com-
panies as specialized common carriers to compete with
13
In Davidson v. Oregon Government Ethics Comm., 300 Or 415, 420, 712
P2d 87 (1985), this court stated that we do not give effect to the intent of the
legislature “by consulting dictionary definitions of words, unless there is reason
to believe that the legislature consulted the same dictionary” and “no single dic-
tionary is authoritative.” We further observed, however, that dictionary mean-
ings are appropriate to consult to the extent they are “compatible with legislative
policy.” Id. at 421. Our approach here is the same. Unless the legislature is shown
to have chosen its words in reliance on a particular dictionary definition of them,
no particular dictionary is “authoritative” or otherwise controlling. But that does
not mean that this court should not consult dictionary definitions of both plain
and technical terms to assist in interpreting a statute in a way that is consistent
with legislative intent.
302 Comcast Corp. v. Dept. of Rev.
telephone communication companies. Specialized Common
Carrier Decision, 29 FCC 2d 870, 920 (1971). Several carri-
ers, including Microwave Communications of America, Inc.
(MCI), obtained FCC approval to provide private line ser-
vices so that subscribers could communicate, among other
things, “data and other non-voice traffic” between geograph-
ically distant locations via point-to-point microwave trans-
missions. Washington Utilities & Transp. Com’n v. F.C.C.,
513 F2d 1142, 1155 (9th Cir 1975). Although the same pri-
vate line service was available through existing telephone
transmission lines, microwave technology offered distinct
advantages. Georgia Persons, The Making of Energy and
Telecommunications Policy 88 (1995). In particular, the pro-
posed microwave network would be low cost, would allow for
rapid connection and high availability of lines, would provide
a wider selection of transmission speeds, and would have
lower transmission error rates. See Specialized Common
Carrier Decision, 29 FCC 2d at 953 (discussing advantages
cited by proposed carriers).
As a result of FCC approval to construct a micro-
wave communication network along the Pacific Coast (from
Seattle to San Diego), the department proposed the amend-
ments to the central assessment statutes set out in SB 81.
The purpose of SB 81 was to ensure that the planned micro-
wave communication infrastructure would be subject to cen-
tral assessment along with the existing telephone and tele-
graph infrastructures. See Tape Recording, House Revenue
Committee, SB 81, Apr 20, 1973, Tape 35, Side 2 (“[I]t’s
currently under construction across the state of Oregon
* * a microwave communications network that will link
*
Seattle, San Francisco, Los Angeles, and so on. * * We’d
*
like to clearly include the assessment of [the planned com-
munication network] within the Department of Revenue’s
jurisdiction.”) (statement of Victor Bredehoeft, Department
of Revenue).
Discussions during committee hearings and floor
debates bear out our conclusion that the legislature under-
stood “data transmission services” as a technical phrase
drawn from the telecommunications field. For instance, in
a Senate Revenue Committee hearing, the department rep-
resentative explained that SB 81 would “clarify” the central
Cite as 356 Or 282 (2014) 303
assessment statutes by ensuring that “newly emerging
data transmission services” would be, along with telephone
and telegraph services, communications services subject
to central assessment. Tape Recording, Senate Revenue
Committee, SB 81, Feb 9, 1973, Tape 10, Side 2 (statement
of Victor Bredehoeft, Department of Revenue).
The legislative history also reveals that the new
communications service of data transmission was unfamil-
iar to legislators. One senator asked, “What is data trans-
mission? Is this the phone-to-phone * * * kind of thing?” Id.
(statement of Senator Atiyeh). The department representa-
tive answered in the affirmative, explaining it was “the kind
of thing” that involves “the transmission over telephone
facilities or microwave [facilities] of data between comput-
ers primarily, or data from a computer terminal into a com-
puter, or other nonverbal kind of data communication.” Id.
(statement of Victor Bredehoeft, Department of Revenue).
When SB 81 was later introduced for a vote on the Senate
floor, the comments of the senator who introduced it, too,
reflect that the phrase “data transmission services” was a
technical one that was meaningful in the telecommunica-
tions field, even if legislators had only a limited understand-
ing of that meaning:
“SB 81 ha[s] to do with [the] definitions of communications.
The present language could very easily ignore * * a new
*
type of communication which is known as—now I’m try-
ing to think of the word—it had to do with communications
between computers or data processing or that type of commu-
nication. * * * [I]t is questioned whether [telegraph and tele-
phone communication] really encompass a computer-type of
transmission of information.”
Tape Recording, Senate Floor Debate, SB 81, Feb 15, 1973,
Reel 3, Side 2 (statement of Senator Hoyt) (emphasis added).
A House member’s description of SB 81 when it later came to
a vote on the House floor was similar:
“[T]he Department of Revenue can assess statewide cer-
tain items including communication and this included
telephones and telegraph communication. There is a new
one that has come up and that is data processing trans-
mission by microwave and this simply adds this type of
304 Comcast Corp. v. Dept. of Rev.
transmission to the present law. And it is a technical addi-
tion mainly.”
Tape Recording, House Floor Debate, SB 81, May 8, 1973,
Reel 16, Track 1 (statement of Representative Cherry).
The department, relying principally on those por-
tions of the legislative history, urges that “data transmission
services” was added to the description of centrally assessed
“communication” services to capture emerging technology by
which encoded data could more efficiently be sent between
geographically remote computers or similar devices capable
of sending and receiving that data. Comcast, however, urges
that the legislature’s purpose was much narrower and that
the meaning the legislature ascribed to “data transmission
services” was narrow as well.
In particular, Comcast points to the portions of the
legislative history referring to the planned construction of
the microwave communication network along the west coast:
“This bill is for the purpose of clarifying the language of the
utility assessment statutes to make it clear that a new type
of industry will come under our assessment jurisdiction,
that is point-to-point microwave communications service.”
Tape Recording, House Revenue Committee, SB 81, Apr 20,
1973, Tape 35 (statement of Victor Bredehoeft, Department
of Revenue). Comcast also points to an exchange during
the department’s testimony before the Senate Revenue
Committee. There, a senator asked: “All I know about it
is what I’ve seen advertised, * * but you’re talking about
*
my company communicating with a branch of my company
somewhere else[,]” to which the department representative
responded, “Exactly.”14 Tape Recording, Senate Revenue
Committee, SB 81, Feb 9, 1973, Tape 10, Side 2 (statements
of Victor Bredehoeft, Department of Revenue, and unnamed
senator). According to Comcast, those portions of the leg-
islative history support its position that the legislature
intended the phrase “data transmission services” to mean
14
In his explanation, Bredehoeft went on to explain that if a company estab-
lished such a service only for its own use, it would not qualify under the statute
because a company must offer the service “for hire” — that is, a company “pro-
viding these communication services must offer them to the general public for a
fee.” Tape Recording, House Revenue Committee, SB 81, Apr 20, 1973, Tape 35
(statement of Victor Bredehoeft, Department of Revenue).
Cite as 356 Or 282 (2014) 305
only the intracompany transmission of business data via the
private lines that would be offered over the newly licensed
microwave communications infrastructure.
The legislative history as a whole, however, does
not show that the legislature had the narrow intent that
Comcast ascribes to it. To be sure, the private line business
data transmission service that Comcast describes was the
service that MCI offered in its first application to the FCC in
1963 to operate as a common carrier in the data communica-
tion market. See Stuart L. Mathison and Philip M. Walker,
Regulatory Policy and Future Data Transmission Services in
Computer Communication Networks, 327 (N. Abramson and
F.F. Kuo, eds. 1973) (“The MCI carriers plan to interconnect
their systems and cooperate with each other to provide a
nationwide private-line communications network.”). And the
growing demand for private line business data transmission
services appears to be what drove many other companies
to quickly follow MCI’s lead and apply for FCC permits to
construct and operate microwave communication networks.
Id. at 324-35, Table 9.5 (table listing microwave network
applications).
But Comcast does not confront the portions of the
legislative history that affirmatively show that the legis-
lature understood “data transmission services” to be more
encompassing terminology. In proposing the new language
as part of SB 81, the department’s representative explained
to the Senate Revenue Committee that it was designed to
eliminate confusion that had existed in the past and “may
exist in the future” in connection with assessment of “certain
types of communications services.” Tape Recording, Senate
Revenue Committee, SB 81, Feb 9, 1973, Tape 10, Side 2
(statement of Victor Bredehoeft, Department of Revenue).
