Add by linxiaoqin

VIEWS: 0 PAGES: 237

									                 m         I
                                                  e ..
-4    ,   I...   .   1 .       .... . .   -              - .   I   .




 I
                                              I

     @mcust.                                                                      1




                                                                              .

                                                                          r




                                                                       .. ., ..        1

                                                                                       i

                                                                              Add. -       4 0.1
                                                       f   e
i
          IN THE COUNTY COURT OF PULASKI COUNTY, ARKANSAS



    4OMCAST OF UITLE ROCK, INC.

                                 Docket No.
                                                               PlAlNnFF




                            ayor,   City of
                             and CIW OF
                            SAS {all in their



                  rem taxes are assessed and
                   real and personal pmperfy


                                                           DEFENDANTS
                     CUMPUINT FOR REFUND OF TAXES




                 EXHIBIT H-4 --
    cu   of letter dated June 26, 2009 fram 'John A. Severino, Properly Tax
    Ma gsr for G~mcast,to Defendant Buckner formally notiFying the PulasW
       t Treasurer that the 'protested* amount of 2006 Personal Property Ad
        y
       em Taxes had been revised to an amount of $775,808.31 for Comwst
       I Television of Little Rock, Inc.




                                                               0 0 0 9 IO
                                   ,   ..   P.   "...   ,   . a .   ..   .   .*   . I . .   .I.   ...U.
                                                                                                          f
                                                                                                              .. .




        lune 26,2009

'     .




           .     ..       '




    3.""*..3.   -3   ..   .. ..I


                                                                         00091 I
                                                                                                              Add. -   403
         I
                                 a.
    -\
.   I
                      IN THE COUNTf COURT OF PUiAS& COUHCY, ARKANSAS



                                                   Docket No.




                   ssor of PolaskiCounty, Arkansas;
                   FULASKl COUNTY, ARKANSAS; ROB
                                   ntendent of the
                                    hoal DisMct; the
                                      SPECfAL DISTRtCf';
                                        Mayor, City of
                                     sas; and CrrY OF
                                     KANSAS (all In their
                  cia! capacttiea, and as represenhtivesof
                         dant-class of similarly situated

                           the   reaf and personal property
                                       rators forthe support


                                                                        DEFENDANTS
                                   COMPLAINT FbR REFUND OF TMES




                                   EXHIBIT I
             C1                                                     for
                     t the RegfonsBank statement {dated May 29,2009) modes held in the
             AI      m m Tax Protest Fund created by ihe Treasurer of Pulaski County,
             AI      as.




                                                                                          . . '
                                                                                          I   f




                                                  .. ..* ... ...
                                                                                          1   0

                                         *   .-                I   L.




                                                                            0009 I 2
                                                                                         Add. -   40.4
                                      I   e                                     ..       0




                                                                                         ACCOUNT#   4




       05128       Doposll-ThAmYOU                                                                  405,6845




                                                                            .    .
                                                          ACCOWTS.
                                               PEASE CONTACT YOUR TREASIIRY
                                           MANAGfMENTSPEclAUSTiFYOU HAVE
                                          QUESTDNS REQAROING THESE CHANGES.




f . .. .                   ........            ... .*..     .          . . ..
           -   I   f   .

                                          .*                    ...

                                                                      ...   ...I_    .


                                                                                              0 0 0 9 13
                                                                                                               Add. -   405
            IN THE CQUNWCOURT OF PULASKZ COUNTY, ARKANSAS

COMC ST OF U T L E ROCK,1NC.

                                                                           PLAINTIFF
V.                              Docket NO.20094

DEBR BUCKNER, In her offidal capacity as a e
Counl Treasurer of Pulaski County, Arkansas;
JANE ROUTMANWARD, inheroffidai capacity
as #h County Assessor of Pulnski County,
Arkan is; and PUIASKI COUNTY, ARKANSAS;
ROB CGILL, Acting Superintendent ~f the                          F m o m ~ , m o16:27:21 UI
Pulasl County Special Schoof DisMct;                             Pat O'Brieq Pulaski Circuit Clerk
                                                                 U1
                                                                                                     -
                                                                                                     I




PUIA 11 COUNTY SPECIAL DISTRICT; GARY
FLETI IER, Mayor, Clty of Jacksonville,
Arkan r ; and CITY OF JACKSONVILLEJ
         s
ARKA SAS (all in thejrofklat capacities, and as
reprer ntatives af a Defendant-class of similarly
sltuatt I cuunties, cities and school distrfcta,
where ,advaloremtaxes are assessed and JevJed
upon le real and personal property of cable
         n
tetevh i operators for tha support o suchf
count 5, ctttes and school dIstdc&)
                                                                         DEFENDANTS

                           & j N
                               -
             Comes now the undersigned counsel fur the Pfalntiff, and, pursuant to the

        i
provislo s of Rule 9 of the Disldlct Court Rules, does hereby state that the Plaintiff fs
appeali g to the Circllft Courf of Pulaskl County Arkansas from the Order of Dlsrnissal

entered n this County Court proceeding by fha presldhg County Judge on February 16,
2010.

             The undersignsdcounselforthe Plaintiff furtherstatesthat he has requested,
Inwritl ,that the m nyClerk of Pulaski County, Arkansas, prepareand certify the entire
                   ut
mwrd at has been cornplled by the Clerk of the County Court in this County Court
proceed g and that such record must be lodged in the omce o lhe Circuli Clerk of the
                                                           f

PuIasW ounty Clrcutt Court, on or before March 18,2010, pursuant to the pro           EXHIBIT




                                                                      0009 I 4              Add. - 406
Rule 9 of the District Court Rules. A copy o thls waen cornmunicatlon to the Cui
                                            f
Clerk regarding the deadline for the certfncatfon and fltirtg of such record Mth the Ci

Clerk of Pulaskl County, Arkansas i attached hereto as m i A.

              Executed
                                  s
                                ' day of
                                                        b
                                                        it                            t   I
                                                                                              it




                                   By:




                                           -          ?!
                                           ~atfte~cia Sayre
                                           401 W. Ca itol Ave., SU~€B
                                           Llttle Rock Arkansas 72201
                                           Telephone: (5011374-9Ot 0
                                           Facsimlle: (501) 374-8510

                                           cbro&em-
                                                                    502




                                           Eric S. Trash, Georgla 8ar No. 691831
                                           Sulhedand Asbll i Brennan, LLP
                                                            3
                                           999 Peachtree Street, NE
                                           Atlanta, Georgia 30309
                                           Telephone: (404) 853-8579
                                           Facdmifee:(404) 8538808
                                              .
                                           eric #resh         com
                                           ATTORNEYS FOR THE PLAINIFF




                                             -2-




                                                                     0009 i 5
                I, Eugene G. Sayre, hereby    e
                                             cm    that a copy of the foregdng Notice of
Appei      has this date been sewed by U. S. Mail upon the following:
Ms.K l Burnett, CountyAttomey
        a                                          Mr. Kobert E. Barnburg
Room 00,   Pula# County Admin. 8Mg.                Attorney for City of Jacksonville
201 s ith Broadway                                 303 N. James street
Uttle I ~ck, 72201
           AR                                       .
                                                   P 0. Box 5913
                                                   Jacksonville, Arkansas 72078
Mr. JE     Bequette
Bequt      e & Bllhgsley
425 H      s4 Capitol Avenue, Suite 3200
Little f   ck, Arkansas 72201-3469

                Done at Little Rock, Arkansas, this




                                             -3-                                               I




                                                                                               i
                                                                        0009 I6
                                                                                           Add,- 408
*\
     i
         .
         1       1

                                                 HATFIELD & SAYRE
                                                                                                     ..


                                                            February Itl,2010



                     Hon, P a t h i e n
                     Gwnty Clerk, PutadtiCounty, Aikansas
                                 -
                     Rmin t 00 Pulaskl County Courthouse
                     401 West Markhsm Weat
                            &
                     LltMa R, Arkansas 72201

                                     Re:            3St Of L l t b Rmk IW. V. Debra Buckner. 8tal.
                                       -   *
                                               Pulaski County Court, Docket No, 20094
                                               Claim for Refund of Ad Valorem Taxes

                     Dear Mr. U'Brfen:

                                  As counselfor the Plaintiff~ln abwwaptioned County Court acfioi
                                                               the                                        e
             .       are causing t be M,
                                  o        today, a Nafice dfAppeal from the County Court Judge's Orc     rf
                     Dismissalentered in the aWve-mptionbd proceeding on February 16,2010.

                                   Please note mat in this Notice o &peat we are exprksly making rer
                                                                    f
                     and demand upon you, as #e County Clerk, that the enff re remd compiled in fhk
                     proceeding In tha Pulaski Cwnty Court be certjfied and presented to the Cmt Ck
                                                                                               j i
                     Pulaskl County, Arkansas, no I a t q t h a n March 18, 2010, al in accordance wd
                     provisions of Rule 3 of the Disln'd Court Rules.
                                  If you have any questions, whafswver, please do notheslhte to contai    I
                                                                                                          B
                     at your convenience.
                                                                                                          1 .
                                     With .bast personal regards,




                 . EWkmb
                     Enclosure
iU#8

MS. Pamela Wilmuth
Mr. Eric Tmsh
Mr. ChWpher 8rOc)reft
Ms. Karla Burnett
Mr. Jay Bquetts
Mr. Robert E. Barnburg




                         I




                             0009 i 8            410
                                        Add. -
I               IN THE CIRCUIT COURT OF PUIASKI COUNTY, ARKANSAS
                                      SECOND DfVlSION

    COMCAST OF LIlTLE ROCK, INC.                                                PLAIN    =F
    V.                                             Docket Nu. 6O-CV-?O-t473

    SARAH M. BRADSHAW, in her official capacity as €he
    Director of the Tax Division of the Arkansas Public
    Service Commission; ARKANSAS PUBLIC SERVICE
    COMMISSION; DEBRA BUCKNER, i her officialn
    capacity as the County Treasurer of Pulaski County,                                  5:?6
    Arkansas, JANET TROUTMAN WARD, in her official                                        Circuit Clerk
    capacIty of the County assessor of Pulaski County
    Arkansas; and PUIASKI COUN'PI ARKANSAS; ROB
    MCGILL, Acting Superintendent of the PUIASKI
    C O U W SP€CIAL SCHOOL DISTRICT; GARY                                                llllllR
    FLETCHER, Mayor, City of Jacksonville, Arkansas; and                                 183257403
    CITY OF JACKSONVILLE, ARKANSAS; {all in their                                        R 9 Pager
    ufkial capacities, and as representatives of a                                       t m:55 PM
    Defendant-class ofsimilarly situated munties, cities and                                  FIN
    school districts, wherein ad valorem taxes are assessed
    and levied upon the real and personal property of cable
    television operators of the supportof such counties,
    c W s and school dlstricts).                                              OEFENL NTS



     PLAINTIFF'S RESPONSE AND OPPOSITION TO MOTION TO DlSMlSS FILE
      DEFENDANTS SARAH BRADSHAW AND TflE ARKANSAS PUBLIC SERVI
                           N
    COMMISSION AND JOINED I BY DEFENDANTS ROB MCGtLL AND THE PU
    COUNTY SPECIAL SCHOOL DISTRICT; DEFENDANTS GARY FLETCHER, M  i
       CHY OF JACKSONVILLE, ARKANSAS, AND THE CITY OF JACKSONVILI
     ARKANSAS; AND DEFENDANTSDEBRA BUCKNER, JANET TRQUTMAN W
                      AND PULASKl COUNTY, ARKANSAS

           Comes now the Plaintiff, Corncast of Little Rock, lnc. (hereinafter "Cornc t" or

    "Plaintiff),by and through its undersigned counsel, andforIts Responseand Oppo:      3n to


    the Moiion to Dismiss the Plaintiffs Complaint filed originally by Defendants arah

    Bradshzlwthe Arkansas Public Service Commission (hereinafter "APSC Defendant: , and

    which Motion to Dismiss has subsequently been joined in by Separate Defendan Rob
    McGiIl and the Pulaski County Specjal School DlstFicf; by Separate Defendant Sary

    Fletcher, Mayor, City o Jacksonville, Arkansas, anb the City of Jacksonville,Arkansi ; and
                           f

                                                                       000695
                                                                                                Add.-     411
Pulaski C wnty Assessor and by Pulaski County, Arkansas, and does hereby state and
allege as 'ollows:

         .
        *t 'le Plaintiff denies each and every allegation contained in Paragraph 1, and as

further ek borated in €heDefendants' Brief in support o the Motion to Dismiss.
                                                       f
        2. Nith regard to the allegationsset forth in the first sentence of Paragraph 2of the

APSC De 'endants' Motion to Dismiss, the Plaintiffacknowledges the authority of the Tax

Division o 'the Arkansas Public Service Commission (hereinafferthe"APSC")to determine,

annually, he "assessedvalues' of the taxable real and personal property uf utilities and
common carrier buslnesses,as set forth i Ark. Code Ann. 9 26-24-101 through 0 26-24-
                                        n
103,but t le Plaintiff denIes that it (OF any other operator of a cable television system in

                    n
Arkansas: I engaged i the businesses of a utility or common carrier. The Plalntiff further
          s
asserts, a%rrnatively,that the Tax Division of the APSC was granted the authority by the

Arkansas 3eneral Assembly to assess, for ad valorem tax purposes, the value of the real
and perscnal of the operators of cable television systems solely under the express
provisions of Act 175 of 1975 (Ark. Code Ann.      5 26- 26-1801 through § 26-26-1803),
Subchaptcir 18 of Chapter 18 of Titre 26 of the Arkansas Code Annotated of 798'1, as

Amended.

       Wit 1 regard to the allegations set forth In the second sentence o Paragraph 2 of
                                                                         f
the APSC Defendants' Motion to Dismiss, the Plalntiff states that It does not know what
statutory E uthority the APSC's Tax Divisfon relies upon to send the Plaintiff, annually, an

Annual Ac Valorem Tax Report (Form TD-l , Cable Television), and therefore denies the

allegation$set forth by the APSC Defendants in the second sentence of Paragraph2 of the

APSC's M~tioion Dlsmbs.
              to

9 154361.I                                   2

                                                                     000696
i
          With regard to the allegations set forth in the third sentence of Paragraph 2 4 f the

    APSC Defendants' Motion to Dismiss, the Plaintiff affirmatively asserfs that it i not I




    engaged in any of the businesses of the utilities or common carriers listed by the GE eml

    Assembly in the express provisions of Ark. Code Ann. 4 26-26-1 601. Since Ark. Cock nn.

    5 26-26-1610 I part of Subchapter 16 of Chapter 26 of Title 26 of the Arkansas
                 s
    Annotated of 1987, as Amended (which Subchapter deals solelywith the assessrnei
    ad valorem tax purposes, of the real and personal property of the 'utilifies"and "corn
    carriers* that have been expressly listed by the Arkansas General Assembly in
                                                                                              162


    APSC's Tax Division cannot legallyor constitutionally determine the ''assessed value      of

                                                                                              of
    o any other cable fefevislon system operator conducting buslness in the Stat
     f                                                                                        Df




                                                                                              IX

                                                                                              al

                                                                                              :e

                                                                                              §



                                                                                              IS

                                                                                              :r
                                                                                              lY

                                                                                              lY

                                                                                              lY
                                                                                              is




                                                                                                    Add.- 4 1 3
I
    classifiet s a *common carrier"or as a 'utility, 'under any o the prnvisions ofsubchapter
                                                                 f
    16 o Chi ter 26 or Title 26 o the Arkansas Code Annotated of 1987, as Amended.
        f                        f
           3.   With regard to the allegatlons set forth I the first and second sentences of
                                                         n
    Paragr a ~3 of the APSC Defendants' Motionto Dismiss, the Plahtiff acknowledges and

    admits tt allegations contahed in the first and second sentence of Paragraph 3 of the

    APSC DI mdants' Motion to Dlsmlss. However, the Plaintiff affirmatively asserts (with

    regard tc l allegations contained in Paragraph 3 of the APSC Defendants' Motion to
               e
    Dismiss) at the Plaintiff has filed a First Amended Complaintin thls civll actionwhlch First

    Amendec :omplaint eliminates any and all allegations (that may have been set out I its
                                                                                      n
    original C nplalnt) that may have stated fhat the Plaintiff was seeking, in any way, in thls

    civil actic filed in this CIrcuR Court, to appeal to this Circuit Court from any dedslon
    rendered        the APSC Defendant, pursuant to the provisions of Ark. Code Ann. 5 26-24-

    123.

           n    Plaintiff further affirmativelyassertsi this clvil action that there exlsts a totally
                                                       n
                                                 n
    separate atutory provision for it to utilize I seeking a refund of its overpayments of ad
    valorem 1 :esto the Pulaski County Defendantsfor the 2005,2006,2007,2008 and 2009

    ad valor6       fax years. The Plaintiff affirmatively asserts that the provisions of the Real
    Propew      Nners Bill of Rights (Act 572 of i999), especially the provisions of Section 8 of.

