City of Alameda v. Premier Communications Network, Inc.

• Decision Date: 22 May 1984
• Citation: 156 Cal.App.3d 148,202 Cal.Rptr. 684
• Court: California Court of Appeals
• Parties: CITY OF ALAMEDA, Plaintiff and Appellant, v. PREMIER COMMUNICATIONS NETWORK, INC., Defendant and Respondent. AO23536.

Page 684

202 Cal.Rptr. 684

156 Cal.App.3d 148

CITY OF ALAMEDA, Plaintiff and Appellant, v. PREMIER COMMUNICATIONS NETWORK, INC., Defendant and Respondent.

AO23536.

Court of Appeal, First District, Division 1, California.

May 22, 1984.

Hearing Denied Aug. 15, 1984.

Carter J. Stroud, City Atty., City of Alameda, Oakland, for plaintiff and appellant.

Farrow, Schildhause, Wilson & Rains, Richard D. Harmon, Megan Tootell, Michael J. Henderson, Oakland, for defendant and respondent.

RACANELLI, Presiding Justice.

The City of Alameda (City) appeals from a judgment (1) awarding Premier Communications Network, Inc., (Premier) a judgment on the pleadings, and (2) declaring City's Ordinance No. 1991, which imposed a tax upon "television subscription service" businesses, unconstitutional under the First Amendment to the United States Constitution and article I, section 2, of the California Constitution, and enjoining enforcement of the ordinance.

Ordinance No. 1991, ¹ enacted on December 4, 1979, amended the portion of the City's municipal code dealing with business licenses, by imposing a business license tax of 3 percent of annual gross receipts upon "[e]very person conducting a television subscription service business" and upon businesses providing emergency communications systems or alarms.

City alleged in an amended complaint that Premier was engaged in the television subscription service business in the City, under the name "Home Box Office", and had failed to pay the business license fee required by Ordinance No. 1991. It sought to recover 3 percent of Premier's gross receipts derived from its business in the City for the fiscal year 1979-1980 and each fiscal year thereafter. In responsive pleadings, Premier admitted nonpayment and denied liability on the ground that the tax violated the constitutional guaranties of free speech and press, and cross-complained to enjoin enforcement of Ordinance No. 1991 on the theory that the ordinance was unconstitutional and void as applied to Premier. City's answer generally denied the cross-complaint's charging allegations.

At the commencement of trial, on April 21, 1983, the court granted Premier's motion for judgment on the pleadings on the ground that Ordinance No. 1991 violated the First Amendment to the United States Constitution and entered a judgment declaring the ordinance unconstitutional and enjoining its enforcement. ² This appeal followed.

Premier is a multipoint distribution service, headquartered in Burlingame, California, which operates under the name "Home Box Office". It receives signals transmitted from outside the state by satellite at a location in the City of Berkeley and retransmits those signals by microwave to its subscription customers in Bay Area cities, including the City of Alameda. Premier's customers receive the microwave signals through an antenna leased from Premier for viewing via conventional television receivers. Premier provides programming, not otherwise available to television viewers, which includes recently released motion pictures, specially produced programs, sports events, and other entertainment and news programs.

The First Amendment prohibits the enactment of any law "abridging the freedom of speech, or of the press ...," and is applicable to state and municipal action pursuant to the Fourteenth Amendment. (Douglas v. Jeannette (1943) 319 U.S. 157, 162, 63 S.Ct. 877, 880, 87 L.Ed. 1324.) It is well settled that municipal ordinances are within the prohibition of the amendment. (Lovell v. Griffin (1938) 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949.)

There is no doubt that Premier, as a disseminator of motion pictures, news, and other information and entertainment programming, engages in conduct protected by the First Amendment guaranties of freedom of speech and press. In Weaver v. Jordan (1966) 64 Cal.2d 235, 49 Cal.Rptr. 537, 411 P.2d 289, cert. den., 385 U.S. 844, 87 S.Ct. 49, 17 L.Ed.2d 75, our Supreme Court invalidated an initiative measure banning the business of home subscription television in California as an abridgement of free speech guaranties. The court there observed that "[c]ommunication by motion picture, by radio and by television falls within the constitutional protection" and that "amusement and entertainment as well as the exposition of ideas" are encompassed within such protection. (Id., at p. 242, 49 Cal.Rptr. 537, 411 P.2d 289.) These principles are firmly embedded in the decisions of the United States Supreme Court. (See, e.g., Schad v. Borough of Mount Ephraim (1981) 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 ["Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. (Citations.)"]; Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501-502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 [motion pictures, like books, magazines, and newspapers, are included within free speech and free press guaranties even though sold for a profit]; Winters v. New York (1948) 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 ["The line between the informing and the entertaining is too elusive for the protection of that basic right (of free speech). Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine."].)