The department’s representative further explained that SB
81 eliminated the “discriminatory” references to telephone
and telegraph communication from current law, and instead
was directed to “communication” services generally, which
included telephone and telegraph communication, and also
“data transmission services by whatever means provided.”
Id. The plain import of that testimony was that data trans-
mission services were not industry-specific—they could be
provided by telephone, telegraph, and other means. What
306 Comcast Corp. v. Dept. of Rev.
was important was the nature of the service itself. The legis-
lature understood and endorsed the department’s testimony
describing “data transmission services” in expansive terms
as the transmission “of data between computers primarily,
or data from a computer terminal into a computer, or other
nonverbal kind of data communication.” Id.
In short, we agree with Comcast that the legislature
amended the central assessment statutes in 1973 because
of a particular precipitating problem—viz., the FCC was
licensing microwave companies to provide private line busi-
ness data transmission services in competition with tele-
phone companies. But we agree with the department that
the legislature did not limit the amendment to that narrow
problem. That is, it did not amend the statute by specifi-
cally adding microwave private line data transmission ser-
vices to the other businesses and services already listed in
the statute.15 Instead, the legislature opted to expansively
reach all data transmission services, without regard to the
use to which the data is put (for example, business rather
than entertainment or educational uses). The legislature
frequently makes policy choices of that kind:
“Statutes ordinarily are drafted in order to address some
known or identifiable problem, but the chosen solution may
not always be narrowly confined to the precise problem.
The legislature may and often does choose broader lan-
guage that applies to a wider range of circumstances than
the precise problem that triggered legislative attention.
For instance, lawmakers may believe that defining a nar-
rower class for coverage under a statute would cause more
problems in interpretation and administration and would
be less efficient than to use broad, residual language that
avoids such problems. When the express terms of a statute
indicate such broader coverage, it is not necessary to show
that this was its conscious purpose. In the absence of an
affirmative showing that the narrower meaning actually
was intended by the drafters, we shall take the legislature
at its word * * *.”
15
In the past, the legislature has been specific and narrow when it intended
to be. For instance, rather than subject “air transportation services” to central
assessment when it intended only a subset of those services, the legislature spec-
ified the subset that it intended was “air transportation certificated by the Civil
Aeronautics Board for scheduled air service.” ORS 308.515(1)(a) (1973).
Cite as 356 Or 282 (2014) 307
South Beach Marina, Inc. v. Dept. of Rev., 301 Or 524, 531,724
P2d 788 (1986) (footnote omitted). Here, the legislative his-
tory of the 1973 amendments to the central assessment stat-
utes confirms that the legislature addressed a particular
precipitating concern (microwave companies being permitted
to compete with telephone companies to meet demands for
private line business data transmission) with a broader pol-
icy choice (to centrally assess all data transmission services,
regardless of the means by which they transmit the data).16
In sum, we conclude based on the text, context, and
legislative history that the legislature used the phrase “data
transmission services” with the understanding that it had a
technical meaning within the telecommunications industry.
Contrary to Comcast’s position, the phrase was not intended
to refer only to the particular data transmission service (i.e.,
private line microwave transmission of intracompany busi-
ness data) that was creating competition for the first time
with the telephone industry. Instead, the legislature painted
with a broader brush and a conscious awareness that “data
transmission services” in general involved “the transmis-
sion over telephone facilities or microwave facilities [or other
means] of data between computers primarily, or data from a
computer terminal into a computer, or other nonverbal kind
of data communication.” Tape Recording, Senate Revenue
Committee, SB 81, Feb 9, 1973, Tape 10, Side 2 (statement
of Victor Bredehoeft, Department of Revenue).
4. Technical Meaning of “Data Transmission
Services”
The legislative history thus conveys the general
sense in which the legislature used and understood the
16
Comcast argues that South Beach Marina is “readily distinguishable” from
this case, because here, unlike in South Beach Marina, legislative history exists
to inform our understanding of the legislature’s intent. That misses the point.
In South Beach Marina, we deferred to the broad meaning of the text because
legislative history did not exist to establish the alternative possibility that the
legislature intended a narrower meaning. When, as here, legislative history con-
firms that the legislature intended the broad meaning of the text it used in an
enactment or amendment, that is an added reason to take the legislature at its
word. See State v. Walker, 356 Or 4, 22, __ P3d __ (2014) (“[W]here the legislative
history demonstrates that the legislature was aware of the expansive nature of
an enactment’s text, yet chose not to narrow it, we are constrained to interpret
the statute in a way that is consistent with that text, which is, in the end, the best
indication of the legislature’s intent.”).
308 Comcast Corp. v. Dept. of Rev.
terminology “data transmission services.” It also conveys
that the legislature adopted it as a technical phrase drawn
from the telecommunications industry. It is helpful, for that
reason, to examine the use and meaning of that terminology
within the specialized field from which the legislature bor-
rowed it to see if that usage further informs its meaning for
purposes of ORS 308.505(2).
“Data transmission” emerged with the advent of the
computer and, more particularly, with the need to trans-
mit coded electronic information from one computing device
to another in a different geographical location. That need
arose when, beginning in the 1950s, businesses began to
embrace the computer as a data or information processing
tool. Andrew Davies, Telecommunications and Politics: The
Decentralised Alternative 100 (1994). The computer revolu-
tionized business processes with its ability to efficiently and
precisely organize, aggregate, analyze, and then communi-
cate information in electronic form. Id. at 102.17 The capabil-
ities of a single computer were multiplied when it was con-
nected to other computers in a way that permitted each to
easily send and receive information to and from the others.
Stuart L. Mathison and Philip M. Walker, Computers and
Telecommunications: Issues in Public Policy vi (1970). That
development drove the demand to put the telecommunication
infrastructure to use for something other than voice trans-
mission: Telephone lines were the means by which comput-
ing devices could be networked. Davies, Telecommunications
and Politics: The Decentralised Alternative at 104-05.
17
The concept of “information processing” became a formalized part of busi-
ness activity in the mid- to late-19th century, long before computers existed.
Davies, Telecommunications and Politics: The Decentralised Alternative at 95.
For larger companies to make effective and competitive management decisions,
they had to be able to organize, aggregate, and quickly retrieve records of sales,
orders, debts, credits, and inventories. Id. As the author of a telecommunications
regulatory treatise explains, information processing began as a time- and per-
sonnel-intensive activity that evolved with related advances in technology:
“[B]y the 1890s, information-processing was entirely paperbased. Large
armies of clerks and bookkeepers posted figures by hand, and undertook the
responsibility of screening and retrieving reports. [T]he introduction of elec-
tromechanical punchcard and tabulating machinery improved the organisa-
tion [sic] of data into aggregates. Entries were punched on cards which could
be retrieved by sorting machines and aggregated into totals by tabulating
machines.”
Id.
Cite as 356 Or 282 (2014) 309
“Data transmission service” became the terminol-
ogy used within the telecommunications field to describe the
service that carried or transmitted electronic information
from a computer, data terminal, or other electronic device to
another computer, data terminal, or other electronic device
at a geographically distant location. That usage and under-
standing is reflected in FCC decisions, cases, law review
articles, and textbooks published in or before 1973, when
the legislature added “data transmission services” to the
central assessment statutes.
For instance, in its application for authorization to
construct microwave radio facilities to provide specialized
common carrier services, Data Transmission Corporation
(Datran) proposed an “all digital communications net work
specifically engineered for data transmission.” Specialized
Common Carrier Decision, 29 FCC 2d at 872. In considering
Datran’s application, the FCC used the term “data transmis-
sion services” to mean the service of sending information in
coded electronic form for the purpose of processing that data
at the other end of the transmission, as this portion of the
FCC’s decision illustrates:
“According to Datran, its market studies show that
major economic sectors, individual consumers, and provid-
ers of information systems and services in the aggregate
have a rapidly expanding need for rapid, accurate, low-cost
data transmission services which is largely unmet by pres-
ent common carrier offerings. Specifically, Datran claims
that the costs of existing communications services have not
declined in proportion to data processing costs; that existing
analog transmission systems require costly modulator-de-
modulator equipment to convert digital signals to analog
and back again; that current switched services often take
significant time to establish connections, which detracts
from the productivity of the data terminal and operator;
that transmission systems originally engineered for voice
and record transmission do not meet the more demanding
reliability standards of digital data transmission[.]”