    Act 572 c   999 {Ark. Code Ann,      8 26-35-901), constitutesa separate statutory procedure
    and ctea    j   subject matter jurisdiction in this Clrcuit Court for the Plaintiff to rnalntain a
    separate iuse of action for the refund of the ad valorem taxes that it alleges that it
    overpaid r each of these five (5) ad valorem tax years, all as more fully set forth in the
    Plainttfh irst Amended Complaint and as further elaborated in the Defendants' Brief in

    support I the Motion to Dismiss,

    9154381.l                                        4

                                                                             000698
                                                                                                     Add-   414-
        4. The Plaintiffdenlasthe atlegatrons contained in Paragraph 4 of the Defen ants'

Motion to Olsmks and the Plaintifffurther affirmatively asserts, as further elaboratec In in

the Defendants' Brief i Support of its Response and Opposition to the APSC's Mo rnto
                       n
Dismiss, that the allegations set forth in Paragraph4 of the APSC's Motlon to Dismisl lave

nothing to do with the Plaintiffs sole cause of action (asserted under the provisions 4 Ark.
Code Ann.   5 2835-9011In the PIalntiffsFirst Amended Complaint. Therefore, the P intiff
asserts thatthe allegationsset out in Paragraph 4 of the APSC' Motion to Dismiss a           t       not

germane to   the matters in controversy in this civil action, under the allegatlons          . the

Plaintiffs First Amended Complaint, since the Plaintiff is not seeking, in this civil acti   1,       to

appeal to this Circuit Court from any admlnistrative order in any proceeding befo            I       the

APSC.

        5. The Plaintiff denies the allegations contained in Paragraph5Of the Defen mts'
Motion to Dismissand the Plainfifurther affirmatively asserts, as further elaboratet in in
€heDefendants' Brief in Support of its Response and Opposition to the APSC's Ma              n
                                                                                             I to
Dismiss, especially as to the APSC Defendants' allegation in Paragraph 5 of the AI           SC'S

Motion to DIsmlss that the provisions of Ark. Code. Ann. § 26-24-123 is the sol and
exclusive method or procedure for a corporate taxpayer to utilized to challenge an           'SC

assessment. The provisions of Ark. Cade Ann. 5 26-35-901(a) provide an alter W e
statutory method created by the Arkansas General Assembly for a taxpayer to uti              R        to

challenge an APSC assessment, since fhis statute expressly provides that 'whe any

person has paid taxes on real property or personal property, erroneously assesst                 I   as

defined and described in Q 26-28-1 11(c), upon satisfactory proof being adduced                  the

county of this fact. the county courf shall make an order directed to fhe county tre;        Ur6f

refunding to the person the amount of tax so erroneously assessed and paic                           All

9154361.1                                      5

                                                                       000699
                                                                                                           Add.-   415.
J   erroneoi j assessmentclaimsfor property tax refundsshall be made withln three (3) years
    from the iate taxes were paid.# Accordingly, the Plaintiff dentes the alfegationthat this

    CIrcuil C utt lacks statutory authority [Le.,subject matterjurisdiction) to hear the cause of
    action SE for in the Plaintiffs First Amended Complaint. Therefore, the Plaintiff asserts

    h a t the i legations set out in Paragraph 5 ofthe APSC' Motiun to Dismiss are not germane

    to the rn: ters in controversy in this civil action, under the allegationsof the Plaintiffs First

    Amender Complaint, since the Plaintiff i not seeking, in this civil action, to appeal to this
                                           s

    Circuit C urt from any administrative order in any proceeding before the APSC.
                6. The Plaintiff denies each and every allegation contained in Paragraph6 o the
                                                                                           f
         t
    APSC D kndants' Motion to Dismiss and as further elaborated in the Defendants' Brief In

    support 1 F this Response and OpposAIon to the Motion to Dlsmtss.

                7 The Plaintiff acknowledges the statements contained in Paragraph 7 of the
                .
    Defendai i' Motion to Dismiss, but the Plaintiff further affimatively asserts that the
              s
    documer          s attached to the APSC Defendants' Motion to DisrnIss are not germane to the
    matters I controversy in this civil action, under the allegations of the Plaintiffs F r t
                                                                                         is
    Amendet Complaint, since the Plaintiff I not seeking, in this clvll action, to appeal to this
                                           s
                   t
    Circuit C ~ rfrom any adminlstrative order in any proceeding before the APSC.
             c

                a.    The Plaintiff acknowledges the statements contalned in Paragraph 8 of the

    APSC De endants' Motion to Dismiss, but the Plahtifffurther affirmatively asserts that the

    statemen 5 alleged i Paragraph B of the APSC Defendants' Motion to Dismiss are not
                        n
    germane o the matters in controversy in this civil action, under the allegations of the

    Plaintiffs :Irst Amended Complaint, since the Plaintiff is not seeking, in this civil action, to

    appeal to this Circuit Court from any administrative order In any proceedlng before the
    APSC.

    9154361.1                                        6

                                                                          000700
                                                                                                        Add. - 416
I               9.    The Plaintiff acknowledges the statements contalned i Paragraph g
                                                                           n
    Defendants' Motion to Dismiss, but the Plaintiff further affirmatively asserts 11
    arguments contained in the APSC Defendants' Brief inSupport of Motlon to Dismlss
    relate to any matter dealing with appeals from administrative proceedings befc

    APSC) are not germane to the matters in controversy in this clvll action, unc

    allegations of the Plaintiffs First Amended Complaint, since the PlaintiffI not see1
                                                                              s
    tMs clvil action, to appeal to this Circuit Court from any administrative order

    proceeding before the APSC.

                10,    There is being filed (simultaneouslywith the filing of this Respon:   and

    Opposition to the APSC Defendants' Motion to Dismiss) the Plaintiffs Brief in Sup Irt of

    the Plaintiff's Response and Opposition to the APSC Defendants'Mufionto Dismiss biCh
    Brief i incorporated herein, as if stated word for word.
          s
            WHEREFORE, the Plaintiff, Corncast of little Rock, Inc., pmys that this Co t wilt
    enter an Order denying the APSC Defendanfs' pending Motion to Dismiss, that ha! been

    filed or has been joined in by all named representative Defendants, for the reasa        ; set


    forth above and in the Plaintiff% Brief i Support ofthe Plaintiffs Response and Opp ition
                                             n
    to the Defendant's Motion to Dismiss.

                                                       Res      u    ubmitted,


                                                        $
                                                        !
                                                       &A                                    17


                                                       Ark. Barhlo. 75111



                                                       Ark. Sar No. 2005192
                                                       HATFIELD & SAYRE

    0154381.1
                                                   7

                                                                          00070 I
                                                                                                 Add,-   417
                401 W.Capitol Avenue, Suite 502
                Lime Rock, Arkansas 72201
                Telephone: (50113749010
                Facsimile: (5091374-8510
                gsawe@handsark.com
                cbrockett@handsark.com

                ErIc Tresh
                SUTHERIANDASBILL & BENNAN LLP
                999 Peachtree Street, NE
                Atlanta, GA 303043996
                (404) 853-8579 Telephone
                (404) 853-8806 Facsimlle
                Eric-tresh@sufherland.com

                AlTORNEYS FOR PLAINTIFF




9154361.1   a

                                                  Add.-   418
                              CERTIFICATE OF SERVICE

       I, Eugene G.Sayre, hereby certify €hata copy of the foregolng PlaintiffsRe!   m e
and Opposltion to Motion to Dismiss Filed by Defendants Samh Bradshaw a              I the
Arkansas Public Service Commission and Joined in by Defendants Rob McGiII s          I the
Pulaski County Special School District; Defendants Gary Fletcher, Mayor, 4           y o f
Jacksonville, Arkansas, and the City of Jacksonville, Arkansas; and Defendants       ebra
Buckner, Janet Troutman Ward, and PulaskiCounty, Arkansas has this date been         .wed
by U. S. Mail upon the following:
Ms. Karla Burnett, County Attorney             Mr. Paul J. Ward
Room 400                                       Mr. Kevin Lemley
Pulaski County Administration Buildhg          Arkansas Public Senrice Comrnis! n
201 South Broadway                             1000 Center Street
Little Rock, Arkansas 72201                    Post Ofice Box 400
                                               Little Rock, Arkansas 722034400
Mr. Jay Bequette
Bequetle & Bililngsley                         Mr. Robert E. Barnburg
425 West Capitol Avenue, Suite 3200            Attorney for Ct of Jacksonville
                                                             iy
Little Rock, Arkansas 72201-3469               303 N. James Street
                                               Post office BOX 5913
                                               Jacksonville, Arkansas 72078

                                           h
        Done at Little Rock, Arkansas, on t L 24*




9154361.1                                  9

                                                                 000703
                                                                                         Add.-   419.
I                    IN THE CIRCUIT COURT OF PUiASKI COUNTY,ARKANSAS
                                           SECOND DIVISION

                    7 OF LITrLE ROCK, tic.                                           PLAINT1FF
    v.                                                   Docket No. G W V - I 0-1473

                      BRADSHAW, in tier official capacity as
                      of the Tax Division of the Arkansas Public
                        ission; ARKANSAS PUBLIC SERVICE
                     ON; DEEM BUCKNER, in her official
                      the County Treasurer of Pulaski Caunty,
                     ANET TROUTMAN WARD, in her official
                     the Comfy assessor of Pulaski County
                     nd PULASKI COUNTY ARKANSAS; ROB
                    Acthg Superintendent of the PUIASKI
                         CIAL SCHOOL DISTRICT: GARY
                       Mayor, City of Jacksonville, Arkansas;
                      F JACKSONVILLE, ARKANSAS; (all in
                      capacities, and as representatives of a       60CY-10-1413  6Bl-60M32074W
                     lass of similarly situated counties, cities    M O LITTLE ROCK V SR 14 Pages
                                                                      S F
                                                                       T
                     districts, wherein ad-valorem taxes are          W
                                                                    P I CO                    3E
                                                                                  8512412816 0 : PPI
                          levied upon the real and personal         CIRCUIT COURT               FI51
                        le televlsion operators of the support of
                        cities and school districts).                             DEFENDANTS


                                                                            SITION TO MOTION
                          LED BY DEFENDANTS SARAH BRADSHAW AND THE ARKANSAS
                                                               TS ROB MCGILL
                                                            EFENDANTS GARY
                                                             AND THE C W OF
                                                                      I




    9142027.4   -
I
    Arkansas General Assembly, when the Legislature enacted Act 572 of 1999, i                  . the
    Arkansas PropertyTaxpayers Bill of Rlghts (hereinafter referred to as the "Taxpa: r Bill

    of Rights"}. Section 8 o Act 572 of 1999 {Ark. Code Ann. Q 26-35-901) spec cally
                            f
    provides that an ad valorem taxpayer may file an action seeking fo recover a ref id of
    erroneously assessed ad valorem taxes that the taxpayer paid within three (3) yt            FS of


    Institutlng the claim for refund action.   '
                 Rather than permit this Circuit Court to determine whether Corncast's          fund

    claims are valid, the Defendants ask this Court to dismiss Corncast's claims ai I bar                      !-




    Comcast from ever seeking a judicial review of its claim f r its claim for refund f the
                                                              o
    erroneously assessed ad valorem taxes, based upon the value of its intangible prr: em-

    However, the Taxpayer Bifl of Rights provides taxpayers a separate cause of ac              ,n to
    bring a refund claim for erroneously assessed ad valorem taxes filed within thr               (3)
    years of the date of the payment by the taxpayer of an emneous assessment, See
    Ark. Code Ann.       5 26-35-901; See also Avaya, Inc. v. Janet Troutman Ward, Cat          NO.

    2007 O O S i 7 9 (Circuit Court of Pulaski County, Sixth Division, June 22, 20091,I hlch
    declsion recantfy upheld a taxpayer's right to a property tax refund, which refund Iaim
    was filed within three years of the payment of the questioned ad valorem                    xes,


          The Plaintiff has filed a First Amended Complaint in thls civil action, whicl         First
    Amended Complaint supersedes the allegations contained in the Plainfiffs o                  ginal
    Complaint. This First Amended Complaint has eliminated any and all allegation!              :that
    may have been set out in fhe PIaIntiffs original Complaint) stathg that the Plainti         was
                                                      n
    alternatively seeking, in this civil action filed i thls Circuit Court, in any way, pursi   I t to
    the provisions of Ark, Code Ann. 3 26-24-123, appeal to this Circuit Courl fro1
                                                          to                                     any
    adrnlnisfrative decision rendered by the APSC. Thus, the fillng of fhis First Am1           ided
    Complaint has completely mooted the bask asserted by the APSC Defendants fo                 their
    Motlon to Dismiss the PIalntifPs Complaint




    9 142027.4
                                                   2

                                                                          000705
                                                                                                       Add;-        421
pursuant             the Taxpayer's E3111 of Rights), Corncast's claims for refund were brought

within the hree year statue o limitations provided for in the Taxpayer Bill of Rights and
                             f
no Judick =our€ar administrative agency bas ruled on the merits of Corncast%claims.
            D€ mdants assert that Corncast's 2005-2008refund clalms are barred by the

equitable Joctn'nes of res judjcata,               Defendants misconstrue the    law and fail to
acknowk y that Corncast's refund clatms were brought under a separate cause of
         e

action. 1 :cause Corncast's claims before this Court constitute a separate cause of

action, th Court has jurisdiction to review such claims for refund, de novo.
            Fu          the equitable doctrine of res judfmta does not bar a judicia\ court of
cornpetel                         from reviewing Corncast's refund clalrns. Defendants are unable

to point c
         t           single instance where an Arkansas judicial court was barred from ruling on
a taxpayr            separate cause of action based on the prior ruling of an administrative

agency. T
                 4   the contrary, Arkansas courts have held,that the application of res judicata
does not a >ly as forcefully to the decision of an administrative agency, particularly

when such xlsions have never had Judicialreview. The Supreme Court of Arkansas

has expres ?d cuncern about applying the doctrines to unrevlewed administrative

                     1 if this Court was to grant Defendants' Motion to Dismiss, Comcast could

                      and liable for erroneously assessed properly taxes imposed on exempt

                     irpetuity.

                                          STANDARD OF REVIEW

            Wher a CIrcult Court is reviewing and ruling upon a Matian to Dismiss the
Plaintiffs C nplaint (as here, pursuant to the provisions of Rule 12(b)(l) of the
Arkansas Fi les of Civil Procedure (ARCP)) the prior decisions of the Arkansas



9142027.4                                            3

                                                                          000706
                                                                                                    Add.-   422
i   Suprema Coui. (See, Beene v. Hutto, 1 Ark. 948.96 SS              2d 485 (Ark. I     6);          -
                                                                                                      e

    v. Hamis, 298 Ark. 241, 766 S.W. 2d 431 {Ark. 1989); and McKinnev v. Cih

    *-Dorado 303 Ark. 284, 824 S.W. 2d 826 (Ark. 1992) {requiring the reviewing                ircuit

    Court to conslder all of the facts alleged in Plaintiff's Complaint as true and a such

    facts are to be viewed In the light most favorable io the Plaintiff). In addition, the     ircuit

    Court must look only to the allegations set out in the Complaint and not to extF           3OUS

    material or facts from outslde the Cornplaint to decide whether the Motion to C miss
    should be granted or dented. Moreover, fhe pleadings are to be liberally consti ?d in

    favor of the non-moving party (the Plaintiff, in this case). See, e.g., Deitsch v.         ierv'
    309 Ark, 401,833 S.W, 2 760 (Ark. 1992).
                           d
                                            ARGUMENTS

                 1.    Thls Circuli Court Has Subject Matter Jurisdiction Over
                       Corncast's Claim for Refund Cause of Actlon, Pursuant to Ark.
                       Code. Ann. 5 28-35-90.

                 This case Involves    Comcasrs claim for a refund of erroneously asses d ad

    valorem taxes for the 2005 - 2008 ad valorem tax years, because Defendant B                kner
    sent ad valorem tax statements to Comcast that substantially overstated the                mal

    amounts o ad valorem taxes that Corncast owed to Pulaski County, Arkansas ( id to
             f
                 2
                   Therefore, In this civil proceeding, the Court may not consid                   the
    attachments to the APSC Defendants' Motion to Dismiss in deciding the merits               ! the
    Motion to Dismiss, because, to do so would turn the Motlon to Disrnlss Into a Mol          I for
    Summary Judgment, under the provisions of Rule 56 of the ARCP. Since the                    S
                                                                                               'C
    Defendants have totally failed to assert any jurisdictional polnt or authority (or to      tach
    any documents that relate to) a claim for refund filed In the County Court, pursi          It to
    the provisions of Ark. Code. Ann. 9 26-35-901, there are no grounds upon whil              this
    Court could grant a Motlon for Summary Judgment As well pled In the Plaintiff              First
    Amended Complaint, there are many materia! factual issues that must be deck                j     by
    this Circuit Court, only after an evidentiary record has been created at trial in this c   ;e.