In its most recent pronouncement dealing with economic regulation of the press, our highest court reemphasized that "A tax that burdens rights protected by the First Amendment cannot stand unless the burden is necessary to achieve an overriding governmental interest." (Minneapolis Star v. Minnesota Comm. of Rev. (1983) --- U.S. ----, ----, 103 S.Ct. 1365, 1370, 75 L.Ed.2d 295, 303, citing United States v. Lee (1982) 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127.) While acknowledging decisions upholding economic regulations generally applicable to all businesses, the court concluded that "[d]ifferential taxation of the press ... places such a burden on the interests protected by the First Amendment that we cannot countenance such treatment unless the State asserts a counterbalancing interest of compelling importance that it cannot achieve without differential taxation." (460 U.S. at p. ----, 103 S.Ct. at p. 1372, 75 L.Ed.2d at p. 305.)

The challenged tax in Minneapolis Star was a "use tax" imposed upon paper and ink products consumed in the production of a publication. Such paper and ink became the only items subject to the state's use tax which were components of goods to be sold at retail. The court found that this treatment of publishers differed from that of other enterprises in at least two ways: the use tax did not protect the sales tax (which exempted periodic publications, resulting in no "complementary function" to serve), and was levied on intermediate transactions rather than ultimate retail sales. (460 U.S. at p. ----, 103 S.Ct. at p. 1369, 75 L.Ed.2d at p. 302.) The Supreme Court concluded that this special use tax, unparalleled under Minnesota's tax scheme, singled out the press for special treatment. In examining whether such differential treatment was constitutionally permissible, the court stated: "The main interest asserted by Minnesota in this case is the raising of revenue. Of course that interest is critical to any government. Standing alone, however, it cannot justify the special treatment of the press, for an alternative means of achieving the same interest without raising concerns under the First Amendment is clearly available: the State could raise the revenue by taxing businesses generally, avoiding the censorial threat implicit in a tax that singles out the press." (460 U.S. at p. ----, 103 S.Ct. at p. 1372, 75 L.Ed.2d at p. 305, fn. omitted.)

Responding to Minnesota's contention that the use tax was merely a less onerous, substitute tax which could be generally and permissibly applied to the press, the court held that the state had offered no adequate justification for the differential tax, which was impermissible even if it did not currently impose a greater effective burden since "the very selection of the press for special treatment threatens the press not only with the current differential treatment, but with the possibility of subsequent differentially more burdensome treatment." (460 U.S. at p. ----, 103 S.Ct. at p. 1374, 75 L.Ed.2d at p. 307, original emphases.) The court reasoned that the state's interest in requiring the press to bear its share of the tax burden could be achieved by taxing the press equally with others, thus avoiding differential tax treatment in accomplishing its revenue generating objectives. (--- U.S. at pp. ---- - ---- 103 S.Ct. at pp. 1374-375, 75 L.Ed.2d at pp. 307-308.) Accordingly, such differential tax violated First Amendment guaranties. ³

Under the teachings of Minneapolis Star, we find that the City's business license tax on television subscription service businesses fails to pass constitutional muster as applied to Premier. The record before the trial court and us, consisting of the pleadings and pertinent portions of the City's municipal code, unmistakably establishes that the challenged tax is differentially burdensome to television subscription service businesses, thus triggering an inquiry whether that burden is impermissible under the First Amendment.

Under the relevant provisions of the City's code, judicially noticed below, (see Evid.Code, § 452; Stencel Aero Engineering Corp. v. Superior Court (1976) 56 Cal.App.3d 978, 986-987, 128 Cal.Rptr. 691), an annual business license tax is imposed upon eighty-seven types of businesses under a variety of methods. These methods include flat fees, "per unit" fees, flat fees plus sums based upon the number of employees, and fees tied to gross receipts. ⁴ Only four businesses pay fees tied to gross receipts. Outdoor advertisers pay a...