Id.18
18
In the same decision, the FCC went on to describe a similar application by
MCI. According to MCI, “[t]he computer industry ‘desperately’ needs a commu-
nications network designed especially for data transmission. MCI would provide
this network (accepting both analog and digital data signals) and meet many
310 Comcast Corp. v. Dept. of Rev.
In a 1966 case reviewing FCC orders resolving
claims of common carrier rate discrimination, the United
States Court of Appeals for the District of Columbia Circuit
noted the changes that had taken place in the telecommuni-
cations industry in response to the demand for more commu-
nication services. The following excerpt usefully highlights
the then-recent communication innovations and illustrates
again that, well before 1973, “data transmission” was under-
stood within the telecommunications industry as the service
of sending information in electronically coded form:
“Modern government and modern industry have begun
to require mass communication. Modern science has kept
pace with these requirements. Thus in a nation-wide busi-
ness the management frequently does not wish to read over
a telephone from a central office to one or several branch
offices the details of a statistical report. Waste of time and
very great possibility of error in transmission would be
thus involved. Management wants to reproduce the report
in San Francisco exactly as it exists in New York. Science
has supplied the means for doing this. And similarly there
is equipment and carrying ability for many sorts of data,
voices, automatic typewriting, photographic reproduc-
tion, signaling devices, and what is called merely data
transmission.”
American Trucking Associations, Inc. v. F.C.C., 377 F2d 121,
125, (DC Cir 1966) (emphasis added).
The challenges of setting regulatory policy to meet
the growing demands for data transmission services spurred
considerable legal academic discussion. Law review articles
from the late 1960s and early 1970s generally discussed
data transmission in the same way that it was discussed in
the hearings on SB 81—that is, as the transfer and trans-
mission of coded electronic information between computers
of the communications needs of the computer industry forecast over the next
five years *
* *.” 29 FCC 2d at 875. Similarly, in another decision considering an
application to establish a nationwide “communications network providing ter-
minal-computer and computer-computer communications utilizing technology
known as ‘packet-switching,’ the FCC explained that the applicant sought to
”
serve “data transmission markets.” Packet Communications, Inc., 43 FCC 2d
922, 922, 923 (1973). The application was supported by Computer Corporation
of America (CCA), a business that planned to offer “a nation-wide data bank ser-
vice, which will provide data storage facilities for remote access by computers and
terminal devices.” Id. at 924.
Cite as 356 Or 282 (2014) 311
or computer-like devices. Because of their forward-thinking
focus, those articles often described not just then-existing
demands for data transmission services (such as the micro-
wave applications for private line intracompany data trans-
mission), but also anticipated future demands. For instance,
in 1967, one author forecast:
“Within the decade, electronic data centers will pro-
vide computational power to the general public in a way
somewhat analogous to today’s distribution of electricity.
Computer systems will blanket the United States, estab-
lishing an informational grid to permit the mass storage,
processing, and consumption of a variety of data services:
computer-aided instruction, medical information, market-
ing research, stock market information, airline and hotel
reservations, banking by phone—to mention only a few.”
Manley R. Irwin, The Computer Utility: Competition or
Regulation?, 76 Yale L J 1299, 1299 (1967). That same
author described projections that, within only a few years
(i.e., by the early to mid-1970s), 50 to 90 percent of all com-
puters would be “on-line” and “over half of the nation’s com-
munications will be transmitted as data rather than by
voice,” which in turn “will bring the data processing and the
communication industries into unprecedented intimacy.” Id.
at 1300 (footnote omitted). A 1972 article made what might
then have been the provocative prediction that computers
linked to telecommunication lines would soon be in every
home:
“[The] combination of computers and communications may
provide us with the means of establishing a national com-
puter utility, with computer consoles in every home, on an
Orwellian model. It is predicted that by the end of this
decade data communications will exceed voice communica-
tions and the volume of communications among computers
will exceed that among humans.”
Barry Taub, Federal Communications Commission Regula-
tion of Domestic Computer Communications: A Competitive
Reformation, 22 Buff L Rev 947, 950 (1972) (footnotes
omitted).
Textbooks from 1973 and earlier likewise demon-
strate that “data transmission services” was commonly
312 Comcast Corp. v. Dept. of Rev.
understood in the telecommunications field to refer gener-
ally to the transmission of electronic information between
devices capable of coding and decoding that information
for any number of purposes. For instance, in a 1970 text-
book, Stuart L. Mathison and Philip M. Walker explained:
“Rapid advances in computer technology and in the design
and programming of large computer systems have increased
the commercial usefulness of ‘remote access data processing
systems’—i.e., systems in which data is transmitted by com-
munications links to and from a computer performing data
processing functions.” Mathison and Walker, Computers and
Telecommunications: Issues in Public Policy at 12. Later, in
1973, those same authors more explicitly referred to “data
transmission” in the context of exchanging coded electronic
information in a variety of settings:
“The importance of the need for suitable and efficient data
transmission facilities should not be underestimated.
Computer systems and data networks are proliferating and
assuming ever-increasing importance in virtually all sec-
tors of our economy. Vital industries and government orga-
nizations are becoming increasingly dependent upon data
transmission facilities—in some cases to the same degree
that they have come to depend upon nationwide telephone
service for their day-to-day operations. The operations of
the stock exchanges, the airlines, and the national air
defense system, for example, would be crippled were their
data communication links to fail. The growth of data trans-
mission both among these users and throughout the U.S.
economy reflects the fact that data transmission facilities
will * * * become a part of the nation’s infrastructure.”
Mathison and Walker, Regulatory Policy and Future
Data Transmission Services in Computer Communication
Networks at 296-97.
Those technical sources uniformly convey that, as
of 1973, “data transmission services” referred broadly to the
transmission through telecommunication networks of coded
information in electronic form. Government, business, and
others had varied reasons and needs to transmit data over
a distance, and had varied kinds of information to send
and receive in data form. As of 1973, the existing demand
for data transmission services was limited. But there was
Cite as 356 Or 282 (2014) 313
widespread recognition that demand would change and
that data transmission was destined to become the prev-
alent means of communicating most information across a
distance.
The use and meaning of “data transmission ser-
vices” in the telecommunications industry is thus consistent
with how the terminology was understood by the legislature
in 1973. As we have concluded, the legislature understood
the terminology to be meaningful in the telecommunica-
tions field and to broadly describe, as the department’s rep-
resentative put it, “the transmission over telephone facili-
ties or microwave facilities [or other means] of data between
computers primarily, or data from a computer terminal into
a computer, or other nonverbal kind of data communica-
tion.” Tape Recording, Senate Revenue Committee, SB 81,
Feb 9, 1973, Tape 10, Side 2 (statement of Victor Bredehoeft,
Department of Revenue).
5. whatever means provided”
“[B]y
One final aspect of the 1973 amendments deserves
discussion. In expressly declaring what the service of
“communication” includes, the legislature specified that it
“includes telephone communication, telegraph communi-
cation, and data transmission services by whatever means
provided.” Or Laws 1973, ch 102, § 1 (codified as ORS
308.505(2)). Comcast argues, and we agree, that the ital-
icized text appears to have been added to codify the hold-
ing in Emerald Loggers Radio Association v. State Tax
Commission, 2 OTR 77 (1965). The issue in that case was
whether a private mobile radio communication service was
subject to central assessment as a “telephone communica-
tion” service. The service permitted wireless telephone com-
munication for a distance of about 10 miles and was used by
34 members of a private association of loggers for two-way
communication about emergencies, such as fires and inju-
ries. Id. at 78. The Tax Court concluded that, by including
“telephone communication” services in ORS 308.515 (1965),
the legislature had used the word “telephone” in its broadest
sense, which included all businesses involved in “the trans-
mission of intelligence, messages or sound to a far point”
regardless of the “means of communication.” Id. at 79. In
314 Comcast Corp. v. Dept. of Rev.
other words, as long as the service had the essential charac-
teristics of a telephone service, it qualified as such regard-
less of the wired, wireless, or other means through which
the service was provided.
In the 1973 Senate Revenue Committee hearing on
SB 81, the department’s representative explained that the
bill, in addition to adding data transmission services to the
statute, would also “clarify some of the wording in the exist-
ing law to eliminate confusion that has existed in the past
and that may exist in the future[.]” Tape Recording, Senate
Revenue Committee, SB 81, Feb 9, 1973, Tape 10, Side 2
(statement of Victor Bredehoeft, Department of Revenue).