    9 142027.4                                    4

                                                                          0007Q7
                                                                                                       Add.-   423
1   the varic s schoo! districts and rnunlcipalities existing within PulasW County, Arkansas).

    The em ieous assessments chaltenged by the Plaintiffs refund action occurred
    because of the APSC Defendants' arbitrary, capricious, erroneous, illegal and
    unconsti tional inclusfon, in tbat agency's determination of the 'assessed values"

    (defermi !d by these APSC Defendants for each of the ad valorem years in question in

    this suit,         ir Corncast's rea! and personal property), of   a value attributed by the agenws

    assessir personnel to Corncast's "intangible personal property." For each of these ad
    valorem rx years in question, all of Corncast's intangible personal property has been
    exempt             ; h e 1977) from assessment for ad valorem tax purposes, under the
    provisior of Ark. Code Ann. 5 26-3-302.
                  TI   j   Circuit Court, therefore, has subject matter Jurjsdiction over the Plaintiffs

    refund c rse of action (and personal jurisdlctlon             over the parties to this action) in this
    action 07          r the Plaintiff's appeal from the County Court action it initiated on September
    18, 200E in the County Court of Pulaski County, Arkansas. That County Court action

    sought a efund of these same ad valorem faxes and was given the Docket No. 2009-2

    by the C mty Clerk, When the presiding County Judge entered a Dismissal Order (in
    the Cou y Court action), on February 16, 2009, the Plaintiff timely appealed that

    Dismiss: Order to this Circuit Court (under the provisions of Rule 9 of the Rules of the

    District C urt). The certified record from the County Court proceeding was timely filed

    in this C :ult Court on March 18, 2009, Therefore, the Plaintiff has satisfied all of the
    requirem its that an action to request a refund from an "erroneously assessed" county

    ad valort          1 tax be   instituted In the County Court, as required by the provisions of Article
    7,S e c k 28 of the Arkansas Constitution, and the provisions of Ark. Code Ann. Q 26-



    9 14201'1.4                                            5

                                                                                  000708
                                                                                                             Add.-   424.
35-901. See, the 2008 declslon of the Arkansas Court o Appeals in the case 'vied
                                                      f
Muldoon v. Martin, 103 Ark. App. 64, 286 S.W. 3d 201           (Ark. App., 2008). Sel also,
Avava. Inc. v. Janet Tmutman Ward, Docket No. 2007 009779 (Clrcult Court of I tlaski

County, Sixth Division, Decision for Taxpayer-Plainti entered on June 22, 20 3, no
appeal by Pulaski County, AtItansas).

            II.   S i n k This Circuit Court Has Subject Matter Jurisdiction In
                  ThIs Case, Under the Taxpayer Bill of Rights (Codified in Ark
                  Code Ann. 5 26-35-901) Corncast is Provided With a Statutorily
                  Created Cause of Action for a Refund Claim of Erroneously
                  Assessed Ad Valorem Taxes That Have Been Paid to the
                  County Treasurer Within Three (3) Years of the Date of the
                  Overpaymeng and Corncast's Claims for Refund in Questlon In
                  Thls Civil Action Meet All of the Requirements o This Statute.
                                                                  f
            Comcast meets all of the requirements to seek a refund under the Taxpa: !r Bill

of Rights. Under the Taxpayer Bill o Rlghts, a cause of action
                                   f                                    s
                                                                        i available f    - any
person that has paid taxes on real or personal property where such proper                 has
been erroneously assessed.             A "person" is defined as a 'firm, compa t, or

corporation," Ark, Code Ann.       5 26-1-101(5),   Corncast is a corporation and tht zfore

meets the definition of a pewon. The amounts of ad valorem taxes that are in dis rte in

this civil action relate to ad valorem taxes assessed and paid by Corncast {be! ming

with the 2005 ad valorem tax year) un the value of intangible propeFty o w d bY

Corncast.         Intangible property is "personal property" (based on the referei       0   t0

intangible property as "intangible personal property" in Ark, Code Ann.     3 26-3-3[
that the 'exemptive provisions" of Ark. Code Ann.     5 26-3-302are controlling of thf   ssue

raised by Comcast in its Claims for Refund filed with the County Court of            F   laski

County, Arkansas on September -l8,2009.




9142027.4                                      6

                                                                     000709
                                                                                              Add. -   425
            Bt

claim, th

personal
defined ii

            EA
            er
            Cli ssifications, or listings, and shall not be utilized fa make any change in
            thi ! valuation of any real or personal property as shown on the tax books
            at j related records other than a change In valuation necessitated by the
            cc rection of actual and obvious errors as provided in this section.

The Arkz nsas Supreme Court has held that property taxes paid on exempt property is

an "error sous assessment." Clav County v. Brown Lumber Co,, 90 Ark. 413,420,119

S.W. 251 , 2 5 3 4 (Ark. 1909) (holding that the tern "erroneous assessment" refers to an

assessrn :nt that deviates from the law and is therefore invalid including, but not limited
to if the 1

such taxi

also,

{Ah. 193

            FC
taxes ag,

Propew1
Cornplat

timely C

Arkansaz

35-901(a

"emneoi


9142027.1                                         7

                                                                        UO07.t 0
                                                                                             Add.-   426
I                                                                                   n
    upon Corncast [for each of the ad valorem fax years in suit), since a large pol I of

    these ad valorem taxes were "a&itrarily, capriciously, erroneously, illegall           and

    unconstitutionally* computed and assessed by including the values of Con               3St'S


    'intangible personal property,"in the "assessed values" of Corncast's personal PI )ew

    (for each of these ad valorem tax years), which 'intangible personal property"ha ieen
    declared, by statute, fa be exempt from the ad valorem taxes levied on the DefE lant.

    Despite the fact fhat Comcast operates a cable television subscription business Id is
    not a utility or wmrnon carrier {as those businesses are defined in Ark. Code Ann i 26-
    26-1 sol), the Defendants' illegally and unconstitutior~allyhave assessed Con ssfs

    "intangible personal property"as if this corporate taxpayer was a "utility" or a "cc mon

    carrier." Thus, Corncast's intangible property was exempt from assessment for !I ad
    valorem tax levies (pursuant to the provisions ofArk. Code Ann.    8 26-3-202> E :h of
                                                                                 for

    the ad valorern tax years from 2005 through 2008, and the assessing of such E :mpt
    "Intangible personal property" by the Defendants entitles Corncast to a refund 01      10s

    Illegally, unconstitutionally and emneously assessed ad valorem taxes.

                 111.   Ark. Code Ann. 26-35-901 Was Created as a Separate Cause
                        of Action and Does Not Require Taxpayers to Exhaust Any
                        Adminisfdive Remedies

                 The separate statutorily created cause of action (under the provisions 1 Ark

    Code Ann.           3   26-35-9011, that allows taxpayers to make a claim   for a refi 1 of
    erroneously assessed ad valorem taxes (within three (3)         years of the date       the

    overpayment of such ad valorem taxes), contains no requirement that taxpayer: nusf

    first exhaust any administrative remedies, before a refund claim can be filed           the

                                                                                  s
    County Court of the Gounty that erroneously assessed and levied the overpaymt i of



    9 l420t7.4                                      8


                                                                        0 0 0 7 1 I,
                                                                                                  Add.-   427
\

    ad valor4        I   taxes that are the subject of the taxpayer's claim for refund. Thus, the

    APSC         D 2ndants' assertions in their Motion to Dismiss that Comwst falled to seek
                 l
    rehearing if the APSC's Order for the consolidated 2007-2008,relative to Corncast's
    appeals i the administrative actions before the APSC, are simply facts and arguments
    that are         t germane to the issue now before this Circuit Court on the Plaintiffs First

    Amendec :omplaint for Refund- There is no longer any claim of a.cause of action by

    Comcast rumuanf to the provisions of Ark. Code Ann.                5 26-24-123,
                                                                                  regarding any
    appeal fr n any administrative decisions by the APSC              on the issue present for thls
    Court's d        ision In this civil action.

                          The APSC Defendants' Assertion That the Doctrine of Res
                          Judicata Bars Corncast's Cause of Acfiun, Under the
                          Provisions o Ark. Code Ann. 5 26-35-901, is a Specious
                                        f
                          Argument That Has No Basis in Fact or Law, Because
                          Corncast's Claims for Refund Have Not Ever Been Fully and
                          Fairly Litigated by a Court of Competent Jurisdiction.

                 R judicata has two facets: issue preclusion and claim precluslon, Huffman
                 E                                                                                -
    Alderson, 83 S.W.2d 899 (1998). Under fhe claim preclusion aspect, 'la valid and final

    judgment sndered on the merits by a               court of competent jurisdiction bars another
    action by le plaintiff or his privies agalnst the defendant or hls privies on the same
    claim or I use of action.' Coleman's Sew. Ctr.. lnc. v. Federal D ~ m s lIns, Corn., 55
                                                                             t

    Ark. App 275, 935 S.W,Zd 289 (1996). Res judicata bars subsequent lawsuits
    regardles If new legal issues or additional remedies being raised.         B.
                 R frrdicata applies where the party against whom the eariier decision is being
                  E
    asserted         a a full and fair opportunity to Jitigate the issue. White v. Gress Auric.
                      d

    Enters., ; Ark. App. 309, 37 S.W.3d 649 (2001). "The purpose of the resjrrdicafa
    doctrine i       ;Q   put an end to litigation by preventhg a party who had one fair trial on a


    9 t42027.4                                         9
 1
‘I   matter from re-litigating the matter a second time.” Brandon v. Arkansas WesfE            -
                                                                                               Gas

     -- Ark. App. 201, 61 S.W.3d 193,199 {Ark. App. 2001) (citing Moon v. M
     Co 76 1                                                                                   w,
     338 Ark. 636,999 S.W,2d 678 (1999). Generally, resjudicata bars re-litigatior             hen:
     ( I }the first sult resulted in a final judgment on the merits; ( )the first suit was h
                                                                      2                        d on
     proper jurisdiction; (3)the first suit was fully contested in good faith; (4) bo          suits

     involve the same claim or cause af action; and (5) both sults Involve the same p
                                                                                    :          2 or
                                                                                                s

     their privies. Gurlev v. Mathis, 313Ark. 412,424,856 S.W.2d 616,622 (Ark. 1 C
                                                                                9

                  A.    Res Judicata Does Not Bar a Judicial Court from Hearing i
                        Taxpayer‘s Separate Cause of Action, When There Has Beer
                        No Previous Judicial Proceeding on This Issue and Does No
                        Bar Judicial Courts from Reviewing CIaims Previouslj
                        Reviewed by an Administrative Agency

                  Arkansas courts have held that when an admlnistrative agency acts judk       Ily or

     quasl-judicially, resjudicata may bar a second proceeding involving the same qi ;tion.
     However, the courts have only dbcussed the application of res judicata in the co Ixt of
     an administmtive agency revrewing a prior decision of the same agency. In fac             3f   all

     the cases clted by Defendants in their brief, none relate to the ability of a judicial    JFt of

     law to hear a matter where the claims andlor the issues have previously been {            ided

     by an administrative agency, without there later being a judicial review                   f he

     administrative agency’s decision. Rather, all of the cases cited by the Defendant         elate
     to either the ability of a judicial court to hear a matter where the claims andlor the    sues

     were prevlously decided or reviewed by another court or the ability of an adminl          BtiVE

     agency to hear a matter where the claims andlor issues were prevloudy deci                d by
     another administrative agency.




     9 1m H . 4                                     10

                                                                          a007 I 3
                                                                                                    Add.-   429
                                       ,238 Ark. 184,381 S.W.2d 462 (Ark.

                                        there was no reason to apply res
                                        m bn’nging a second application to
                                         e permit on the second application
                                         ner brought an appeal in which the
                                           tron of North Hilts Memorial Park,
                                           he second cemetery application,
                                           d reason for applying this rule In
                                            .W. 2d, at 464. The Supreme

                                              more significant than the rigid

                                               ‘s decision, rd. Sirnitady,
                                                viewed by a judicial court of

                                                applying res judicata to the

                                                 n to Dismiss. If this Court
                                                  cast could be Fequlred to

                                                   dlcala does not apply as
                                                    ot allow Defendants a

                                                      these Defendants are


  B.    The Sugreme Court of Arkansas has Reeoanized
        the Sound Policv Reasons Behind Not Applvinq
        Res Judlcaia as Forcefullv to Admlnistrative
        Agencies’ Decisions as Judicial Decisions

nsas’ appellate courts have recognized that res judicata does not appIy with

                                                     Hamlltm v. Arkansas



                               11
I   Pollufion and Contrc Commission, 333 Ark. 70,969 S.W. 2 653,657 (Ark. I
                                                           d                              he

    Supreme Court of Arkansas stated: 'Our court has related, however, that               lot
    convinced that all the technlcal rules that make up the common-law doctrir            *es

    judicata should apply with equal force to administrative proceedings" (citing N       -
                                                                                          ills

    Memorial Gardens v. SirnDson, 238 Ark. 184, 185,381 S.W.2d 462,464 (196               he
    Supreme Court has indicated its hesitancy to apply the rule of res JUG                tQ

    administrative dedsions.,      -                              381 S.W.2d 462, 4       rk.

    1964). No appellate court of competent jurisdjcthn in Arkansas has decided tt         its
    of the subsfantive issues resulting in and attempt to apply the docttine of resjut     in

    a situation where there has been an administrative decision by an admli               ve

    agency, and that decision asserting the application of the doctrine o res judi
                                                                         f                las

    not been reviewed by a court of competentjun'sdiction.
                 Moreover, the Plaintiff asserts that a red flag of caution appears   I   an
                                                                               e
    adminlstrative agency reviews and issues a dedsIon on its own findings. A n1          nd

    objective reviewing court provldes the optimal potential to uncover the truu          to

    assess fair and adequate rernedles to the partles.             The primary pur        of
    administrative adjudication is to allow for a more expedient method for settling      es

    than i f every matter was required io be heard in a court of law, but often at the    se

    of the legal formalities guaranteed under the principles of due process in court      W.

    Since Comcast has ellmlnated from its First Amended Complaintfiled in this ac         nY
    claim relating to an appeal from any administrative decision by the APSC, this        3n

    of whether or not the docfrine of res judicata is appllcable in this case,as claim    he




    9 142027.4                                    12


                                                                       0007 I5                   Add. -   431
I   APSC D fendants, should be a moot point that does not support the Motion to Dismiss,
         4
    especiati; since the Plaintiff has f l a FIrst Amended Complaint In this action.
                                        id
                 I
                 W iEREFORE, the Plaintiff, Corncast of Little Rock, Inc., prays that this Court will
    enter an Order denying the APSC Defendants' pending Motion f Dismiss, that has
                                                                o
    been file 1 or has been joined i by all named representative Defendants, for the
                                    n
    reasons jet forth above and In the Plaintis Response and Opposition to the

    Defendar t's Motion to Dismiss.




