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Volume 11 - Opinions of Counsel SBRPS No. 103

Opinions of Counsel index

Real property, definition of (telecommunications equipment) (cellular towers) - Real Property Tax Law, § 102(12)(i):

Cellular towers and associated property used primarily for cellular telephone service are real property within the meaning of section 102(12)(i) of the Real Property Tax Law.

Our opinion has been requested regarding the taxable status of cell towers and associated property. An assessor has submitted a letter she received from a representative for a particular wireless telecommunications company which makes essentially three arguments as to why the company’s property is not taxable.

First, the company argues that its property is not taxable under a plain reading of Real Property Tax Law, section 102(12)(i), because most, if not all of the property does not constitute “lines, wires, poles, supports and enclosures. . . .” The company representative supports this position by a review of the legislative history of this section of the RPTL and a comparison of present and prior statutory wording.

Second, it is contended that the property is not taxable because it is not a “fixture” under standards established in common law.

Third, because the company’s property can be used to transmit news and entertainment radio and television signals, the argument is made that such property fits within an exception to the definition of real property found in RPTL, section 102(12)(i).

After careful review of each argument, we respectfully disagree with the company’s representative. In our opinion, its cell tower equipment is taxable real property under the RPTL.

The first two propositions advanced, that the company’s cell tower equipment does not constitute “lines, wires, poles supports or enclosures” under RPTL section 102(12)(i), and that this equipment is not a fixture, were considered in a case involving similar property. Hon. Thomas Dickerson, J.S.C., in a tightly reasoned decision rejected these very arguments in Nextel of New York, Inc. v. The Assessor for the Village of Spring Valley, 4 Misc.3d 233, 771 N.Y.S.2d 853 (Sup.Ct., Rockland Co., 2004). While it is unnecessary to repeat all of Justice Dickerson’s reasoning, two aspects of the decision are especially relevant.

Nextel, just as the company herein, advanced a contextual analysis of the differing language of statutes to conclude that the present RPTL, section 102(12)(i), does not include all tower equipment in the definition of real property. Justice Dickerson rejected this type of analysis by quoting Justice Canfield’s decision in Voicestream Wireless Corp. v. Assessor of the City of Troy: “The Court is unaware of any precedent permitting courts, in the absence of either statutory ambiguity or direct evidence of legislative intent to speculate and make deductions based upon textual differences between statutes” (2 Misc.3d 723, 726, 771 N.Y.S.2d 335, 338 (Sup.Ct., Rensselaer Co., 2003)).

Justice Dickerson also rejected the argument that the cell tower equipment does not constitute fixtures, and consequently is not real property, under the common law. Citing Matter of Metromedia, Inc. v. City of New York, 60 N.Y.2d 85, 455 N.E.2d 1252, 468 N.Y.S.2d 457 (1983), he pointed out that one must consider whether the property is intended  “to be a permanent accession to the freehold” (4 Misc.3d at 243, 771 N.Y.S.2d at 861). He concluded that a cell tower base station “is, clearly, meant to be a permanent and integral part of a large and dispersed cellular communications system” (4 Misc.3d at 245, 771 N.Y.S.2d at 862). We find that Judge Dickerson’s analysis is on point and dispositive of the first two arguments of the company herein.

The last argument raised by the company’s representative also involves statutory interpretation. He points to RPTL, section 102(12)(i)(D), which excepts from the definition of real property “such property used in the transmission of news or entertainment radio, television or cable television signals for immediate, delayed or ultimate exhibition to the public whether or not a fee is charged therefore.” He states that the company offers its customers access to news and entertainment television and/or cable television signals, including news feeds and video from CNN, The Weather Channel, CBS, ESPN and HBO. He then concludes that such uses of the company’s network and its equipment on the subject property “trigger” the exception to taxation provided in paragraph D. There are no citations to any case law to support this interpretation, but reference is made to our Opinion of Counsel 10 Op.Counsel SBRPS No. 108.

To conclude that any use of cell tower equipment to provide news or entertainment radio or television, no matter how incidental to the primary business of providing cellular telephone service, serves to remove that property from the definition of real property is an expansive and inverted reading of the statute. The company’s equipment may be used to provide a mixture of telephone service and news and entertainment, but it is not exclusively used to provide news and entertainment radio or television. If a property were used exclusively to provide news and entertainment, the property would qualify to be excluded from the definition of real property. This was the situation in 10 Op.Counsel SBRPS No. 108. In that instance the property was a radio station tower, where the clear use of the property was principally, if not solely, for the transmission of news or entertainment radio. In contrast, the case at hand company’s property is primarily used to provide cellular telephone service, thus not fitting within the exception provided in RPTL, section 102(12)(i)(D).

April 6, 2007