He then described the controversy over centrally assessing
mobile radio telephone services and explained that litiga-
tion had been required to sustain the department’s position
that those services, despite the different means of providing
them, were telephone communication.19 Id. The department’s
solution to avoid similar controversies in the future, while
also ensuring that the newly emerging specialized “data
transmission services” would be subject to central assess-
ment, was to “eliminate the discriminatory phrases—tele-
graph communication and telephone communication—from
the present law and simply require it be assessed commu-
nication services. Then we’ve added the definition for those
communication services to include telephone communica-
tion, telegraph communication and data transmission ser-
vices by whatever means provided.” Id.
The addition of “by whatever means provided”
serves in a significant, if subtle, way to confirm our under-
standing of what the legislature intended “data transmis-
sion serves” to encompass. The legislature understood “data
transmission services” to be technology-specific in the sense
19
The department representative apparently misspoke in the course of his
testimony, stating that “[i]t took a [S]upreme [C]ourt case to uphold our position”
when the only reported case was a decision of the Tax Court. His description
of the litigation leaves no real doubt that he was referring to the Tax Court’s
resolution of Emerald Loggers about seven years before: “Some years ago when
the radio telephone, mobile radio telephone services, were first made available
by several companies, we interpreted the law at that time as requiring that we
assess those centrally. It took a supreme court [sic] case to uphold our position
* * *.” Tape Recording, Senate Revenue Committee, SB 81, Feb 9, 1973, Tape 10,
Side 2 (statement of Victor Bredehoeft, Department of Revenue).
Cite as 356 Or 282 (2014) 315
that the phrase refers to the transmission of information
in coded electronic form between computer-like devices. By
adding the words “by whatever means provided,” the leg-
islature emphasized that “data transmission services” (as
well as telephone and telegraph services) were technology-
neutral in terms of the means or medium of the transmis-
sion. Thus, the service of data transmission—that is, the ser-
vice of transmitting information in electronically coded form
between computers and computer-like devices—remains
that service regardless of whether the transmission is over
wire, microwave, radio wave, coaxial cable, fiber optic cable,
or any other medium that can serve as a means of transmit-
ting the data between devices.
6.
Summary: The Legislature’s Intended Meaning
We conclude that, in amending the central assess-
ment statutes in 1973 to include “data transmission ser-
vices,” the legislature adopted that phrase from the telecom-
munications field, intending it to have the meaning that it
has within that field. Drawing from the accepted technical
meaning and usage of that phrase, we conclude that “data
transmission services” are services that provide the means
to send data from one computer or computer-like device to
another across a transmission network. Data, in turn, is
information—whether it originated as voice, video, text, or
anything else—that is sent between computers or computer-
like devices in coded electronic form. The specific technology
used to transmit the data—that is, the “means” of transmis-
sion, whether microwave, wire, coaxial, fiber optic, or some-
thing else—does not matter. Instead, the defining quality
of a data transmission service is that it provides the means
to transmit data over a distance between computers or
computer-like devices.
III. APPLICATION
With that interpretation of “data transmission ser-
vice” in place, we turn to the particular services that are in
dispute in this case: internet access and cable television. As
a factual matter, the Tax Court found that “[t]he cable tele-
vision business and the internet access business each involve
the communication of data.” Comcast Corp., 20 OTR at 320.
316 Comcast Corp. v. Dept. of Rev.
Later in its analysis, the Tax Court emphasized that “the
information transmitted through or by way of the services
offered by Comcast is ‘data’ under any acceptable definition.”
Id. at 335. Although we agree with the Tax Court that both
services transmit data, our interpretation of the statutory
phrase “data transmission services” requires a more precise
characterization of the transmitted data—that is, the data
must be in the form of information encoded for transmission
between computers or computer-like devices.
Before we examine the services that Comcast
now provides, it is helpful to briefly sketch the evolution
of those services. The telecommunications industry—cable
included—has undergone massive change since 1973. In
1973, it was technologically possible to use data transmis-
sion to deliver content of all kinds (e.g., voice, video, and
text), but the infrastructure and the demand to do so on
a broad scale did not exist. As we explain below, however,
that began to change in the 1980s, and the change accel-
erated during the 1990s. The advent of digital technology
and high-speed internet resulted in the phenomenon of
telecommunications “convergence.” With that convergence,
services—such as voice and video transmission—that were
once predominantly accomplished using distinctive and dif-
ferent infrastructures have all technologically migrated
to data transmission. We therefore begin by describing
that transformation within the telecommunications indus-
try, because that background aids in understanding how
the cable industry generally—and Comcast included—has
become one engaged in data transmission services, even
though it was not such a service in 1973.
A. The Evolution of Cable Services and the Convergence of
Cable, Telephone, and Internet Services
A department witness called to testify at the trial
before the Tax Court, Professor Patrick Parsons,20 provided
an overview of the beginnings of cable television and how
the cable industry has evolved into one capable of providing
not only television service, but internet access and telephone
20
Professor Parsons teaches telecommunications at the College of Communi-
cations, Penn State University. He is the author of several books and articles
about the cable television industry.
Cite as 356 Or 282 (2014) 317
(VOIP) services as well. His testimony about that evolution
is consistent with what treatises in the field document.21
As Professor Parsons explained, the first docu-
mented cable television service anywhere in the nation was
in Astoria, Oregon, in 1948. It consisted of a simple coaxial
cable run by Ed Parsons (no relation to Professor Parsons)
to his apartment from an antenna placed where it could pick
up a weak over-the-air television signal broadcasted from
Seattle. Mr. Parsons boosted the signal and was able to
get reception on his television as a result. Francis Murphy,
Behind the Mike, The Oregonian 32 (Sept 13, 1967). When
he tired of having friends and neighbors constantly coming
to his apartment to watch television, Mr. Parsons expanded
his system by stringing coaxial cable from home to home to
carry the signal to his neighbors. Id.
That ushered in the first evolutionary period for
cable television, which Professor Parsons described as
lasting from about 1950 to 1975. During that time, cable
television was principally in the business of transmitting
over-the-air broadcast television, primarily in rural areas
that did not receive clear broadcast signals. The technology
used was similar to Ed Parsons’s system. Essentially, cable
television providers picked up broadcast signals with an
antenna and distributed that signal into a cable network,
often manipulating the signal by amplifying it to make it
stronger, filtering out unwanted signals, and combining sig-
nals from different sources into a composite signal for dis-
tribution. Walter S. Baer, Cable Television: A Handbook for
Decisionmaking, R-1133-NSF, NSF/RA/S-73-002 at 13-15
(1973). Throughout that first evolutionary phase, signals in
cable systems moved predominantly in one direction—from
the service provider to the customer. Id. at 25. Two-way
service was technically possible; coaxial cable was capable
of sending signals, voice, video, and even coded data in the
opposite direction, from the customer back to the service
provider. Id. But such services were essentially in prototype
form and not in general use within the industry. Id. Cable
television remained a small-scale business because there
21
Our description is taken from the testimony of Parsons and other expert
witnesses who were called at the trial before the Tax Court, except where other
sources are cited.
318 Comcast Corp. v. Dept. of Rev.
was no demand for it in more urban and metropolitan areas
that were served by over-the-air broadcast television.
The demand for cable television changed, however,
when Home Box Office (HBO) began distributing its pro-
gramming by satellite in 1975. HBO’s innovation marked
the beginning of the second evolutionary period for cable
television. By contracting with HBO to distribute its pro-
gramming by cable, the industry had something to offer
customers in urban and metropolitan areas that they could
not get for free over the public air waves. In the words of
Professor Parsons, HBO’s availability through cable televi-
sion “change[d] the nature of the industry,” creating the eco-
nomic incentive for new program providers to enter the mar-
ket (e.g., MTV, CNN, ESPN) and for the industry to expand
and develop the infrastructure needed to meet demand. The
second evolutionary period continued into the early to mid-
1990s, during which cable television developed into a large-
scale and “very, very successful” business.