                                                   Christopher D. Brockett
                                                   Ark. Bar No. 2005192
                                                   HATFIELD & SAYRE
                                                   401 W. CapitoI Avenue, Suite 502
                                                   Little Rock, Arkansas 72201
                                                   Telephone: (501) 374-9010
                                                   Facsimile: (5011374-8510
                                                   gsavre(5ilhandsark.com
                                                   Gbrockett@!handsark.com

                                                   Eric Tresh
                                                   SUTHERIAND ASBILL 8r BRENNAN LLP
                                                   999 Peachtree Street, NE
                                                   Atlanta, GA 30309-3996
                                                   (404) 853-8570 Telephone
                                                   (404) 853-8806 Facsimile
                                                   En'c.tresh@sutherland.corn

                                                   AITORNEYS FOR PLAINTIFF




    9 142027.4                                        I3

                                                                             0007 I 6
                                   CERTIFICATE OF SERVEE

       I, Eugene G.Sayre, hereby certify that a copy o the foregoing Brief I Sup
                                                      f                     n            tOf
Plaintiffs Response and Opposition to Motlon to Dlsmiss Filed by Defendanls              rah
Bradshaw and the Arkansas Public Service Cornmlssion and Jolned in by Defer              nts
Rob McGill and the Putaski County Special School District; Defendants Gary FIt           ier,
Mayor, City of Jacksonville, Arkansas, and the City of Jacksonville, Arkansa!            md
Defendants Debra Buckner, Janet Troutman Ward, and Pulaski County, Arkansz               ias
this date been served by U. S. Mail upon the following:

Ms. Karla Burnett, County Attorney                   Mr. Robert E 8amburg
Room 400                                             Attorney for Clty of Jacksonville
PulasW County Administration Building                303 N. James Street
201 South Broadway                                   Post Ofice Box 5913
Llttfe Rock, Arkansas 72201                          Jacksonville, Arkansas 72078

Mr. Jay Bequette                                     Mr. Paul 3. Ward
Bequette 8t Billingdey                               Mr. Kevin L. Lemley
425 West Capitol Avenue, Suite 3200                  Arkansas Public Servlce Cornmiss
Little Rock, Arkansas 72201-3469                     I000 Center Street
                                                     Post Office Box 400
                                                     Little Rock, Arkansas 72203-0400

            Done at Llttle Rock, Arkansas, on this 24'




9142027.4



                                                                       QUO7 I7
                                                                                            Add. -   433
            IN THE CfRCITxT COURT OF PULASKi COUNTY, ARKANSAS
                                      2na DMSION

 CO [CASTOF LITTLE ROCK INC.                                           PILAMTIRF
 V.                                    NO.60-CY-10-1473
 SAI




          I, Defendants Sarah, M.Brsdshaw and the Arkansas Public Service Commission
 sub] t this mofion to dismiss Corncast of Little Rock Inc.’s May 24 ‘%first amended

 corn ajnt’’. This Court lacks subject matterjurisdiction insofar as these defendants are

coni med, and resjudicata and Corncast’sfaiturc to exhaust adminishatheremedies

Pr=      de this action,

         2. The Tax Division of the Arkansas Public Scnice Commission has excIusive

auth ity to assess the ad valorem property of cable companies such as Corncast. A.C.A,

Cod, inn. 60 26-24-101 - 26-24-1 03 give “full power and authority" to the Tax Division
to as ss many types of carriers and u i i i s and cable television companies. The Tax
                                     tlte,
DiVi I sends report forms to cable companies per 5 26-26-1 603.The Division takes this
      n
info1 ation and prepares a notice ofassessment per 9 26-26-161 0.

         3. A L A 4 26-26-1610 (b)(l) allaws companies to fiIe with the Commission
                                                                                 a

petit: 1for review of the Tax Division’s assessment, After the Commission rules on a

petiti   1 for T&W, the company may appeal    to Pulaski Circuit Court. Section 26-24-123

d i m that a notice of appeal be filed with the Cornmission within 3 0 days of the
Corn ission’s order.




                                                                    00092 I
                                                                                            Add.-   434-
       4, Corncast filed petitionsfor review of the Tax Division's 2006-2009

notificationsof assessment (these are attached to Corncast's Orighal Complaint).

Corncast never petitioned for review of its 2005 assessment. Comcast received adva

judgments in the 2006-2008 Dockets. The 2009 Docket remains pending.

       5. Corncast failed to appeal the 2006-2008 Dockets, as admitted by the First

Amended CompIaint,

                                                                  attacking thesl
       6 Ressjmrdhra also applies and bars Corncast h m col~atcmlly
        .
find Commission decisions.

       7. Corncast's claims are also barred by laches, limitations, and failure to exhai

administrativeremedies.

       8. A brief in support of this motion is dso attached.

       Therefore, Defendants Brdhaw and the Arkansas Public Service Cornrnissic

request that this Court dismiss them as defendants from Camcast's Amended Complr           t

and dismiss any claim against any other defendant regarding or dependent upon

Corncast's assessments.

                                             Respectfully submitted,



                                             @
                                             Kevin M. Lem ey (ABN 2005034)
                                             Arkansas Public Service Commission
                                             P,O. Box 400
                                             Little Rock, Arkansas 72203-0400
                                             (501) 682-5879
                                             kIemlevGl~se.state.ar.us

                                             Attorney for Defendants Sarah M.Brads         *W
                                             and Arkaasas Public Service Commissic




                                            2      '


                                                                    000922
                                                                                                Add. -   435.
'I                                  CERTIFICATEOF SERVTCE

             I certify that a copy of the foregoing has been   delivered to the following pmiies
            ctronjc transmission this June 14,2010:

            le G.Sayre                      Eric Tresh
            opher D. Brockett               SUTHERLAND, AS'BILL & BRE"NAN, LLP
            WLD & SAYRE                     999 Peachtree Street, NE
               Capitol, Suite 502
            'est                            Atlanta, GA 30309-3996
            Rock, AR 72201                  eric.tresh@mtherland.com
            ~andsark.com
            :ett6hndsark. corn

     Karl Burnett                                  .
                                           Robert E Bamburg
     cou y Attorney                        City Attorney
     Pula i County Admin. Hdg,             303 N. James Street
     Rm    400                             P.O. Box 5913
     201   iuth Broadmy Strcct             Jacksonville, AR 72078
     Littl Xock, AR 7220 1                 rebambwmaoI.com
     -
     kbur   :?rmco.Pdas~.aus

     Jay 1 quette
     Beq1 ttc & Billingsley
     425 est Capitol Aye., Suite 3200
     Littli b ~ k AR 72201-3469
                    ,
            t t a b b uaIaw.com


                                                  1   Kevin M.LemIey




                                                  3      -

                                                                            000923
         IN TIW CIRCUIT COURT OF PULASKl COUNTY, ARKANSAS
                                    ~~~DMSION


COMCAST OF LITTLE ROCK, MC.                                                PLAINTI

V.                                   NO. 60-CV-10-1473
                                                                  F l W /DW14!10        1
                                                                                        1   .s
                                                                                             56
SARAEI M.B W S H A W , et SI.                                     Pat: w&tMkh?$ :Circuit Cterk
                                                                   CROl
        BRIEF IN SUPPORT OF SEPARATE 3 ) E F T ” T S BRADSRAW
          ANI) THE ARKANSAS PUBLIC SERVICE COMMISSION’S
               MOTION TO DISMISS AMENDED COMPLAINT

       Corncast concedes it failed to appeal the Commission’s final orders approving

assessment of Corncast’s intangible property. In the Amended Complaint, Corncast ask

the Court to usurp the Commission’s exclusive original jutisdiction over assessment of

cable television companies.

       This Court lacks subject matterjurisdictionover Corncast’s 2005 -2008
assessments because Corncast failed to comply with ACA. Q 26-24-123, which provic
the exdusivejudicial review for companiesassessed by the Commission.

       This Court lacks subject matterjurisdiction over Corncast’s 2009 assessment

because that issue remains pending in a proceeding before the Commissionthat was
initiated by Corncast, This Court cannot usurp the Commission’sjurisdiction while a

proceeding remains pending, and Corncast must exhaust its administrative remedies.

       This Court lacks subject matterjurisdiction over Corncast’s future assessments
because this Court cannot preemptively usurp thc Commission’sjm’sdictionprovided j

A C A . 8 26-24-103.

       Comcrtst’s d a h s are also barred by resjudicata. Corncast never appealed the


                                                                                            lIHI
                                                                                            48-820

                                                                                            :15 Pn
                                                                                             FI51
                                                                   000924
       I.                            challenged the assessment o its in!ungible
               Corncast urrsuccessful~                          f
               proper@in three proceedings before the Comwissim
Corncast never petitioned for review ofits 2005 assessment. In fact, Corncast

  and accepted the 2005 assessed vdue ofits property before the notice of


Comcast filed petitions for review ofthe Tax Division's 2006-2009 notifications

    nt.In each case, Corncast chdhnged thc Tax Division's inclusion of
    roperty in the assessment.Thc: 2006 Docket was decided adversely to

    a detailed opinion where the Commission approved the assessment of

     tangible property. See Ex,B.The consolidated 2007-2008 Dockets were

  on resjudicata grounds. See Ex,C Tbe 2009 Docket, initiated by Corncast,
                                  .
       g before the Commission. See Ex. D The 2009 Docket raises the same
                                         .


       2.      Corncastfaiied in is atrempr to appeal the Commission's orders in
                                  t
               the Originar Complaint.

On March 28,2010, Corncast initiated the present action as an &mpt to

                   rders in the 2006 Docket and 2007-2008 Dockets, its well as

                     County Court. See Original Complaint. The Original

                     months after the final order in the 2006 Docket and 9

                            nsolihted 2007-2008Dockets. See Ex.B and Ex.C,

  e Commission and Bdsbaw moved to dismiss the Original Complaint on

                       comply with the spccific appellate procedures set forth in

4 26-24-123.


                                    2


                                                            000925
                                                                                    Add.-   438.
.
.
    I
                       3,      Corncast w7hdrew is beluted appeal o she Commission's ordej
                                                 t                 f
                               bur the Amended Compluint collalerally uttach those orders,
                Corncast filed a First Amended Complaint that abandons my attempt to appeal

        the Commission's prior orders. Instead, Corncast now cIaims that A.C.A.    4 26-35-901
        grants this Court subject matterjurisdiction to collateralIyattack the Commission's fin

        orders and usurp the Commission's excIusivejurisdictionto assess cable teIevision

        companies provided i A.CA 5 2624-103.
                           n
                                              ARGUMJEIYT

               Corncast's Amended Complaint can be m e d up in one sentence: Corncast

        wants the Court lo assume original jrvisdictionover how Corncast's property is assessc

        The Court does not have subject matterjurisdictionbecause the Commission has
        exclusivejurisdiction to assas Cmcast pursuant to A.C.A.     3 26-24-103. Tt has long bl
        the rule in Arkansas that:

               It is nut within the province of the Courts to assess property, Courts can
               only review the assessments made by the assessing officers and have no
               power under om Constitution and laws to make the assessments.

        St. Louh-San Francisco Railwq CQ. Arkansas PubIic Sen. Comm ' , 227 Ark. 106t
                                        v.                          n

        1069,304 S.W.2d 297,299 (19571, citiog Cook Y. Surplus Trading Co., 182 Ark. 420, 1

        S.W.2d 521 ( 9 0 .
                    13)
               This Court obtainsjurisdiction over the assessment only if Corncast complies M h

        the specific appellateprocedures provided in A.C.A. 5 26-24-223,
                                                                       which Corncast adm          S


        it failed to do. Separate Defendants Bmdshaw and the Commission are entitled to

        dismissal for lack of subject matter jurisdiction pursuant to Ark. R Civ. P.l(]I
                                                                                     Zb()
        12fi)(3), as well as resjudicata pursuant to Ark. R.Civ. P. 12(b}(6).




                                                    3



                                                                                                       Add. -4 3 9
         :omcast bases its argument entirely upon its assessments.Because its daims

again    he asscssor (the Commission) must be dismissed, the Court should also dismiss
all C! m t ' s claims against any defendant relating to its assessments.

1.       rhe Commission, not this Court, has the Exclusive Power of Original
         lssessment of Cable Television Companies.
         h i s Court cannot assess a cable television company; the Commission has

exclu    e jurisdiction to assess cable television compania:

         l e Arkansas Public Service Commission shaIl have the fill power and
         uthority in the administralion of the tax laws of this state to have the
         xdusive power of original assessment of both real and personal property
         sed i the operating of carrier pipeline, railroad, street mihoad, express,
              n
         leeping car, and intercozlnty bus linc cornpanix, and all teIepph,
                             c
         dephone, e l e c ~ power, cable television, hcating, gas, water, water
         ransportation, toll bridge, or ferry, interurban, or other similar cornpanis,
         ssociations, or copomtions, commonly known as utilities, doing
         ushess or owning property in this state.

A.C.1    i 26-24-103   (emphasis dded), The only way this Court cm obtain subject matter

jurisd   on of assessmentof a cable television company is through the specific appellate
prom     es provided in A.C.A,   4 26-24-123. If those procedum ate complied with, this
court    sjun'sdiction to reviewthe Commission's decision bascd only upon the record

befort                            BelI Mobile Systems, Inc, v. A r h s m Public
         e Commjssion. Southweskrt~

Senit    hmrn'n, 7 Ark. App. 222,231,40 S.W.3d 838,844 (2001). The COWcannot
                  3
consic   new evidence that was not presented to the Commission. Id.

         'Corncast is displeased with its assessment,it must first fiIe a petition for review

wt < Commission pursuant to A.CA. 4 26-26-1610 (which Comcw did for the 2006
 ih
-200!    rsessments).Then it must appeal the Commission's final order pursuant to the

procet   ES provided   in A.C.A. 6 26-24-123 (which Corncast attempted to do for the
20064 1 assessments). These procedures were thoroughly discussed in the
      8


                                             4


                                                                       000927
                                                                                                Add-   440
Commission’s and Bradshaw’s first motion to dismiss. Corncast failed to comply with

A,C,A. 5 26-24-123 and admits thisfact by filing its Amended Complaint, which

abandons the appellate theory,

        Cutting h u g b the diatribe contained i Corncast’s pleadings, Corncast asks tl
                                               n

Court to direct the Commission how to assess cable television companies,T do this
                                                                         o
would q u i r e the Court to ignore the Commission’s exclusive power of original

assessment md manufacture subject matterjurisdiction over assessment of cable

television companies.This Court simply does not have subject matterjurisdiction and
should decline Corncast’s invitation.

11.    Corncast Cannot Use A.C.A. 6 26-35-901,       B   General Provision, to Snpersec
       A C A 3 26-24-123, a SpeCiiic Provision.
        ...
       Corncast relies on A.C.A.   6 26-35-90 1 to collaterally attack the Comrnksion’s
2006-2008 orders and u m p the Commission’s jurisdiction over Corncast’s 2005,2001

2007,2008,2009, and future assessments. This general provision does not apply to

companiesthe Commission assmes. The General AssembIy established a different,

specific procedure for assessmcntof certain companies, including cable tekvision

companies like Comast. See A.C,A. § 26-24-103; Southwestern Bell Mobile, 73 Ark.

App. at 231,40 S.W.3d at 844. This is a specific procedure for companies assessed by

Commission that controls over the general procedure provided in Section 26-35-901. S

e.g., Ark. U , A@. Gen. No. 2004-354,2005
            p                                 WL 3 13716 * 4 peb, 3,2005) (opining
                                                must yield to a specific provision).
that Section 26-35-901 i B general provision &hat
                       s
       Arkansas law is ell established that the specific proceduremust govern OW tl

general procedure. Ballheher v. Senlice Finance Cup,,292 Ark. 92,95,728 S.W,2d

178,179 (1987). In that case tbep1aintifTattempk.d to use the general statute of




                                                                     000928
                                                                                          Add.-   441.
   rges. The court stated “where a special act applies to a particular case, it

    operation of a general act upon the same subject.”Id.,citing WilliamsY. Ci&

                                         o
    284 Ark, 551,683 S,W,2d 923 (19S5), T hold otheMrisc would rendcr rhe

    sim meaningless so that the specific provision would nevcr apply. Id.

 e Arkansas Supreme Court cledy made this point when interpreting h e

SOT sbMe to Section 26-35-901    in C County Y. Brown Lumber Co., 90 Ark.
                                     @
     251,252 (1909).    Instead of complyingwith the specific statutov
                         n
      laintifffiled suit i circuit court. The Supreme Court dismissed the case,
       who feels himself aggrieved by overvaluation of his property for
        ion and docs not resort to the tribunal: creatd by the state for correction

                        aintain an action at law to recover h e excess of taxes

             en a mode, in the nature of an appeal, is prescribedby the statute,
             statutory remedy within the time and manner prescribed predades
               recdings.” Id (emphasis added), “Thestatutory provisions.. .,

                c remedy to the exclusion of other remedies, a p coming
                                                               m

                   pursue f i e remedy at the time when it i made avaiIabIe. .*.”
                                                           s
                   Is to pursue the statutory remedy, he is deemed to have

                    e court dismissed the case because the taxpayer failed to
                     medies, and the circuit court did not havejurisdiction. Id.



Howing well established Arkansas Jaw, the specific appellate procedures set

                      t govern over the general provisions provided in Section




                                    6


                                                              000929
                                                                                      Add.-442   .
26-35-9131. Othenvise, the specsc provisions of Section26-24-123 we entirely

meaningless. Corncast’s behwiar effectively illustrates w y Axkansas has long follow
                                                         h
this rule. Corncast fist atternpied to foIlow the specificproccdum provided i Sectioi
                                                                             n
26-24-123 but failed to timely file its appeals. Now Comcasst tries to circumvent Scctic

26-24-123by relying upon a general provision. If Corncast is permitted to do this, the1
Section 26-24-123has absolutely no meaning, These specific appellate procedures are

worthI~s Corncast can manufacture a separate judicial review though a general
       if

provision. Additionally, the Commission’s cxcIusivejurisdiction ofassessment pursua
to Section 26-24-1 0 would have no meaning if Corncast can use a general provision t
                    3

manufacture subject rnattcrjurisdiction in the circuit court independent of the rccord

befoxe the Commission.The Court should avoid thisjurisdictionat emor and apply the
long estabkhed rule that Section 26-26 a specific provision, must govern over
                                      123,

Section 26-35-901, a general provision,

        k      As Recent@Stated by the Court of Appeals, Comcast Cannot Usurj
               ibe Commission’s Original Jurisdiction of Asswiment Through
               Section 26-35-901,

        Corncast cannot usurp the Commission’s jurisdiction over assessment by filing

suit under Section 26-35-901. This approach was recentIy rejected in Muldoon Y. Mar/,
103 Ark. App. 64,286 S.W.3d 201 (2008).     The Court ofAppeaIs held the circuit court
bas no subjectmatterjurisdiction over a claim alleging a flaw in assessment. 103 Ark.

App. at 65,286 S.W.3d at 202, Instead, such a d a h must be brought before the entity

that has exclusive originaljurisdiction.Id. Citing Section 26-35-901, the court held tba

the county court had exclusivejuridiclionrather than the circuit corn because of the
jurisdiction vestcd by Ark. Const. art, 7,§ 28 and A.C.A. $14-14-1 105(b)(l). Id. The



                                            7      ‘

                                                                     000930
                                                                                           Add. - 443
         court can obfainjlnisdicfion only over the legality of the taxes, not 8 chalIenge to

         :ssment Id. The Court of A p p d s reversed the circuit court €or exercising

         :tion md dismissed the case. Id.

         The same result must occur here because h e Commission has exclusive original
jurisd ‘tionover Corncast’s assessments,See A.C,A, 9 26-24-103. This Court does not
have I iginal jurisdictionof assessments.Id.; see a h St, Louis-San Francisco Railww,
227 A k. a 1069,3 04 S,W.2d at 299. IfCorncast wanls to challenge its assessments,it
          t

must I > so at the Commission, not in this Court. Muldoon, 103 Ark. App. at 65,286

S.W.2 at 202. The only way this Court can acquire jurisdiction is if Corncast timely

aPP=     a final Commission order pursuant to A.C.A.     5 26-24-123.   Corncast failed to do

so ant low challenges i s assessments outside of Section 26-24-123, which prevents tbis
                       t

cow      :OM having subject matterjurisdiction.

         B.           The Recently Amended A.CA § 26-35-901Prohibifs the Type o f
                      Claim Corncast Pursues.

         Section 2635-90 1 is a long-standingArkansas statute, see Chy C o w , 90Ark.

413,l 9 S.W. 251, but it was recently amended in 1999. The present statute limits its
applic ion to property ‘‘emneousIyassessed, as defined and described in 9 2628-

11l(c; ‘See A L A . 9 26-35-901(a)(?). Section 26-35-901 is n w limited to ‘‘achlal and
                                                             o
obvioi errors on the tax books and related records, with sucb emrs being restricted to

extens in errors, erronems propcrty descriptions,classifications, or listings.” See A.C.A.
0 26-2   -1I I (c).

         :omcast alleges its intangibleproperty is exempt pursuant to A,C.A.8 26-3-302,

but thj argument was rejected in &ark Gas Pipeline Corp. Y. Ark Pub. Sent Comm ‘n.,
342A :.591,29 S.W.3d 730 ( 0 0 .The court held that Section 26-3-302 a general
                          20)                                      is




                                                                         00093 I
                                                                                                Add- 444   -
statute that must yield to the specific statutes provided in A.C,A,      5 26-26-1 601--1606,
which provide for the assessment of utilities' intangible properly. 342 Ark. at 602-04,2
S.W.3d at 736-37.Corncast also alleges it is not a u i i y ' but the Commission rejected
                                                    tlt,

this argument in its find orders holding that A.C.A. 4 26-26-1601-1 616 apply to

Corncast.See Ex.3 and Ex. C Thae orders were not appealed. This Court does not ha
                           .
jurisdiction over these orders, and they cannot be coUaterally attacked.
        Corncast has not presented "actual and obvious mors', as required by the CUTTCT:

Scction 26-35-901.Instead it presents legal arguments that were previouslyrejected by

the Arkansas Supreme Court and the Commission. Corncast's allegations in the berid

Complaint are beyond the scope of the currentScction 26-35-901.

        C.      The Dicta at the end of the CrgV Corn@ Decision is Inapplicable to tl
                Pcesen t Case.

        In dicta at the end of Ihe opinion, the Clay County considered limited exception!

if the property was exempt from taxation, if the tax was invalid, or if there was any cIea

excess ofpower granted, so as to make the assessment beyond the jurisdiction of the

assessing officer or board, Id, at 254. This was mereIy dicta tbat did not form the basis

the couTtasruling. Moreover, the c ws definition of"em>neousassessmenf' bas been
                                  o '

superscdcd by tha current Section 26-35-901. Compare id. at 253 wirh A L A . $9 26-35

901(a](l), 26-28-1 ll(c).

        None of these exceptions listed in the dicta would apply i the instaut case. First
                                                                  n

                             .
as discussed i Section II., B ,supra, Corncast's arguments regarding exemption were
              n
previously rejected. The dicta in Clay Ccunry addressed the situation where property he

been established as exempt prior to the assessment. In the instant m e , Corncast's

' The title of the stanrte granting the Commissionexclusivejurisdiction to asses cable teIevision
companies is "Assessment of utility property." See A.C.A. 6 26-24-103.


                                                9      .


                                                                            600932
             I

-   m’
         I       propem has been establishedas not exempt Corncast cannot sihuItaneously

                     eption it seeks to enforce; the exceptionmust exist prior to enforcement.

                         does not allegethe tax is invalid; it only complains of the assessment

                         take subject matter jurisdiction of an assessment under Section 26-35-

                          Ark App. at 65,286 S.W.3d at 202. A flaw in the assessment,ho
                          from Corncast‘s point of view, docs not make the tax invalid.
                           ,2009Ark. 632,p. 6 (citations omitted). Finally, it is impossible for
                            mcast to be beyand the Commission’sjurisdiction when the

                               lusive power of origjnd assessment of a b l e television


                 .    Even if Section 26-35-901 Applied, Corncast Could Only FiIe Suit in


                 e only remedy providcd by this section is an action at the county court See

                                      v q u , T . Wwd,
                                               m v.   Fulaski County Circuit Court NO.
                                       07) (appeal from county murt decision pursuant to

                                        d an action in county corn, but the C~mmission
                                                                                     and
                                         .E.Corncast cannot add parties to this appeal of that
                                           m a s t has no order to apped from that involved the



                 is Court simply does not have subjectmatter jurisdiction over Corncast’s
                                              eed would render A,C.A. §§ 26-24-103 and 26-24-

                                              is prohibited by Arkansas law. Bdlheimer, 292

                                                103 A k App. at 65,286 S.W.3d at 202.The
                                                     r




                                                                           000933
                                                                                                   Add*- 4 4 6 .
specific provisions must govern over generd provisions, and Corncast's claims should
dismissed.

ITT.    Corncast Cannot Milnufactwe Subject Matter Jurisdiction Through Artfu
        Pleading.

        Corncast seeks to m a t e subjectmarter jurisdiction by including c1aims for
declaratory relief, illegal exaction, and constitutionalVioIations. The declaratory

judgment statutes cannot confer subject matterjurisdiction; the court m s have an
                                                                       ut
independentbasis for jurisdiction before granting a declartmy judgment. Wines v.

Hurris, 362 Ak 393,399,208 S.W.3d 763,767 (ZOOS); B g a v. Picado, 338 Ark 2;
             r                                           ~

              17,19 (1999); UHSofArkunsas, inc. v. CharterHuspirulofLitiZeRa
231,996 S.WW.2d

h c , 297 Ark, 8, 12,759 S,W.2d 204,206 (1988). This rule flows from the long

establishedprinciple that declaratoryjudgment statutes can only supplement, not
supersede,ordinary causes of adon. WiS, 297 Ark. at 12,759 S,W.2d at 206.
                              -
       Likewise, the Arkansas Supreme Court repeatedIy bas held "ifthe taxes
mmplai~~ed are not themselves illegal, a suit €or illegal exaction will not lie. A flaw
        of
the assessment or collectimprocedure,no matter how serious from the taxpayer's p i n

of view, does not make the exaction itself ilIegal." Robinson v. Villitres,2009 Ark, 632

6 (citations omitted); Hambay Y. Williams, 373 Ark. 532,535,285 S.W.3d 239,2414

(ZOOS). Corncast's claims here, just like its claims More the Commission, tue based

entirely upon the assessment of legal taxes.

       As for alleged constitutional violations in Corncast's assessments, the holdings
CIqv Comfy,90 Ark. 413,119 S.W. 251 and Mzildhon, 103 Ark. App. 64,286 S.W.3d

201 preclude any attempt to manufacture jurisdiction under A L A .   4 6123-105 and 4
U.S.C. 0 1983. Corncast must first bring these argumentst the Commission and then
                                                         o


                                               11   '



                                                                     000934
assesments in this Court, Moreover, there is no state OT federal constitutional provision

that prohibits assessment of a cable television company's intangible property.
Addit onally, the cable television industry WBS soundly defeated on every constihrt*onal

challcnge against a law that imposed state and Iocal sales taxes on cabie television

                                                                     ..
comp:miesbut not other forms of mass mcdia. Leathers Y. Meduck, 499 U S 439 (I 9I);
                                                                              9
                          r
Medlc ck v Ledhers, 31 1 A k 175,842 S.W.2d428 ( 9 2 .
         .                                      19)
        Comcast failed to securejudicial review when it faired to comply with AC.A 9

26-24.123. Comcast cannot create an alternate form ofjudicial review though artful

pIeadiig. No matter how many different ways Comcast restates its appeal, this Court

lacks xbject matterjurisdiction to review the Commission's h a l orders.

IV.     This Court Lacks Jurisdiction Over Corncast's 2009 Assessment and Future
        Assessments for Failure to Exhaust Administrative Remedies.

        Corncast's clsims regarding its 2009 assessment should be dismissed because

Cornc st has failed to exhaust its adminisktive remedies. This well establisheddoctrine

        providesthat no one is entitledto judicial relief for a supposed or
        threatened injury until the prescribedstatutory admirtistmtive remedy has
                         ..
        been exhausted. , A basic rule of administrativeprocedure requires that
        an agency be given the opportunity to address a question before a
                                          ...
        complainantresorts to the courts, The failure t exhaust administnth
                                                           o
        remedies i gram& for dismissd.
                  s

Austin r. Ark Pub. Sen. Comm'n, 365Ark. 138,148,226 S.W.3d 814,820-21 (2006)

(citatio IS omitted).

        Corncast has initiated proceedings before the Commission challenging its 2009

                     .
assessn ent. See Ex.D A final order has not been entered because the 2009 Docket is




        I '                                                          000935
                                                                                            Add.-   448.
pending, especially when the docket was initiated by Corncast. This is a faiIure to exh

adminimtive remedies, and this Court does not have subject matterjurisdiction to

consider Comcsst’s 2009 assessment.
        Corncast dso asks this Court to take jurisdiction over future assessmentsthat I

not yet occuned. As stated before, the Commission has exclusive originaljurisdiction

assess Corncast. See A.C.A,   3 26-24-103. The Commission has not yet assessed Comi
for 2010 or future periods but wiII do so according to its jurisdiction. If Corncast has I

dispute at that time, it will be quired to exhaust its administrativeremedies before

seekingjudicial review.

       There is no basis in law for this Court to p m p t i v d y usurp the Commission’:

jun’sdiction before that jurisdiction is exercised. This Court does not have subject mntl

jurisdiction over fitme assessments that have yet to occur. Corncast’s claims regardin,

future assessments should be dismissed.

V.              Claims are Barred by Res Judkaiu.
       Comcitif’~

       Resjudicata bars Cumcast’s Amended Complaint The Arkansas Supreme Coi

                                                                    predusion.” Barck
stated that “resjudicula has two facets, issue preclusion and c l ~ m

Wokus,357Ark. 386,394,182 S.W.3d 91,9S (20041 (citations omitted). Claim

preclusion prevents relitigation ofthe same claim after a valid fmal judgment.
       Resjudicatu bars not only the re-litigation of daims which were actually
       litigated i the h t suit, but aIS0 those which could have been litigated,
                 n
       Wherc a case is based on the same events as the subject matter ofa
       previous lawsuit, resjlrdicara will apply even if the subsequent lawsuit
       raises new legal issues and seeks additional rwncdics.

                              involved a chaIIenge to a Puhski County use tax. Thc
Id, 182 S.W.3d at 95-6. Barchq~

claims h e plaintiffs raised were decided adversely in previous litigation. T get arouni
                                                                             o



                                             I3


                                                                       000936
-\
     I   resj u cula, the pIaintEs argued that different taxable periods allow different causes of

         actior Ihe court disagreed, holdingthat resjudicma applies wen for subsequenttax
         years. i at 395,182 S.W.3d at 96.

                  Even if Corncast thinks ofnew uguments regarding the same legal issue, res
         judici   t forecloses the   new nrgaments,
                  m h e test   ...
                               is whether matters presented i a subsequent suit were
                                                              n
                  oecessady within the issues of the fanner suit and dght have been
                                       .
                  litigatedtherein., [when the case at bar i based on the sitme events and
                                                              s
                  subject matter as the previous case, and only raises new legal issues and
                  seeks additional remedies, the bid court is correct to find the present case
                  !sbarred by resjudicata.

                  Y Perty, 355 Ark. 97,104,131 S.W.3d 338,343-44 (2003)(emphasis added).
                  .

                  &fa c o w s claims that could have been raked. Id at 108,13 1 S.W.3d at 346,

                  rt of appeals reafkned this principle recently in WinrockGrass Fann,Inc.Y.

                  d R e d Estate Appruisers ofArk, Inc. 2010 Ark, App. 279, p. 7 'Wewevidence
                                                                                .
                  rch will not prevent fhe application of resjudicata," Id at p. 8.

                  n Brundan v. Ark     West. Gas Cu., 76 Ark, App. 201,62   S.W.3d 193 @OM), the

                  Id that the doctrine of resjudicah app1ie-s to administrative proceedings, and
                  iatters that might have ken litigated in an earlier proceeding. Id at 210-1'1,61

                  at 201; Johnson v. Director ofhbor, 10 Ark,.App. 24,661 S.W.2d 401 (1983);

                  Ark Pub. Sen. Cumm'n, 272 Ark. 481,616 S.W.2d 718 (1981). This rule

                  Hith particular force when the plaintiff failed to ~ppeal prior decision.
                                                                          the

                  :Tire und Rubber Co.Y. Bider, 239 Ark 728.730 536 S.W.2d 126,128 (1976).
                  e court m d "Sincethis issue wa submitted t and decided adversely to
                           e:                                o
                  t by the Commission&e bar of resjudicata is invoked as effectively as if the
                   s
                  i been presentedto this Court."Id. Plaintiff must present new facts in the second


                                                       14


                                                                                 Ooog37               Add.-   450
*.
proceeding to prevent resjvdicata from taking effect. Hawilton Y. Arbmas Pollution
Control &. Ecology Comm’n, 333 Ark. 370,375,969 S,W.Zd 653,656 (1998).

        The issue predusion aspect of resjudicnfa (also known BS collateral esrappel)
does not require mutuality ofparIk in the previous litigation. A nonparty to fhefirst

action may assert issue collateral estoppel as a defense in a later action, ryfnrockG m

Farm, Inc., 2010 A k App. 279, p. 10; Crochft & Brown, P.A. v. Wilson,3 14 Ark. 5
                  r
584,864 S.W.2d 244,247 (1993) [affimring summary judgment on behalf of newly

added defendants). While Defendant Bradshaw was not formally a party to the
Commission proceedings, she is entitled to dismissal on raFjudicala grounds with equ

force as the Commission.

       The Commission’s prior orders holding that Corncast’s intangibh property is

subject to assessment are final, These find orders were never appealed and cannot nov

be appcaled. They are entitled to preclusive effect, Corncast’s arguments in the instant
case regarding its assessments fl into two categories: (I) tbe same argumentsit raisec
                                al
before the Commission in the prior proceedings; and (2)arguments that Comcast couh

have raised before the Commission in the prior proceedings. Resjudicata (both issue
preclusion and claim prcdusion) bars Corncast’s claims against Defendants Bmdshaw

and the Commission.