The cable industry entered its third evolutionary
period—which it remains in today—in the mid-1990s with
the migration from analog to digital technology. As a result
of that migration, the cable industry was able to offer its
customers enhanced television service in the form of more
channels and higher quality images (so-called “high defi-
nition television”), as well as new capabilities—such as on-
demand programming sent to the customer at the custom-
er’s request—that were not possible with conventional ana-
log technology. More than that, though, the industry was
able to expand into “new business lines.” Harnessing the
same digital infrastructure used for transmitting television
and video programming to its customers, the cable industry
could provide its customers the additional services of broad-
band internet access and telephone via internet (VOIP) ser-
vices, either separately or as a bundled package. When the
regulatory barriers to competition within the telecommuni-
cations field began to give way in the mid-1990s, so that the
cable industry could compete with the telephone industry
and vice versa, and both could meet the growing demand for
internet access, the result was “profound,” to quote Professor
Parsons. In effect, digital technology caused a “convergence”
of what had once been separate services and industries.
Cite as 356 Or 282 (2014) 319
Until that convergence occurred, the technical
platforms used by the telephone, telegraph, and television
industries were different, because different platforms were
best suited to the particular content to be transmitted. As
a result, voice transmission services were primarily the
domain of the telephone companies; digital signal transmis-
sion services (used principally for text) were primarily the
domain of the now-nonexistent telegraph services; and video
was primarily the domain of the broadcast and cable televi-
sion businesses. See generally Niloufer Selvadurai, Meeting
the Digital Challenge—The Need to Extend the Parameters of
Reform, 16 J L Inf & Sci 92, 102-03 (2005) (describing how
the traditional world of communications required distinct
infrastructures for different communication services). But
with digital technology, those content distinctions became
meaningless.
Now, with digital transmission of content, the con-
tent is all the same—it is all digital data, encoded by special-
ized equipment at one end for high-speed transmission, and
decoded by specialized equipment at the other end so that
it is in useful form. Professor Thinh Nguyen, an engineer-
ing and computer science expert who testified at trial for
the department, explained that, in a digital system, all data
is a collection of “bits”—that is, zeros and ones—regardless
of whether it is video, voice, or some other original content.
The only significant difference is in how the bits are coded
for efficient transmission. Video, for example, because of the
massive amount of bandwidth it consumes, requires special
compression to avoid delays that would make playback jit-
tery or otherwise unacceptable. And although voice requires
far less bandwidth than video, the protocols used to com-
press and encode it are “more stringent” so that it has prior-
ity in the transmission, because humans are psychologically
intolerant of significant delay (i.e., more than 100 millisec-
onds) in conversational speech.
The technological convergence brought about by the
migration to digital transmission was not unforeseen; it just
took time to come about, in part because federal regulatory
policy has been uneven. For example, in a 1999 congressional
hearing on data services within the telecommunications field,
320 Comcast Corp. v. Dept. of Rev.
Representative Markey, a long-time member of the House
of Representatives Subcommittee on Telecommunications,
Trade, and Consumer Protection (and, as of 2013, a Senator),
recounted the subcommittee’s “long history with the devel-
opment of competitive data services” and gave an over-
view of that history at the outset of the hearing. Hearing
on Deployment of Data Services, House Committee on
Commerce, Subcommittee on Telecommunications, Trade,
and Consumer Protection, 106th Cong, 1st Sess, 3 (June
24, 1999). In particular, Representative Markey described
hearings that he had presided over in the 1980s when the
subcommittee, with the goal of shaping regulatory policy,
took testimony on the technological convergence that broad-
band internet and digital networks would bring about. He
explained:
“The computer industry was invited to give us its views
[on regulatory policy] as well. We heard testimony from
John Scully of Apple; Mitch Kapor, the founder of Lotus,
John Gage of Sun Microsystems. We were told to get digi-
tal; that we were in a period of convergence; that a bit is a
bit is a bit. It didn’t matter if it was a voice bit, a data bit,
a movie bit, a music bit, a fact bit: all bits could flow over
the digital networks and use digital technology. And this
subcommittee got digital. We began to foster national pro-
posals to deal with the communications convergence.”
Id. at 4. That led Representative Markey to express his sur-
prise that, in 1999, not everyone was prepared to recognize
the realities of the technological convergence that by then
had firmly taken hold:
“Our efforts on all these issues eventually bore fruit.
We legislated in the midst of this digital convergence and
enacted the landmark Telecommunications Act of 1996.
That act broke down historic barriers to competition and
was designed to unleash a digit[al] free-for-all across all
market sectors and industries. Central to the act was the
notion that we would treat all entities based upon the ser-
vices that they were providing and neither based upon their
pedigree as a cable company or phone company nor on the
particular type of facility used to deliver this service.
“With all this history in mind, one can imagine my sur-
prise when I was told by someone recently that the Telecom
Cite as 356 Or 282 (2014) 321
Act was only about voice. Simply competition for voice bits.
There are apparently many people in the industry suffer-
ing from the same bout of telecommunications amnesia.
Some people now seem to be saying that a bit is a bit is a
bit, but some bits are more special than other bits. Rather
than communications convergence, people are proposing
digital divergence, proposing to rip data bits out of the bit
stream and treat them differently from voice bits. There
are also suggestions that identical telecommunications ser-
vices offered over different facilities should be treated dif-
ferently. How very undigital.”
Id. at 4-5. However well federal regulatory policy has or has
not responded to the convergence brought about by digital
transmission, that convergence—as a fact of technological
life—has occurred.22
22
In 2006, for example, the Senate Committee on Commerce, Science and
Transportation held 14 hearings to take testimony from (among others) the wired
and wireless telephone, cable, internet, and satellite industries on various com-
munication issues. One of those hearings was devoted entirely to the “phenom-
enon of convergence” and the continuing challenge of setting federal regulatory
policy for industries that were no longer meaningfully distinguishable in the
services they provide. See generally Hearing on Competition and Convergence,
Senate Committee on Commerce, Science, and Transportation, 109th Cong, 2d
Sess, 1-2 (Mar 30, 2006) (statement of Senator Ted Stevens, Chair). As regula-
tors, legislators, and academics alike persistently observe, federal regulatory pol-
icy has not yet come close to meeting that challenge. See generally, e.g., Kathleen
Q. Abernathy, The Journey to Convergence: Challenges and Opportunities, 12
CommLaw Conspectus 133, 133 (2004) (Commissioner, FCC) (“Formerly dis-
tinct categories of communications services are collapsing into one as voice,
data, and video are all transmitted via digital bits” so that FCC has become
“increasingly aware in recent years that this technological and marketplace con-
vergence demands fresh thinking by regulators.”); Rob Frieden, Adjusting the
Horizontal and Vertical in Telecommunications Regulation: A Comparison of the
Traditional and a New Layered Approach, 55 Fed Comm L J 207, 208 (2003)
(Pioneers Chair in Cable and Telecommunications and Professor, Penn State)
(discussing the failure of FCC “policies based on fixed service definitions and
relatively static assumptions about the industrial organization of telecommuni-
cations and information processing”); Senator Ted Stevens, The Internet and the
Telecommunications Act of 1996, 35 Harv J Legis 5, 7 (1998) (urging that FCC
policies have led to unnatural migration of telecommunication services to pref-
erentially regulated communication services). Nor have states necessarily wres-
tled successfully with realities of convergence in setting state taxation policies.
See, e.g., Hearing on State Taxation of Interstate Telecommunications Services,
US House of Representatives Subcommittee on Commercial and Administrative
Law of the Committee of the Judiciary, Serial No 109-120, June 13, 2006, 17
(Statement of Illinois Senator and President of the National Conference of State
Legislators, Steven Rauschenberger) (testifying that convergence has blurred
distinctions between telephone, internet, cable, wireless, satellite, and other
communications services, with the troubling result that “similar services can be
delivered by networks that are taxed very differently”).
322 Comcast Corp. v. Dept. of Rev.
B. Comcast’s Internet Access and Cable Television Services
That background brings us to the service-specific
dispute in this case: Are Comcast’s internet access or cable
television services “data transmission services” within the
meaning of ORS 308.505(2)? More specifically, are they
services that provide the means for transmitting electroni-
cally coded information between computers or computer-like
devices? The record before us answers that question unequiv-
ocally in the affirmative for both services. Although we need
not delve into the more complicated aspects of the technol-
ogy involved for either service, it is worthwhile to describe in
general terms how each service entails data transmission as
we have interpreted it for purposes of central assessment.