                                     CONCLUSION

       For the foregoing reasom, this COW does not have subject matterjurisdiction
over Corncast’sclgm regarding its assessments.The claims against separate defendar

the Commission and 3radshaw shodd be dismissed. Likewise, my claim against any




                                                                     000938
                                                                                           Add.-   451
 -
e.




     i   othe




                      Box
                P.O. 400
                Little Rock, Arkansas 72203-0400
                (SO1 ) 682-5879
                Ww@mc.statem.us

                Attorney for Defendants Sarah M.Bradshaw
                and Arkansas Public Service Commission
-.
 i                                 CERTEICATE OF SERVICE

            Z certify that a copy of the foregoing has been delivered to the followingpruliw
     by electronic bansmission this June 14,2010:

             .
     Eugene G Sayre                       Eric Tresh
                   .
     Christopher D Brockett               SUTHERLAND, ASBILL & B R E N " , LLP
     HATFIELD 52 SAYRE                    999 Peachtree street, NE
     401 West Capitol, Suite 502          AtImh, GA 30309-3995
     Little Rock, AR 72201                erk.tresh@&utherIand.com
     ,tsavr&ankk.com
     cbrockett@hmdsarkrk.com

     Karla Bumett                        Robert E, Bmburg
     County Attorney                     City Attorney
     Pulaski County Admin. Bldg,         303 N.Jmes Street
     Room 400                            P.O. Box 5913
     201 South Broadway Street           JacksonviBe, AR 72078
     Little Rock, AR 72201               rebmburMaol.com
     kbumcttmca.~ulaski. arms

     Jay Bequette
     Bequette & Billingsley
     425 West Capitol Ave., Suite 3200
     Little Rock, AR 72201-3469
     ~bequem~Elbbpa1 corn
                     aw.




                                               17
00094 I
          Add. - 454
Ms.Sarah M.Bndshaw, Director
Arkansas Tax Division, P.S.C.                                           JUH 2 0 2QOf
1000 Ccnter Street
P.O. Box 8021
Little Rock, Arkansas 72203-8021



Denr Ms. Bmdshaw:

     Per our recent conversation, Corncast is willing to accept an nssessrneut of
516 million for the 20#5 tax year.

     Thank you for your ccnsidcration in this matter,

                                            Very truly yours,



                                            Edwin P. Rothong, Jr., CMI
                                                             -        a
                                            Senior Director PropeFty T x

EPlUkjn




                               [E]                                 000542
                                                                                       Add. - 455
i-




     000943
              Add-   456   .
_-
     I




         ~~EMA~O~THEP~ONOFCOMCAST              1
         CABLE CORPOMTION OF LITTLE ROCK. NC. 1  DOCKET NU. 06-097-TI
         FOR REVIEW OF T S 2006 AD VALOREM TAX 1
                        T                        ORDERNO, 13
         ASSESSMENT                                            1




                                                  ORDER
                The Tax Divisionofthe A h m Poblic Service Cornmidon(TauDivision DT responc


         tas purposes d t h e real and posonaI pmptrty ofvariousbusiness and commerctd entities ow

         such propcrty?ocntedand doing business m the SlaleofArkanm. Among the various bushes



         telcvisian industry. This duty and power of asscsment over &e propetry of cnblo lelevi

         cnrerprhs is specificaIIy given to Iht Tx Division by Act I 5 of I975 of the Acts of Arkar
                                                 a                  7                                    I
                   s r
         codified a A k Code AM. §2&24-103, which reads:
                                                                                                         I
                                                                   ,




                       TheArkansas Public Scnfce Commissionshall havethe full power and author]!
                &e administration of the BX laws of this slate to have the exclusive power of orig
                wssrncnt of both red and persooa! property USBd in the operating of carrier pipel
                milrod, skeet milrod, wprcss, sleeping m and Intcrcuunty bus Iine companies, ani
                                                          ,




                                                                                                        8
                relcgraph, telephone, electric power, cnble television, heating, gas, water, w




                                                                                                      Add.-   457
                                                                        DOCKET NO. Q6-097-TD
                                                                        PAGE 2

           1 rqortation, roll bridgc, or fmy, intcnuban, or o&cr similar cornpaniw associalionq or
           1 pmntions, commonlyknown a utilities, doing business or owning propertyin thissto te.
                                           s
           I ~phmsissuppIied)

               mcasl CaMe Corporadon ofLIttle Rock, Inc,(Corneast orpetitiooer)Isa able television

cornpan: erving subscribers in Pdaski and Saline Counties, Arkansas. Oa July 3,2006,the Tax

Dtvisi 01 ssewed thc Arkansas-lrmrted real and personal property of Corncast for ad valorem lax
purpose: >rthe ymr, 2006. The vdue i d a l l y rcported by Corncast io tbeTax Division for ZOO6

      7
wa!i $ ;       1,486. The Tax Division’s assessment h 2006 wns $20,00o,000.
                                                    r
               rncast has timely petitioned for review of its 2006 assessmpnl by   the ark an^ Publk
Service        mmmidon (Commission) pumnnt to Ark. Coddo Ann, $26-26-1610. Corncast contends
that ncm       aU of the almcist 300% increase m r its reported amount In thoassessgdvdw of jls d

ana pen d property i attributable tothe inclmkn by lhe Tax Division ofpetilioner’sh & M e
                    s
persanal operty. Corncastcontends thatsuch hclusionofintangible personal pmpcrty is m m u s
and coni y to 1 w .
           1   w it ws d d m i n t d thal this cast involved Fsstnliatly a question of law? the parties
submltte Ivn’tten legal arguments on tbe merits ofthe issues invohd Followed by oral argument

befom 11 imdcrs!gned Adminislmtive Law Judge on Apd 24,2008.
       1 :TaxDisian messes Corncast’s rcd u d persod propertyp u t to Ark,CodeAnn.

526-24         I, quotcd above, and slso hrk, Code Ann. @26-26-1602--1612          Whilc C o r n docs
not d i q      2                                         cs n
                   rwpondent’s authority to as tangible p r o d proprtty, it does cMlenge
                                             sw

respond( ’ nulhority to include the vduc or intangible pamnal p r o m in its nswntent. ?he
         s

           2




                                                                                000945
                                                                                                          Add.-   458-
                                                                   DOCKET NO,06-OW-T
                                                                   PAGE 3
issue p m k d is one ofstatul~y
                              interprelation.
                        x
       hior IOIhe 2005 m yew, cableteIevMon companieswere not required to ~prt I
                                                                            the                le


          persostd propnzy. such DS, liaachises, liccws, and godwll,to the T x Division
offntan@ble                                                                 e                  d

it was not assessed, Starting with the tax year, 2005, snd continuing fw d1 succeeding years   ,e

annuf report form required of able television cornpanics has rcqucstcd information on the 1    .e

                              theTmEvisionhasincludcdsuchpropcrty m thetotdasse
~fin~angiblepcrsona1property:and                                                               d

valuation. The Tax Didsion made thls change because it concluded that its prc-2005 treame      r
                                                                                               b
intmgiibIe personal property was coatmy to law.
       From the inccption ofthc 2005 assessment process throughout this rCView proceeding      t:

Tax Division has emistently and repearedly takcn the position tbat it hlievcd the prP:         5

treatment ofintangible personal propem was inwmct and that applicable stale law quim           e

m e m e n t of intmglblc personal propem. Nohvibtandig any susp~cIonsofpcWoner tc              c

conlmy, there i s no cvidcnce of any hiddenrewon or secret a w d a behind thrs change of p     r.

              m
The questiDR h is simply whether t respondent's practice of inchdingrhc vahe of intnnl
                                 k                                                             C


pwsonal pmpwty in B cable mmpany'swcssrnmt since2005 I lawful and in accordancewid
                                                      s                                        C    t

Tau Division's skiturory dutfes and raponsmilities.

                                                                                               3

pawwh5*
       Ark, Code Ann. 626-261 803. enacted In 1975 ag Section 2 d A c t 175, slates thnt:
                                                                                                    I

              ThC T x D M o n of the Arkansas PubIic ServiceCornisionshdI adoptsuch I S
                    n
       and tegulallonsw arcncwsnry in orderto rnakeorigim1assessncnts of al properly, 1 i
                                                                             l
       ml nnd F n d , used by cable teIevision systems in this state. {ernphasbsuppkd)




                                                                         000946
rnaintDins that samehowh u e the TL.Division has not promulgnted or adopted any


t~ the year,   2005, that tbtS Lnvalldates its assessment of such proper&. Respondent do=




                                                                               a
fied sections of Act 129 af 1927, ns amended, pmvide detailed guidance to the T x

br E;urwing mt its assessment duties. Ark Code Ann §26-264606 (b) spccifically

.    .
’ , dl property, tangible and intangibk, includinggood will, eesements, and franchises
pertytabe irrcluded i an assmmmtbytheTaxDivision. Ark, Code Ann. $?6-26-1611
                    n
icerllym e n l i o n s ” i n t ~ ~ 1 ~ ~ propemlobe includcd masscssmentsbythe Tau
                                         ”p~
 r
A k Code Ana. &W26-1607 prcscn’beE t h e duntion methoddo~ico the Tax
                                                            for                             I



I   use in wnying D U ~ assessmenL duties. Ark. Code Ann. §26-2&.I609 provides for a
                      its

w l m c e wilh the Tax Division prior ta the final assessment determination by the Tx
                                                                                    a       I

4rk. Code Ann. 9 6 - 2 6 1610 prescribes thcnotict Guirement to be given 10 the taxpayer
inal determination is made and aIm provides fbr and outlines the review praccdurr:
I the taxpoyer if he is dismtisficdwith Lhc ~ ~ s e m c n l .
                                                        Although hrk. CodeAnn.@6-26-
y. pmvlds fbr n somewhat diffemt procedm and mhdology to be used by the T x
                                                                         a
                                                                    DOCKET NO.06-097-T
                                                                    PAGE 5
                                                                                                   I   .
Division in assessing"prhatc EM companies,"' no such sepsratt pmmdurc IW specified b

                                            syslems. 1conclude that Ark. Codc Ann. 052
General Assembly for assessingcable kl~vision
1602--1612pmvides sufficiently detailedguidelmfortheTauDivisiontocnrryout Itsasses,




       Corncast's main argument in this CMC is that Ark. Cude Arm. $26-3-302 prohibits the

Division from assessingits inhgible persod property. Thisstntule, enacted 85 Act 106 of I


               (a) A inmgi blepersonal propmy inthis state shall be exempt from a11ad valr
                    I
       tax h i e s of counties, cities and school districts in the slitate.
               @) The aemptian provided in this section shell bc applienbk With m w tc
                                                                                   p t
       nssessmentand m i o n ofintangiblepersonal propertyon and aRcr Janrrpry 1,1976, M
       ad ralorcm lues shall be assessed or collect&   on such property for any M o d aRcrJan
       1, 1976.

       The isme whether inlangible personal property i exempt from taxation in A r k a m u.
                                                     s
                                                                                                   I
t i slntute has k e n addressed by the A r k n m Supreme Court in Uzmk Gus P@cline Cor;
hs
Arkukzsm Ptibtlc Servlce Calm 'n, i42Ark.59429 S. W3d 730 (2000), In which the Court r

      l
      e
that a various sections aTArk Code Ann. 1§26-26-l602-1612 which spec'rficaIIy rnentlor:

assessment by thc Tax D M o n uf inhgibleperwml property 8re specific in nature as o p p m        1

the wxemption ohtangible pmond property i Ark. Code Ann. $26-3-342,which is generr
                                         n

                                                                                      a
nature, and thus the speciIic power to ass- intangible personal propcrty granted the Tx Divl!

by the Former ciicd statutesWill con& the gcned exemption language of A r k Code Ann. $21




                                                                          000948
                                                                                                Add.461    .
                                                                        DOCKET NO.05-097-TD
                                                                        PAGE 6
302. 0




Code, ii

jrcari af

Code A

intangit

cxmp~ ,statute. On this point he Supreme Court stated:
           1980, no effwt w s made by the Genaal AsxmbIy to exclude or exempt Inhngible
                                                             mes,
         1 ipcrtyfrornnssessrnenlforpaymentof~~~u~e~ Mureover,Act 9of 19#0,which
          1
           5 codified in patt as &X-26-1607fi), specifically included methods far assessing m l u ~
           3se methods, as already discwed, included c o n s i d ~ o f Intangible proper&such EM
                                                                      d~
           rk, deb4 and future income, It reasonablyfollows that had the Gcneraf Asembty desired
        I ~iminateintan~lepcrxlnelproperty       hdmlatingdue,itwould not have.enncted Act                  L

        ! r 1980. On B related stlbjcct we hnve hcld that h c absence ofa later change by Ihe
            f
        i nerd Assembly of stntutcs intapwed a cerInin way by this wurt means our
                                      m
        j :rpretalims&he stalute~ i nthe law. talvhon Farm S I ? ~ $ ~Dram., 335 Ark,
                                                                               Y, J
        4  i, 984 S.W.2d I (19%). The same should bc cquaIty true of shtutes t h t ITC ctcar but
        1  ich have not bcen changed by the Genera1 AssembIy.
        I m a s t suggests &nt the Supreme Cow was wrong in its interpretotioa arActs 9 md 10

of 1480 cause Act TO did not lis! cable kkvision cornpanics in the amendment of Seth 14 of                  I

                                                                                                            I
Act 123       1927, as kmended However, Act 9 of1980, cited by the Court,restoles tho DppIication

ofsectic t 8 ofAct 139of1427,asmended, to          ".. allpersuns,firms,campmlg co-pdip,
coopem        3 associations, a
               ,                  d corporations, required by law to h assessed by the Tror Division."
section       i codified a Ark. Code Ana. 526-26-1607 d clearly applies to Corncast which is
              s           s




                                                                              000949
                                                                                                         Add. -   462   .
000950
.--,




       000951
                Add.-   464
long before cabic televisionc m e into king! Sections2-4 of Aei 175 of 1975 are now d
BS Ark. Codc Ann. 4$26-2&18OI-1803,        Section 5 ofAct 175 uf 1975 expreffes the legkb
inlent thnt the property of cabletelevision eompnniesbe ppcrly assessed for purposes of taxa

Certainly, when rlic Gcneml Assembly added eablc tebvjsion to the list ofd r i e s named in

CadeAm. 4226-24-103 by A d I75in 1975,it clearly intcnded thattheTaxDiv~~nunif~rmly81

them along With the other entities namcd therein,

       Fudier. in thisconnection, Ark, Code Ann. 526-26-1 606@] rquira tbe Tax Division
..rtscemin the vdue of all propay, mgbh and intangible, including s o d will, casemcnls,

the wluntion evwy element that adbralue to the property." ( e m p W added) The origin of

Code section is Section 17 of Act 129, but rhat section of Act 129 wcs theterm, "Act", whm

term, "mbchapW', now n p p m in the Coda If Ms substttutim by the d i f i e r is not made
reach of Ark, Code Ann. 826-26-1606ro) would be much broader. The GencFel Assembiy dic


wording changee,Acodificationerrorcannot bealloived to override legislativeintenL S Ciff
                                                                                   w
                                                                                                   t




                                                                        000952
                                                                                               Add. -   465,
                                                                                                    I



1
I
                                                              DQCKET NO. WO97-TD
                                                              PAGE IO
    xr Y. CifyofCaddo V@?ky. Ark 155 at 157458,806 S,W.Zd 6 at 7 (IQPII, See also,
                           305
    MY.Deuring, 89 Aik.598,117      ..
                                   SW 1066 at 1068 (19009)andSrare15 h e y , 1% Ark, 169,
                                                                                    ". .
    3 I5 a 3 I (I 9223, slanding for the proposition lhatthe amendment of a statute , is to
              6

    thc original act as to make it read in the s m e manner it wadd have d, had berm
                                                                          if it
    enacted as amended."     It i n mxlncbion based on these nuthbrilies that all p v X m
                                s q
    9 of 1927,   DS   amended, now apply to cable television systems h e same as if such
                                                                                r
    s had been listed when the aci was ocigimllycnaacd Thesepvidonsalso indudc A k
    .#§2626-160f-1616.
    Litioner nlso apparently contends tihat because cuble ielevisiion compnies are not

    y listed i Ark, Code Ann. §26-26-1601, they are not subject to assessment atid rrrxadon.
              n
    iP §26-261GM@) is correctly read to include the phrase, %s       pet",   ratbcr ihnn "this

    T, nsdiscussed Inthe prccedingpmgmph oftbii order, thenthe listiryo h b t e television

    d e Ann @6-24.103       is consistent wt the compmirs liied in Subchnptw 16 of tltc
                                           ih
    kansPs Cade.

    I M n gchis m e Ln ofreasoning,XSubchapw 16 duesnotcncDmpass cable tdevision,
                     ie

    oncr hw no assessment or appcd procedure, Ark Code Am. g§26-26480L--lSo3

    D   rcqubment of m amud tax report, no deadline or provkion for extension of time

    ch io file ~ p o - no methodologies ofvduation, no notice of assessment. and no appeal
    or h&ng &e. Comeost filedon October 17,2006, awaiverof the h d n g datepursuant
    de Ann, §26-%1610(b)(2).      It n tfd the PuIsski County Trcpsurcr that it was pyhg
                                      oii
                                         ". .
    mend property faxes under prates1 , pursuant to the provisions oTArk. Code Ann.




                                                                   uuo953
                                                                                                 Add--   466
         k

         ry
         :h


         z

         e.

         IS

         3f

         (
         I:



         IC




         m
         !c



         '5



         SI




         le

         IC




000954
                                                                DUCKErND.0 4 7 m
                                                                          69-
                                                                PAGE 12


cone1    r and has the du[y lo mskesuch B-srnmt
         e                                        as it deemsjust and equilable. ATILCodeAm.
926-5    606.



1602.



         tnnccessary.


€iitpt

Am.



value


Cornt




l4&
Diane
         of tbc Cornmidon




                                                                      000955
                                                                                               Add. - 4-68.
                                                                                      .J,



                                                                                      I




                                        QBm3
       On J a n w    11, 2008,   Administrative Law Judge Burl C, ICoknberry PA:
Rotenberrf] h u e d Order NO.g in the abom@d m k t concluding therein
                                              ce                                      I


folloM:
       *
       .  I am compelledto condudethat a full, fair and cumplek dekrmiaation
       and mdutim of this petition for rwierv by comcast Cable of its 2006
       annual assessment of its r e d and personal property for ad valorem tax
        purpose^ is essentially a question of law, In my opinion it i a question o€
                                                                    s
       sbtutory interpretation; and it does hut requirethe extensive development
       of a factual record requiringthe use of discway, the prefiling of prepared
       testimony, or nnevidentiaryhearingwith live witnesses,
[Order g at 2).
       On October 3,20[18, ALJ Rotehbmy issued his h d Order No. 1 in this matt
                                                                  3

ruhg in part that the Tax Division of the Arkmas Public Service Cornm53sTon [ T
                                                                             *i
Division"), a a matter of law, "properlyincluded in Corncast's 2006 ad d m m t;
             s
assessmentthe value of* intangibleproperty." Acmrdindy, ALT Rotenberry affinni
the Tax Division's 2006 ad ualuretn assessment of Corncast Cable Corporation of Gl
                                                                                 A
Rack ("mmast?and dismissed ComwsYs Petition for Review. (Order No,13 at 1 )
                                                                         2.

      On October 31,2008,Corncast filed i Petitioner's Applimhbn fir Rehem't
                                        k
and Objections to the Adninislmtiue Law Judge's Order NOS. g and 1 (Comcasl
                                                                  3

"Applicationfor Rehewing").




                                                                    000956
                                                                                            Add. -   469   -
at:
     Corncast's Application is both too late and ~ Q Oearly, and the
'erence to Order No. g in the tide and firdpmgmph of t h e Applhadan
t not supported by the body of tha Application. Order 9 [was] miled
nuaryri [2008]. Accordingto Order fsprmdure mdkk Code Ann. 8
-2-pqCorncast had io days to me objecdons to Order 9 and 30 daysto
: rehearingof Order 9. Cumcast did not f l objections within ID &ys
 k                                           ~
 a rehearing appliatim tvithin 30 days o Order 9. And Corncads
                                           f
inher 3rApplhtion speci&~ no m m n s why Order g is flawed.
     Order 19 [was] filed October 3 ZOO^], Order I r e q u k that any
jections t o an adminfshdvelaw judge's order be filed within m drtys.
m a t ' s Ocbber 31 filing is too fate and any objections a x waived. But
der I does not wuditiionthe right to file a rehearing applfcatioa on f ie
ag objectforis. Order 1 d w provide that an Aw-issued oderbecomes
 order of the cmun*ksionafter 30 days if 110 timely objections are fled
3 the Commission does not modify the order. Thus Order 13 became EL
mmission-approved order on November z, 30 days a b r Order 1 [ )   3 m
i Ak Code Ann. 5 23-2-422provides that a party may apply for
 d r
tearing 30 days          the Commksion's order is mruled. Although
ire was no mailing on November z when Order                     became a
mrnission order, this date still starb the duck on reharing
~Ucations. Corncost therefore has 30 days d e r November 2 to file for
,wing. Corncash October 31 application 5s premature, This is
dogous to a litigant in circuit court filing a notice of appeal befora the
d order is issued,




; to   Order No. g pursuant:to the provisions of Designation Order No. I and
timely file an application for rehearing of .Order No. g pursuant to the
i of both   Desigoation order No. I and Ark. code.Ann. 5 23-2-422, The Tax
3 also correct in its assertion &at   Comcast's application for rehearing of Order
IS fled "too   e d f or upmnaturcn #though CornWs October 31, 2008,




                                                              000957
                                                                                     Add.-   470
3Y ORDER OF THE COMMISSION.
This
       -& ofNwernbar, 2008.
        day




&La-            -

                              000958
                                       Add. -   474
000959
         Add. -472
-.




     OUO96 I
               Add.-   474-
I
‘




    000962
             Add. -   475
000963
         Add- 476-
A d d - 477.
..
I
I




     000965
              Add. - 478
          J
D Honorable, commissioner
 .




          000966
                            Add.-   479
..
     I




a




         000967
                  Add.-   480
                                                                          liu       5 3 cg
                        ARKANSAS PUBLIC SERVICE COMMISSION                      .e
                                                                                r.!i
                                                                                t
                                                                                       p
                                                                                     L,D
~ ~ ~ E M A ~ B O ~ T P E ]~ ~                                    ~ ~ ~ ~ C ~ ~ C A S T
CABLE CORPORATION OF LITTLE ROCK, MC. )                           DOCKET NO.07-0741'3
FOR REVIEW OF ITS 2007 AD VALOREM TAX 1                           OWERNO. 1%
ASSESSMENT                             I
                                       1
~TWE~A~ROFTHEP~ONOFCOMCAST             )
CABLE CURPOMTiON OF LITTLE RUCK,MC. 1                             IDOCKl2T"O. 08-105-7
FOR REVIEW OF 1 s 2008 AD 'VALOREM TAX 1
               1                                                  ORDERNO. J   L
ASSESSM ENT                            1

Appamnm Peddvner, Comcast CabIc Cotporntion of Little Rock, lnc., reprcsented by E
        G. Snyre, Ammy at law, Li.ittlcRock, Arkarm 72201; hpondent,Tax Di
        of the Arkansas Public Service Commission,reprcsented by Paul J. Ward, Atl
        st Law,Linle Rock, Arkansas 7220I.


                                            ORDER

       This case i n v o b c hnllengcs to the ud vnlmetu ~ K assessments made by the Tx D
                                                             X                        a i
of the M m ~ ~ Public Stm'cc Commission
               ns                              r
                                              un Division or Rwpondent} far each of !k



assessment for addorem lax puspasea oftbe real arld personal proptrty ofvnrious businc
commercial: enlerprks owningsuch properly located and doing businessin the Stctte of Mi




by theTax Division is the cable television industry.
       Thc duty and   PD~W    of assessment over the property of cable television enterpn'
sptcificdy @en to the Tax Division by Act 175 of 1975 ofthc Acb of Arknnsns. codifid III
Code Ann, 526-24- 103, which reads:




                                         1-                             000968
                                                                                             Add.- 481-
i




    000969
             Add. -
                      482
by rcfmnco 10these orders, Nos. !through 17 of these iadividlml pnd consolidated dixkers.
         Pursuant to Order NO.6, by tht Com&dDna these consolidatedCPSCS wwc heard by

undcm’gncdAdminisbathe Lnw Judee (Au)on January 21,2009.

         Comast bnsical1yhas four positions in this case. ?hey ace sc~tfor& in Pdtioncr’s Th
Amended andRestnledPetition forReviw ofAdVdwemTm Assessment in DocketNo.07-09

                                and in
~,cha~len~ngitsyear20~7’frtsstssm~nt,Petitioner’s Second AmRldedand ReslotedPetili
forReview of Ad Valorern Ta Assessment in Docket No. 08-1OS-TD, chaIfengiq Its y m 20

Pssesrmenl.   Both ofthese amendedpetitions for r w k v were filed on Dccernber2, ZOOS. Each
these mmded petitions tlssert i d d c a l bases for overturning thc 2M7and 2008 assessments,
         Fm,Cornmi aryes tbat Act 106 of I917 of the Acis of hkansas, codified os Ark, &I

                                                         .
             exempts from a s m a t and taKaibn Ib. all intang’ble pcrsonal propeein tt
Ann. §26-3-305

Srak ,   .”on and a   h January 1,1976.

         Secondly, in Count I orCornmt’s mended petitidom it is aqpedthat Section4 of Act 11
                            I




                                                                        ouu970
                                                                                               Add:-   483
                                                                         D O W X NU.07-094-TD
                                                                         DOCICETNO. 08-105-TD
                                                                         PAGE4
of1977 a gmcral repealing clause, rep& any atatutw which might be in conflicr w Act 106 of
                                                                               h
                                                                               i
m7 I
 7.
sach 05,

CodeA

PWW


law, sp

Comrnr

fees by

inrangik
discrimi rr~toq,'*Corncast arguesthatthe asseffrmentandmntiond irsintmgiblo personal property

is indec I "uunduJy discriminatory." Corncast cites the precmptIon subsection of &e GtMe

cornu ications Policy Act of 1984, to-idt,47 U.S.C. 4556@), as authority hbrjlspositionin th'~

rcgnrd.
                                                                                           a
          1 3ucfhly, and hally, Corncast mgues i Count T of its mended petitions lbat the T x
                                                n       V

Divisiai s applicalionand adminishation of its ad v a l o r c m . asxmment procdures as rcspecls
                                                                  ~

the a men1ofthe intangiblepersonal propeny ofcable television spiemsIs discn'minatory, has
     m
no mlir       .a? basis, nnd   is violative of its equal protection ,rights under the fcderal and   sbtc

conslitu ons.

          1   3r any and d of the nbove m
                          1                  n s , Corncast E&   that the Tm Division's assmcnts in

thwcco. solidotd cussesinvolvingtheytars, 2007 rmd2008, bcrevemedandw aside,mdthat these




                                                                               00097 I
                                                                                                           ~ d d . - 484.
                                                                     DOCKET NO,07-094-7
                                                                     DOCKET NO. os-105-1
                                                                     PAGE 5
matters be rernnadd to the Tax Division fw new assess men!^ in a ~ c ~ r d a n with law.
                                                                               ce

                                                   or
       The Tax Division denics that il has erromws~y unlawfMfyinterpreted or a p p h            5

asssessment statutcs to Petitioner in these matters by induding the value of its hknglble per   I!

property i its assessments. Ti cuntendsthat it has made (huc assesmtentsin rrcoprdnnccwitl
          n                                                                                     M

and thnt thtv~~tionmcthodoIogyitbasused~resultedincorrectassessmentsfor~of~~
                                                                        0


yearsinvdved. TheTaxDivisionEiuthawguest h t Petitioner'surgumentsaswell itsptexnl              ll

of these arguments at the hmhg on Jmuary 31,2009, and in briefs befm and aRer such ha           *:
i falatly dekctivc for mm e s s of m o n s too nummus and wneccmry to addrcss In this 4
s                                                                                               :r

for the reason hcreinafferdiscussed.
       The Tax DIvision MerpIeadsrrs an aainnative defense to Corncast's petitionsfor re        v

inthesematterslhat heyam h        d by lhe doctrineofrmJidiCara. It iSthisIssue onwhich this    E


turns, Soma summarization of the factual and proccdurat background and history of I             e

consolidated rnatlers in additton to what has shady been discussed in this order is necesso     3

understand why and how the defense of ra3J1tdku~~
                                               i applicerblc
                                                s
       k polnled ON earlier i this Order, these hvo consulidaied w actually r e p n m
                             n                                                                  3

second and third jn a series of monsecutive y   m chsllcngesby Corncast to the assessment c     s
intangible ptrsorral property by the Tu Division, T britny d e w , the first ChdJcngc came
                                                   o                                            1

mu?tofthe Tax Division's year 2006 assesmen& That dockct number is APSC Docket No,

097-TD.SevediSthesameIegatagumenlsmndehthcse wnsolidat~l2OD7
                                                           rmd2008assmr                         L

cases were BISO made in the 2006 case. which mdted In ruling an the me& adverse to Corn         L
by this Administrathe Law Judge (Aw). The fimI A U order in the 2006 docket is Order No         I




                                                                          000972
                                                                                                     Add. -   485
'-.
  i
                                                                              D O C W NO,07494-TD
                                                                              DOCKETNO. 0&105-TD
                                                                              PAGE 6
      isslleda .dfiIed with the Secrdary ofthis Commission on Octo~3,2008.Inthis ordw every issuc
      which 'i is timely raised by the Peritionerwas addressedanddccidtd. In OrderNa, 13 in the2006
      docket, he undersigned ALJ rtlied hcsvily, but not exclusively, on the Arkansas Supreme court

                                                      Senlice Comm 'n,342Ark, 59 1,29 S W 3 d
      decisior in&wk Gas Plpeline Cwp.Y. A~iknnsnsPubllc
      730 (21 101, ruling that the     T x Division of she Arkoasss Public Service Commission had the
                                        a
      SMtUtPr:       aulhorlty nnd rfsponsibMty to Include &e value of an intrastate pipcline's intnngibk

      m m property In its ad Imutorem ~ n assessments fur the years, 1935 and 1996,
                                          x

                     shuM bc noted, however, that after the final hearing in this care, which took place Qn
      April 2f 2008, and was for the purpose of orat argument only on issues that weit fulIy briefed by

      tbe p t
           rl    sas ofApril 18.2008. Comast filed B motion io mend3s petihn for r c v i e ~in that ZOO6
                                                                                             ,

      cllse on   urn 9,2008, some forty-six (46) days afkr the record had beenc l o d , the casc WRS under
      active c nsideration, and I final ordw in preparation by the undersigned ALS. The purpose of
                                 b

      C o m a s thirteenth hour motion to amend its petilionfor review was s o h t it could aswl, arye
      and haw consideredtwo arymenrs not raised in its initial petition for review but raised and pryed
      in its rei y brfef filed on April 18,2008, and in oral aqumenl on April 24,2008, Counsel for the

      T x Div :ion timely objected to the consideralion by &e.
       p                                                           AtJ of these proposed amendments and
      new sy ments, In Order No. 11 of N S C Dmket No. C6-097-TD, dated July 22,2008, the
      undm& led AW nrlcd that,
                 I
                         , ,Cornads mtim to amcnd its petitim for review Is untimely, coming aRer the
                          ,
                         record in this case has bcen dosed and the cape submittedfor decision on thc mcrifs,
                         and therefore Comwt's motion to amcndis denid The two argumentsm c n t h d
                                                                             oflhis m s c
                         above wlll not be considered in the d e l i b e n h ~




                                                                                     000973
                                                                                                                Add. - 486
                                                                  DOCKET NO. 07-094-1
                                                                  DOCKETNO. (18-1 057
                                                                  PAGE 7
       On Oebbcr3,2008,'m MerNo. 13 ofAPSC Docket No. WO97-TD (the 2006 c w



tvhich WWE W      y raised i that case. This order (Order No. 13 of Docket No. 060%
                           n

addressed and rcjected t hseveral wgummts pmperly and timely kcfarethe Aw in that 20M
                           ~

and found that, The T x Divisionproperly includedin Comcnst's ail06 addoretit M asses:
                     a
the value d i t s inmgibIe persod pmpty,'' and dismissed Comcest's petition for nview.
       Corn-     soughtreview by thc Commissionof theALJ's OrderNo. 13 in DocketNo.06
TD nswll as tht AIJ'smlkrOrdcrNo. 9 in that docket holdinglhallht kmsxabed by Coi
presenred questions-of law only and did not mise quWtions o f fact. By Order No, 14 of this
docket, h e d and filedNovember 26,2008, the Commission fmt naled that Comast's anen


10 the hLI   Order No. 13, ihe AW's find ordm i thfs 2006 docket, the Commission Mes
                                              n
conctnding p m b in Order No,14:
            m p

                      Fmlly, the Commission bas miewed Order No. 13, Corncast's Oc
               31,2008, AppIiwGon for Reh&n& and IXx Division's November 10, :
                                                        IT  a
               Rcsponse thereto and Rnds that, ps amalteroflaw, OderNo. 13 comctiy disi
               of Comctrst's Pctition for Rmiw ofits 2006 u d v o ? massessment

       Ncxt, dmhg the pendency oftheie conwdidated2007 and 2008 lax assessment chdh

in ~etwodoeketsnowunderconsid~t~~n
                              ioc~udingthehenrine,thereofonJatluary21,20W
thesubmissionof Writren bri& by the parties, Cbmcpst proceaded to attempt to appeal Comml
Order No.14 in Docket No. 06-097-'lIl, h a Commission's find order i that docket, to h e Fu
                                                                    n
                                                      Petitioner's npticeof a p p d
County Circuit CoiutqrnvidedbyArk. CodeAnn. J26-24-123.