1. The Technology Used in Comcast’s Cable Tele-
vision Service
Comcast’s cable television begins with video pro-
gramming that Comcast obtains from three basic sources:
over-the-air broadcasts; programming transmitted to
Comcast via satellite; and “direct studio feed” over fiber optic
cable. Comcast then combines its source video program-
ming at a location called a “headend facility,” where it is
processed in a way that results in the actual programming,
menus, guides, and other services delivered to the customer.
Although the way that Comcast compresses and trans-
mits data across its network is proprietary, certain aspects
of it necessarily conform to industry standards.23 Thus,
Professor Nguyen was able to explain certain aspects of
Comcast’s cable television service with confidence. Comcast
uses a compression protocol (MPEG-2) to transmit data for
purposes of its video services. For its regular programming,
the data is transmitted from Comcast’s “headend” facility
23
Because of their proprietary nature, the exact protocols that Comcast uses
and how it combines its various sources of video were held confidential during
the trial before the Tax Court. The department therefore had to make its case
by presenting expert testimony as to how digital information—from an electrical
engineering standpoint—must be processed and transmitted through the kind of
infrastructure that Comcast uses (a combination of fiber optic and coaxial cable)
if it is to interconnect, as Comcast’s system does, with the internet and other com-
munication services, such as satellite transmission. The Tax Court ultimately
admitted the testimony of the department’s expert, Professor Nguyen, explain-
ing: “I understand your testimony to be that to some extent, given industry stan-
dards and given industry requirements, you can almost infer backwards [what
Comcast] must be doing in order for the whole thing to work.”
Cite as 356 Or 282 (2014) 323
to the customer’s home. For on-demand movies and other
video programming, the data is stored on servers, which are
“high end” specialized computer devices that store massive
amounts of data and are capable of transmitting that data
to individual customers on request.
For a customer to view the video programming, the
data generally first goes through a receiver in the form of
a “set top box,” which is connected to the customer’s televi-
sion.24 In effect, a set top box is a computer or computer-like
device with a microchip in it that gives it its functionality.
The primary function of the set top box is to take compressed
video data transmitted through Comcast’s infrastructure
and transform it into a signal that is usable at the customer’s
end. Set top boxes also, depending on the model of the box,
control the delivery of enhanced television services. Thus,
the model of set top box determines whether a customer will
receive high definition television service, on-demand pro-
gramming, or have the capability to record programming
for later viewing (digital video recording, or “DVR”). A set
top box “off the shelf” can do nothing, however. It is, in the
words of one of Comcast’s experts, “a dead device.” Comcast
must first direct “command-line code” to the box for the cus-
tomer to be able to view any television programming or have
access to enhanced television services.
2. The Technology Used in Comcast’s Internet
Access Service
Comcast’s internet access service provides high-
speed internet access to customers, thus permitting them, as
described by one of Comcast’s experts, “to be able to transmit
and receive whatever they are asking or receiving to either a
business, a service, or to another person’s home.” The server
requires a cable modem at the customer’s end, which sends
and receives signals to Comcast’s headend facility over the
24
Although the record is sketchy on the point, in some localities, Comcast
evidently uses a blend of analog and digital signals and delivers “basic” program-
ming (principally over-the-air broadcasts that Comcast is obligated to carry)
without a set top box of any kind. In those localities, customers who subscribe
to only basic service attach the coaxial cable carrying the signal directly to their
televisions. The record suggests that in most localities, however, the signal for
basic service is transmitted in digital form and a set top box is required to con-
vert it into analog form for use.
324 Comcast Corp. v. Dept. of Rev.
same infrastructure used for Comcast’s cable television and
VOIP (telephone) services, coding and decoding them in
the process. 25 After the data is transmitted to the headend
facility, Comcast “distribute[s] it out through a series of net-
works and routers and switches, out into the * * * worldwide
web.” For all data sent and received as part of its internet
access service, Comcast uses a standard digital data pro-
tocol (“DOCSIS,” which stands for “data over cable service
interface specification”). Using Comcast’s internet access
service to send and receive data, customers can browse the
web, transfer files using computer file transfer protocols,
exchange e-mail, and generally avail themselves of what-
ever information, services, and content is available via the
internet. To do so, a customer must have a personal com-
puter or other computer-like device capable of making use of
the data that Comcast transmits through the cable modem.
3. Are Comcast’s Services “Data Transmission
Services”?
Those descriptions of Comcast’s services are con-
cededly rudimentary and do not convey the technological
complexity involved for either Comcast’s cable television or
internet access services. But they are sufficient for the issue
before us. They demonstrate what Comcast does not really
contest in this case—that both services fundamentally
transmit information and other content in electronic form
between computers or computer-type devices capable of cod-
ing and decoding that content into useful form. The protocols
and compression algorithms used, along with other aspects
of the transmission, are complex and technical. Comcast
simply has not disputed, however, that what it transmits
over its cable network is predominantly digital data in the
form of bits. The fact that the content originates as video,
converts to bits for transmission, and then at some point
is video again does not make Comcast’s service something
other than one that transmits data. There are not, to borrow
from Representative Markey, voice bits, data bits, movie bits,
music bits, or fact bits. They are all just bits, compressed and
25
The label “modem,” Professor Nguyen explained, comes from the terms
“modulation” and “demodulation,” which refer to a complicated process by which
signals or data are put into a form for efficient and reliable transmission over a
medium, such as fiber optic or coaxial cable.
Cite as 356 Or 282 (2014) 325
organized for efficient and reliable transmission through a
digital infrastructure. It is only when a computer or com-
puter-like device on the receiving end of the transmission
converts them into a useful form that the original content
(such as voice, video, text) is available to the recipient. So
understood, the transmission service that Comcast provides
for both cable television and internet access is the essence of
what the legislature understood data transmission services
to be: “the transmission over telephone facilities or micro-
wave facilities [or other means] of data between computers
primarily, or data from a computer terminal into a com-
puter, or other nonverbal kind of data communication.” Tape
Recording, Senate Revenue Committee, SB 81, Feb 9, 1973,
Tape 10, Side 2 (statement of Victor Bredehoeft, Department
of Revenue).
C. Comcast’s Contrary Arguments
Comcast nevertheless makes a set of arguments in
favor of either a more narrow interpretation of “data trans-
mission services” or a more narrow application to Comcast’s
cable television and internet access services. We discussed
and rejected Comcast’s principal argument earlier—that
the legislature intended to reach only microwave private
line transmission of intracompany business data. Comcast’s
remaining arguments are better addressed against the
backdrop, set out above, of the evolution of the cable indus-
try and the technological convergence that has occurred in
the telecommunications field.
1. The Legislature’s Silence on Cable Television
Comcast takes the position that, however data
transmission services is defined and whatever else it may
include, the legislature could not have intended it to include
Comcast’s cable television service, because no one in the
1973 hearings mentioned cable television. That omission
is significant, Comcast argues, because cable television by
then was a well-established service in Oregon and through-
out the nation. It follows, contends Comcast, that the legis-
lature intended to leave the cable television industry subject
to local assessment only. According to Comcast, because the
legislature has never amended the statutes to specifically
address cable television services or to otherwise make those
326 Comcast Corp. v. Dept. of Rev.
services expressly subject to central assessment, the phrase
“data transmission services” cannot extend to cable televi-
sion, at least not consistently with the legislature’s intent.
The simple answer to Comcast’s argument is that
the cable television service that it now provides is not the
same service that the cable industry was delivering in
1973. When the legislature amended the statutes in 1973,
the demands for data transmission were nascent. Although
nothing in the record before us establishes precisely how
cable television services were delivered in Oregon in 1973,
Professor Nguyen’s uncontradicted testimony establishes
that they were not delivered through a digital network that
sent data to and from cable modems and through set top
boxes that convert compressed digital bits to and from ana-
log and other usable signal forms. It is unsurprising that
no one in the legislative hearings discussed cable television
given that the cable television industry was not then deliv-
ering its content through a data transmission service as the
legislature understood that terminology.
Sometime between 1973 and 2009, when the depart-
ment first centrally assessed Comcast’s cable television ser-
vice, the cable television industry—along with the rest of
the telecommunications industry—underwent a revolution-
ary transformation with the advent of high-speed internet
and digital networks. Put bluntly, since then, everything
has “gone digital,” cable television included. Voice communi-
cation is largely accomplished with data transmission; tele-
vision and video communication are largely accomplished
with data transmission; text communication is largely
accomplished with data transmission; information commu-
nication is largely accomplished with data transmission.
The legislature did not make the original or eventual con-
tent on the sending and receiving ends (e.g., voice, video,
text, information) a defining characteristic of what qualifies
as a data transmission service. The defining characteristic
is, instead, the format of the data transmitted. If the data is
in the form of electronic information coded for and transmit-
ted from one computer or computer-like device to another—
as Comcast’s television cable service now unquestionably
entails—it does not matter that, in 1973, the service was of
a different nature and went unmentioned by the legislature.
Cite as 356 Or 282 (2014) 327
Nor does it matter that the legislature in 1991
declined to amend the description of “communication” ser-
vices in ORS 308.505(2) to expressly include cable services.
Specifically, Comcast points to House Bill (HB) 2556 (1991),
which would have expressly added cable television to the cen-
tral assessment scheme by adding it to the list of businesses
and services that the term “communication” includes. HB
2556 did not make it out of committee and was not enacted
into law. The Tax Court, for its part, found that history dif-
ficult to ignore, noting that “[t]he actions and words of the
legislators and of the persons appearing before the legisla-
ture [were] not consistent with a conclusion that cable tele-
vision was already subject to central assessment under the
statute[.]” Comcast Corp., 20 OTR at 324.
There are two answers to Comcast’s reliance on
that history. One is the answer we have given in other cases:
What later legislators thought is irrelevant to what an ear-
lier legislature intended with an enactment, especially in
the context of a later bill that never became law. DeFazio
v. WPPSS, 296 Or 550, 561, 679 P2d 1316 (1984) (“The
views legislators have of existing law may shed light on a
new enactment, but it is of no weight in interpreting a law
enacted by their predecessors.”); Hilton v. MVD, 308 Or 150,
156, 775 P2d 1378 (1989) (“A later legislature’s failure to
change a previously enacted statute is not part of the legis-
lative history of that statute[.]”).
The second answer is specific to this case: The failed
1991 bill may show that, at that point in time, legislators
were not inclined to list the specific service of cable television
as a “communication” service along with “data transmission
services” and the others in ORS 308.505(2). That choice says
nothing, however, about whether cable television qualified
as a “data transmission service” as of 1991 or whether leg-
islators thought that cable television should be specifically
excluded if it did. As the testimony in this case suggests,
cable television likely had not migrated by 1991 to a digital
network platform and was not then delivering television pro-
gramming through data transmission. In this case, we need
not determine whether, before 2009, Comcast was a “commu-
nication” service within the meaning of ORS 308.505(2) and
ORS 308.515. See 356 Or __ n 6). The dispositive question
328 Comcast Corp. v. Dept. of Rev.
before us is whether, as of 2009, Comcast’s cable television
service is a “data transmission service” within the meaning
of ORS 308.505(2). Our conclusion that it is now a data trans-
mission service is a complete answer, regardless of what the
answer might have been in 1991.
2. The Legislature’s Silence on Internet Access
Service
Comcast makes a related argument in connection
with its internet access service. Specifically, it argues that
the legislature could not have intended internet access ser-
vice to be included in “data transmission services” because
that service did not exist as of 1973. Most of Comcast’s
points in that regard circle back to its premise, which we
have rejected, that the legislature intended “data transmis-
sion services” to describe the service of private line micro-
wave transmission of intracompany business data. From
that premise, Comcast argues that the legislature contem-
plated only a “discrete service” with a particular “function-
ality,” and internet access is simply a “portal” service, one
that gives users “myriad functionalities and capabilities”
beyond anything that the legislature contemplated in 1973.
Comcast emphasizes that it does not “own the internet,” and
no one does. Rather, Comcast urges, the internet consists of
individually owned pieces of a network interconnected with
each other through protocols and transmission standards
that make the interconnection possible.
Just as that argument did not detain the Tax Court,
it does not detain us. Comcast makes no effort to argue that,
for its piece of the internet network (which it concedes it
must maintain to provide internet access service), it does
not in fact transmit to and from its customers information
of all kinds (such as voice, video, and text) in the form of
data that must be processed at both ends by computers or
computer-like devices. Comcast’s only argument is that the
legislature did not foresee the existence of internet access
services, so even if internet access service is in a technical
sense a data transmission service, it is not subject to central
assessment because that precise application of the service
was not within the legislature’s contemplation in 1973.
Cite as 356 Or 282 (2014) 329
As we have already described at length, however,
the 1973 hearings establish that the legislature was antic-
ipating future developments—even if it did not have a con-
crete vision of that future—by amending the statute to
expressly include the emerging service of data transmis-
sion; the amendment was not intended to reach only the
particular use (microwave private line business data trans-
mission) that prompted the legislature’s attention. The fact
that internet access service did not exist in 1973 does not
place it beyond the reach of the policy that the legislature
enacted. If it qualifies as a data transmission service within
the meaning of ORS 308.505(2)—and we conclude that it
does—it is subject to central assessment whether it has been
in existence for 40 years or 40 days.
3.
The Specter of Unconstitutionality
Comcast’s final argument is that, if the phrase
“data transmission services” is interpreted broadly, it will
run into constitutional problems, a fact that should counsel
in favor of interpreting it narrowly. Comcast contends that
too broad a definition of “data transmission services” will
sweep up all forms of communication that involve, in some
way or another, the transmission of data. Comcast warns
that magazines, newspapers, online legal research provid-
ers, radio stations, billboards, and over-the-air broadcasters
could all be subject to central assessment as “data trans-
mission services,” reasoning that each involves the trans-
mission of data in the broadest sense of the word—that is,
the communication of information. In Comcast’s view, that
would place the department in the position of picking “win-
ners and losers” in terms of who is centrally assessed and
who is not. According to Comcast, for the department to play
that role would violate Article I, section 32 (taxes may not be
imposed without the consent of the people), and Article III,
section 1, of the Oregon Constitution (separation of powers).
Although that argument gave the Tax Court pause,
it should not have. Comcast’s argument depends on the
term “data” meaning information of all kinds, akin to the
definition of the singular form of the word “datum” that we
quoted earlier. But that is not the meaning that the legis-
lature intended. Rather, the full phrase “data transmission
330 Comcast Corp. v. Dept. of Rev.
services” has a technical meaning drawn from the telecom-
munications field. The phrase therefore means something
more exacting—it refers to the service of transmitting coded
electronic information between computer and computer-like
devices. It is difficult to see—and Comcast does not explain—
how many of the “forms of communication” that Comcast
fears will be swept into central assessment would qualify
under that definition. For example, publishing and send-
ing a magazine through the mail or delivering a newspaper
to the front step of a person’s home may be ways of trans-
mitting information from one place to another. But neither
example is a “data transmission service” within the mean-
ing of ORS 308.505(2). If, instead, the magazine or newspa-
per is put into digital form and made available for viewing
or downloading via the internet, the publication then is in
the form of data, as required by ORS 308.505(2). But the
publisher is not providing the service of transmitting the
data so that it can be read on someone’s computer or tablet
electronic reading device—that service likely is provided by
Comcast or some other for-fee internet access service. The
same is true of online research and myriad other kinds of
information and content accessible through the internet.26
In all events, the issue before us is only whether
Comcast’s internet access and cable television services
qualify as “data transmission services,” not whether other
services do. Comcast’s examples of the publications and
information services that it fears will be swept into central
assessment are exaggerated and do not persuade us that the
phrase “data transmission services” is so broad that it poses
constitutional concerns.27
26
As for Comcast’s other examples, billboards seem like a less than seri-
ous example. Over-the-air broadcast television and radio are more credible ones.
Although our resolution in this case will provide guidance for future applications
of ORS 308.505(2), we resolve no dispute other than the ones before us. We note
only that over-the-air broadcast television and radio involve a means of commu-
nication that differs in significant ways from the services before us. Among other
things, no subscriptions are required; viewers do not pay a fee to the over-the-air
broadcaster to view or listen to the programming. Nor does the broadcaster con-
trol who listens to or views the programming. Rather, the broadcaster releases
the signal or data into the public airwaves in a form that permits all persons
within range to view or listen to the broadcast, if they have the equipment needed
to receive the signal or data through the airwaves.
27
Other than the examples that it lists, Comcast devotes no analysis to its
constitutional concerns. Without more development of the vague constitutional
Cite as 356 Or 282 (2014) 331
D. The Tax Court’s Reasoning on Cable Television
As we have described, the Tax Court determined
that Comcast’s internet access service is a data transmis-
sion service, but its cable television service is not. In reach-
ing that conclusion, the Tax Court adopted an interpreta-
tion of “data transmission services” that neither Comcast
nor the department had proposed, and that neither defends
on appeal. Specifically, the Tax Court determined that, by
referring to data transmission as a “service,” rather than
to data as a commodity, ORS 308.505(2) reaches only busi-
nesses that, for a fee, take data owned or generated by one
party and move it to another party. Comcast Corp., 20 OTR
at 332. The Tax Court concluded that Comcast’s internet
access service therefore is a data transmission service, rea-
soning that the data that flows in the internet access ser-
vice is “not data created by Comcast or data as to which
[Comcast] has publication rights.” Id. at 335. But the court
reached the opposite conclusion for Comcast’s cable televi-
sion service, which it concluded principally transmits to cus-
tomers content in the form of data (e.g., television program-
ming, movies, and special channels by subscription) that
Comcast itself owns or otherwise has the right to transmit.
Id. at 333. The Tax Court explained:
“Comcast here sells content to its customers and delivers
the content over its system. A retailer sells products to cus-
tomers and may deliver those through the use of railroads
or air express. The mode of delivery does not convert the
retailer into a railroad under subsection (1)(a) of the stat-
ute or an air express company under subsection (1)(g) of
the statute.”
Id. at 331.
The flaw in the Tax Court’s reasoning is revealed
in that quotation: A retailer who sells products to customers
and uses the railroad to deliver them does not (at least in the
Tax Court’s example) own the railroad. The railroad is still
a railroad, and remains subject to central assessment. That
principles to which Comcast alludes, we decline to address Comcast’s argument
beyond pointing out that it is not based on “data transmission services” as we
have interpreted that phrase and the examples that Comcast cites do not demon-
strate that our interpretation is unmanageably broad.
332 Comcast Corp. v. Dept. of Rev.
would remain true even if the railroad were to use its own
transportation service to transport retail goods that it owns.
Said another way, the fact that the railroad is engaged in
dual businesses (retail and transportation) does not cause
it to lose its character as a railroad. The same is true of
Comcast. Here, the fact that it is in the business of both sell-
ing video content and transmitting it in digital form to its
customers does not divest Comcast of its character as a data
transmission service.
Nor does the context provided by the central assess-
ment statute as a whole support the Tax Court’s reasoning.
“Communication” services are listed in common with ser-
vices such as heating, gas, and electricity. ORS 308.515(1).
Those services all involve selling customers not only the ser-
vice of transmission, but also the commodity being trans-
mitted. We fail to see in the statutory text or its context
any basis to conclude that the legislature intended to dif-
ferentiate data transmission services based on whether the
data that the customer receives is data directed to it by the
service provider itself or by some third party. In addition,
we are not as confident as the Tax Court was that the dis-
tinction would aid Comcast in this case, because the record
shows that a significant portion of the data that Comcast’s
cable television service transmits is, in fact, digitized con-
tent owned or generated by others.28 Fundamentally, how-
ever, the distinction makes no difference under the statute.
E. Summary
As we have explained, based our analysis of the
text, context, legislative history, and technical meaning
of “data transmission service,” we interpret that phrase to
extend to any service that provides the means for the trans-
mission of electronically coded information between com-
puters or computer-like devices. If the service does that,
it is a data transmission service regardless of the original
28
The Tax Court did not take into account a significant aspect of Comcast’s
cable business: advertising that third parties pay Comcast to include in its pro-
gramming, which Comcast itself has characterized as a significant portion of
its overall revenue. For example, Comcast took in $1.5 billion from advertising
in 2008. The record also establishes that Comcast neither owns nor licenses the
so-called “must carry” content, which consists of, as characterized in Comcast’s
2008 SEC Annual Report, “the programming transmitted by most local commer-
cial and noncommercial television stations.”
Cite as 356 Or 282 (2014) 333
nature of the content that is converted into digital form for
transmission. That is, it does not matter if the data has been
converted from voice to bits, video to bits, text to bits, or
for that matter, atoms to bits.29 For purposes of our inter-
pretation, bits are bits. Likewise, it does not matter if the
means of transmission is fiber optic cable, coaxial cable,
microwave or other wireless conduit, the wired network tra-
ditionally used for telephone communication, or a means of
transmission not yet in use or conceived. What matters is
that the information or other content being transmitted is
in the form of data. Finally, it does not matter that the ser-
vice preexisted the 1973 amendments, and only since then
has evolved to become a data transmission service, or that it
postdates those amendments and is an unprecedented use
of data transmission services. The evidence in the record
about the nature of Comcast’s internet and cable transmis-
sion services is effectively undisputed and establishes that,
within the meaning of ORS 308.505(2), both services are
“data transmission services.”
IV. REMAINING ISSUES
The department raises two additional issues
under its assignments of error. The first arises under ORS
308.510(5), which provides that property used in both a cen-
trally assessed business and a non-centrally assessed busi-
ness is subject to central assessment if its primary use is in
the centrally assessed business.30 As we earlier described,
Comcast uses the same basic infrastructure for both its
29
For example, in existence now and on the horizon for widespread future
use is the technology of so-called “3D printing.” That development has already
made it possible to turn atoms into bits and bits back into atoms by digitizing the
information needed to do “print” (that is, construct, assemble, manufacture, and
replicate) everything from machine parts, to works of art, to food and medicine,
and to body parts. See generally Lucas S. Osborn, Regulating Three-Dimensional
Printing: The Converging Worlds of Bits and Atoms, 51 San Diego L Rev 553
(2014) (describing wide range of current and future uses for 3D printing, along
with legal issues that 3D printing presents); see also Hod Lipson and Melba
Kurman, Fabricated: The New World of 3D Printing (2013) (canvassing current
and anticipated uses of 3D printing technology).
30
ORS 308.510(5) states, in relevant part:
“Property found by the department to have an integrated use * * * in more than
one business, service or sale, where at least one such * * * service * * * is one
enumerated in ORS 308.515, shall be classified by the department as being
within or without the definition of property under [ORS 308.510(1)] accord-
ing to the primary use of such property, as determined by the department.”
334 Comcast Corp. v. Dept. of Rev.
cable television and internet access services. Because the
Tax Court concluded that Comcast’s internet access service
is a data transmission service and its cable television service
is not, the Tax Court had to further decide which service
was the primary use of Comcast’s property. The Tax Court
concluded that the property’s primary use was for Comcast’s
cable television service and, therefore, the property was
not subject to central assessment at all. Comcast Corp., 20
OTR at 337. The department challenges that conclusion,
asserting that the Tax Court’s methodology for determin-
ing primary use was flawed. We need not reach that issue,
however. Because we have determined that both Comcast’s
cable television and internet access services are data trans-
mission services, the primary use of Comcast’s property is
no longer an issue in the case.
The converse is true of the department’s second
argument, however. That argument presents an issue that
was moot under the Tax Court’s resolution of the case, but is
not moot under ours.
Specifically, before the Tax Court, Comcast chal-
lenged the maximum assessed value (MAV) that the depart-
ment had placed on Comcast’s centrally assessable prop-
erty for the 2009-2010 tax year. Briefly described, Comcast
argued that the amount of the assessment exceeded the
three-percent cap set under Measure 50. See Or Const,
Article XI, § 11(1)(b) (a “property’s maximum assessed value
shall not increase by more than three percent from the pre-
vious tax year”). The department responded to that chal-
lenge by arguing that Comcast’s centrally assessed property
falls within the exception for “new property or new improve-
ments to property.” Or Const, Article XI, § 11(1)(c)(A).
The department asks us to reach and resolve that
dispute, even though the Tax Court did not, urging that it
presents a purely legal question that this court appropri-
ately may resolve on appeal. Regardless of whether the
department is correct in characterizing the issue as purely
one of law, we decline the department’s invitation. The issue
entails an intricate question of tax law, one that involves
assessment procedures and practices that the Tax Court
deals with frequently. The statutes that provide for tax
Cite as 356 Or 282 (2014) 335
cases to be resolved first by the Tax Court, before coming to
this court on appeal, implicitly recognize the value to this
court of the Tax Court’s resolution of tax disputes in the first
instance. The MAV issue that the parties dispute is one that
is appropriately resolved first by the Tax Court.
The decision of the Tax Court is reversed, and the
case is remanded to that court for further proceedings.