                                                                         000974
                                                                                              Ad& -   487
                                                         DOCKETNU, 07-034-TD
                                                         DOCKET No,08-1OETD
                                                         PAGE 8
n Order No,14 ws filed with rhe Arkansas PubIIc Sewice Commission on December
               a

[he Tax Divhion chpllengd the tirnelinessof Corncast's Dotice offappWr, The matter

mder mmIderation by the Comfsslon. On April 29,20009, lhc Comdssion in an
                                                   t
order, m e r No. 1S of Dockct N . C6-037-TD, mIed b the slalutoty requirements
                               o
rvhen and how to pefiect appcaIsto circuit COW from decisions of lhc Commission in
I mal[crs are jmkdicbond, cannot be waived or extended, md Corncast's notice cf
n                                                                             r
                                                     ld
                must be dismissed beeaxe it was'nof se wirbin Ihc thirty (30)
ocketNo,06-097-TD
y time: frame,

;bringslhe discussion back to whether Comast's petitions for rwiew of its 2OD? and

h # t fax   assessment in h e eonsollidatd doacts are barred by Ihe doclrine of res

nsseFtedby iha Ta.c Division. ARer much considedon, 1hmdecidcdthat they are and

ust be:dismissed wih prejudice.

doctrlne ofresfidcotnis defined in Black's Law Dictionary in tho following t m s :
  A m a w adjudged; athingjudiciallyactedupon ordecidd; IL thing ormattersettled
  bybdgment, ,,,RQICrhat final judgment or dccrec on meritsby court ofcompetent
  jurisdlctloni coocrusiveofiightsofpartiesor thcirprfvies on all Iarersuits on points
               s
  and matten determinedin f m c rsuit. Arnt~hnSS IS WickwireSpencerSteel
                                                     Co.
  Co., D.C.N.Y., 8 FSupp. 562,566.. .,The s a d substancc of thewhole ruIc is
                                             m
  that a matteroneejum'ciaIlydecided 3 fmdtydecided. M a d e Y. Pud, 263 Ky. 183,
                                      s
  92 S.W.2d 11,14,     ..B l ~ d 'h v Dfcfionqv,4" EdKon, p. I470 ( 9 L .
                                  s                                     15)
Mwtaisawlt estabti~~rutehAme~~comr?~llawandJurisprudence~y~ichbas
sUy recognized for centun'es ns it has been dweloped by thc courts. FdlaWin~
                                                                           m

rnenls a h u t the docitine found in one 1 4 treatise:

            Resjudicatais a mh of universal law pervading every ivell:regutatedsydem




                                                              000975
                                                                                         ~ d d . -488
                                                     DOCKET NO. 07-094-1
                                                     DOCKET NO. 08-105-1
                                                     PAGE 9




       ***       Resjudicap or claim preclrrsion operates as a bar to a reasmi
amuse ofnction which has preVi~sIy       beenadjudica?ed a proceedingbelwec
                                                        in
s m c parties OF thoso in priviiy with the parties, and precludes relitigation
issucs dccidcd or which cauld have betn ddded,       ***       (emphasis addel
                     VQ2,p 242 (1 99’1).
U S .J t t d ~ i m t s




                                                                                 Add. - 489
000977
         Add. :   490
notwithstandhg differently named phiitif5 in t e two cases there wns such Q privily of in
                                              h




bcendecided (alboi t arguablyincorrectly) in one of the earlieractions. BarrIqy v. Wnlers, 357

386,182 S,W,3d 31 (2004). While ihc somewhat confusing, if nol cmplicnted, facts Jnthat




issue ofresjii&cafa. At one point in the opinion It is stated:




OF this proposition.




                                                                          000978
                                                                                                 Add. -
                                                                                  7O T
                                                                       DOCKET NO-0 - W D
                                                                       DOCKET NU.08-10S-TI)
                                                                       PAGE 12
                       significant point made by the Supreme Court in Bnrclay V.
              t antlthe~                                                              Wums, sipru,
                    o to the c u e M bar, €5 the fhct ihat different mable pCrjods ! w o M ia that m a

                      e application of the dockine ofresJrdtcura. This was deemed "imlevant*in

                       impbrtrmt thingws that h ebasic cInim asserrcd,that is,theuncwrstitutionalhy
                                       a



                 ning the prjncipIes of the doehim of r~ffrtdlcnlan the light of the foregoing
                                                                 i
                        g legd   authorities generally and Arkansas   case   Inw, nnd applyhg these
                        tbe factsoffiwi hvo consolidated cascsunderconsidtrahqJmustw~~clude
                                                       ~
                        ed petitions for m - e w Q F 2007 and 2008 adva7wtemtax asscssmu~is
                                                                                          ~         t e

                           on &e merits by m m n of W finality of the 2006 petition for sevicw
                           chim as IR the 2007 and ZOOS petitions for review, that is, that the Tax

                           unlawfully included the vdue of its intpngible personal properly in its


                              sed In this order, the undersignedAW, in Order No. 13 of h k e t No.
                                                            toComcastdlissueswhMwm
                              ZOU8,decidad~nthbmerltsadvmsely

                                                          oflered by Corncastin theso 2007 and
                                 et. The= iverc no srymwr~s

2008                                                                                they bewr
              which either were not or wdd not have been addressd in the 2006 case ~EHI

timely rais :d. The &mission affirmed OrdtrNo. 13 inits OrderNo, 1 onNovernber2Q2008.
                                                                  4
Finally, on




                                                                               0009 7 9
                                                                                                          Add.-   492
                                                                     DOCKET NO.0 - 8 - d
                                                                                704T
                                                                     DOCKETNO. 0 . 0 - 1
                                                                                &15T
                                                                     PAGE 13
   decision in the 2006 chdteqe Ifind decision nndsatisfied thc find requhmenr to be m
~Iic



@OM), whwe It is staled:



                      la some jun'dictions, finality for purposes of preclusion is equated
              finality for p t u p w of nppeal, In lhesejudsdicrionsajudgment i not final il
                                                                                    s
              sensa that i t binds &e parriesuolil the fpsin8 party has fafled M perfect an trppa
              undl Ihc highest cmd, whmjurisdiction is invoked by c i k r p w , nphdd!
              daision o fthe trial co-     (footmtesomitted)
      For the reasanshercinbcforc slated in thisorder it is found and determhedihatPctitioi




      This      d dayafMay,2009.




                                                                    Administrative Law Judgi




                                                                                                    f




                                                                            000980
                                                                                                        Add.-   493
00098 1
          Add. -   494
1PSCl Docket Search Results                                                     ?age I of2




                                                            '

http 9 / m .apscservices. info/cfiIi ngddocket-se arch-results.asp   1I -   ,
         Page 2 of2




         6/14/2010
000983
             Add.-    496
000984
         Add. -4 97
               BEFORE THE ARKANSAS PUBUC SERVICE COMMISslUW
                                                      I                  IU..
                                                                                3
IN THtIATER OF THE PETlTfON                      1
OF C ZAST Ul7LE ROCK, INC.
    C                                            1
FOR F flW OFTHE COMPANY'S 2003                   1
AD VP )REMTAX ASSESSMENT                         1           DOCKET NO. 09lO[d;l -TD


                              P m O N FOR REVIEW OF
                            AD VALOREM TAX ASSESSMENT
                Comes now Comcastof Little Rack, Inc.{heralnaf€ergeneta.aHy         o
                                                                          referrsd t as
"Cumc ?orTefioner"), B mpratlonorgan'aed and exi-               undertheIawsoftheState
of Atk    sas, and does hereby pefltitfoon the Arkansas Publlc      Service Commhkn

(hereir   er generally mferred €0as the "hnmissian")to revlew and revise Comcas~'8
2009 5    valorem tax aseessmsnt, as heretofore detemlned by the Cornmisslon's Tax
PiiSIO    md border suchassessmentto be revised downward I amount foreach ofthe
                                                          n
reason    )etforth below.

                                       PrnTIONER
                I Corncastof Uttle Rock, Inc. I a corporation organbd and existing under
                 .                            s
the lau   fthe State of Arkamas w f i its principalofice and corporatedomlclle located at

I020 tl   s Fourth Street, LIttle Rock, Arkansas 72201.
          t
                            GENERAL ALLEGATlONS OF FACT

                2.   Corncast I prindpally engaged in the bmlness of pmvidlng cable
                              s
           sewhxs to subscribers In mlmldpallffes boated within Pulaski and SaUne
          3f   Arkansas.
                3,   Comast has entered Into franchise agreements With munlcIpalltles

lacatec lthh these two muntles In which A provides cable televlsbn seivlces to Is
                                                                                t
subscri   E.   The Petitioner utiizes the public rights of way in such murricipalltles for




                                                                   000985
-7
  I
                             t
      p~rposss placament of Is cabks and ofher equipmentutilized in the dehery of I
             of


                    4,   Corncast owns real and iangible personal pmperty I m t e d wlthli
      State of Arkansas and the Petither utilizes a substantial number of vehicfes and 1
      items ofhnglblepersonalproperty lnthePeWoner'sbushessof provldlngcable t e b
      servicesto ifs subscriber customers wihin thess various rnunklpa8tles.
                    5 Pursuantb the provisions of Ark. Code Ann, 85 28-2&1801
                    .                                                              I   1802

      1803, Corncast i requjred to filean Annual "Ad V d o m Taf' Report (FormTPq, C
                     s
      TelevIsbn} wlth the Comrnlsshn's Tax Dlvlsfonon o bePore March 1 of each year.
                                                       r
      Petitioner hastlrnelyfibdItsAnnual "AdVaforemTasr*Reports wIththe Cornmisshn'i
      DMslon for dl yearn 2000 -2009 on or before March 1 of each ofthesepars {or upc
      extended basis that WBS agreed to by the personnel of the Comm'wlon's Tax DMs:

                    6,   The Commlsslon's Tax DMslon reviews the Petition& Annua
      Vaforem Taf Report by July f of aach year; detemlnes the value of ti.la PeMkner's

      and personalproperty io Arkansas (as reporfedby the PeiKonerb Ihe Cornrnisbn':
      Division); and the Tax DlvIssFon personnel of fhe Commkslm then certify such 8r
      assessment of the Tax DlvMon's dt m n aE n of fhe value of the Patltlonar'sprq
                                      se T n t o
      for ad valorem tax purposes, on or befbra July 15 of each year. The Tax DiVrsfon's
      I 2009, certiRcatlon of Os assessment of Camcast's teal and personat proper
       ,

      Arkansas for the p a r 2009 IS B t t 8 ~ h ~ d BS Exhibit A.
                                                 IWW~O
                   7 For each yew, during the p a r i d 2000-2009, Corncast reported w
                   .
      of all of Its reafand personal property bcated in Arkansas (on lis Annual 'Ad V3Iomm
      Repotts) filed with the CommlssIon'sTax DMslon r s mflected In the tabk setforth bt
                                                     a
      The Commission's T x Dinhion detemu'ned that lhe value of the Petltfonei's real
                        a

                                                 -2-




                                                                         000986
                                                                                              Add.-   499
            InArkansas, fr ad valoremtax assessmentpurposes,for each offhese
                         o
            was as reflscled Inthe table set forth below:
           VALUE OF REAL AND PERSONAL PROPERW OF
              CUMCASTCABLE wsrw IN ARKANSAS
              Value Remorted b.v-Comcast         ValueAssessed_bVAPS
                                                                   C

                     $2,980.81 5.00                     $ &4#,620.00
                     $ , Sq8.r 7.00
                      71                                $ 7,207,990.00
                     $8,928,080-00                      $ 3,928,080.00
                     $8,882,410.00                      $ S,Se2,410.00
                     $71576,306.00                      $ 8,475,050.00
                     $8,063,582.00                      $18,000,000.00
                     $7,7B3,48 6.00                     $zo,ooo,aoo.oo
                     $7,428,271 .OO                     $23,9r0,000.00
                     $7,0T1.808,00                      $28,000,000.00
                     $8,887,604.00                      $2~,0w3,000.00
                                                              of
     8. The Increases 0f?B8%,258%. 323%, 3@8% 407%, r8spcbv8ly~
                                            and

     values' of Comcasfs real and personal property k,Arkensas (as reported by
     tothe CommIssIon's T x DlvMonon each of Cumcast'sAnnual "Ad Valorem
                         a
     TD-I), far the years 200S,2006,2O07,2008 and 2009, as comparedto tha
     ues"of Comcasfsml and personalpropemin Arkansas [asdetermined by
      n's Tax Diyislunfor ad valorem tax assessmentpurposes) are dua solely
                 a
          t the T x Division personnel's emneous, capn'clous, unauthorlsed and
           o
          b~the ad valorem tax base cornputad by the Tax Divislon (for Corncast's
          ai property located in Arkansas) of the values attribuked by vle personnel
           n, f o r m , 2006,2007,2008 and 2009 (as reflected In the summary
                     above], of the 'tnlangible.personal property"owned bythe
            amgraph 7,


                   SPEGIFE ALLEGATIONS OF FACT

     9.      Corncast's buslness (and the simllar buslness of all cable felevlslon


.*




                                                              000987
servlce pmtders in Arkansas) I a business invoiVing the d&semInatlon of n
                             s
infannatlon, entertainment and ophbns, The budness of        8   cable television se

pro~Fcfw be most closdy and properly analogked €0the businesses andud€
        can
newspapers and rnagazhs, as weU as by televlslan and radio broadcasters-
              IO.    Corncast's business of prodding cable felevtsion serv'rces t


Arkansas) I a businessthatcannotbe dasstfladas either a Hutiity* or a 'common mi
          s
              11.    The Congress of the Unlted States (in i' enactment of the C
                                                           ts
TeIevSsion PolicyAct af .lS84,47 U.S.C. 5524-559) has preempted #e dstemhatic
to whether any cable televisionservice providet(doingbusiness wWh the U n W Sti
can be treated as a "common carrief' or a 'utilii. In t l mspect, 47 U.S.C. !
                                                       hs
provides, In part:

              (c)    Status of cablesystemas common carriero utili&,
                                                                r
                     A cable system shall not be subJectto reguMIon as a
                     wmmn carrier or utility by reason of providing any
                     cab b a m k ~

              12, The Arkansas Supreme Court (in that Courl's decision rendered b
caae o mamuld m lev'-
      f        b                Inc v. C&af P    a   m,305 Ark 428,809 S.W.2d

(Ark.1941)) recognhd #Is fedemf preemptive 'pollcy actlon", by expressly stathg p
revbwfngfhe ragu€atoryhldory of CATV) [ 305Ark, at479480; 809 S.W.2d at 889.1
that

             In the more recent dines, federal regdatlon has been the
             pmmTnentfaws fn analyzing the legal framework of the mble
             television Industry, cableAct of 1984 47 U S G 9 521 to 3 559
             establishes natknal pabcy h t l area.
                                               hs      ...The G b k Act
             speCrflmlly providss fhat cable systems am not cumman
             CaMes or publtc utilities, SectIon 641{c),

See also, FCG v. Midwest VI C a mratiQl&
                          dea           440      us. m9 (q979).
                                          -4-




                                                                  000988
                                                                                       Add. -   501
                 13.    With regard to the impdIon of faxes of geneml applbtlon (e.g.




      1
Income axes, salesluse taxes or ad vakrern taxes), the Congress aka expressly stated,
In its en cbnentof 47 U S C . 5 542{3)(j 1and (2XA) (as partofthe CableTelevision Pollcy
Act of 1 84)what levies oftaxes were Inknded to be, and what IeyIes of taxes were not
intend       to ba, a "francfiise fe~: as am appllcable to a     cable televlslon opemtots
bushe        . These federal stahtory pmvlsbnsexpressly state, as fdlows:
                 (g} "Franchise fee" defined. For the purposes of t h b
                        sedbn -
                                                *

                       (I) the term Ymnchlse feem  includes any tax, fee, or
                           assessment o any hfnd imposed by a
                                          f
                           franchising authoni or ofhergovemmantal enUty
                           on acable operator or MbIa subscnier, or both,
                           solely because of thelrstertus as such:

         I             (2) the term "franchisefee" does not fnclude     -
                       (A)    any tax, fee, or assessment of general
                              applrCaWlrty (Tndudlng any such tax, fee, ur
                                                          h
                              assessmentimposed on M utilities and cable
                              operators or thelr services but no! lncludlng a
                              tax, fee, or assessment Whkh I unduly s
                              dlscdmlnatoty against cabb operators or cable
                              subscnibm;);
                       STATUTORY BASIS FOR DETERMINATION
                          OF AD VALOREM TAX ASSESSMENTS
                14.    She Arkansas Genera! Assembly has expressly provided that, a3 a
                       poltcf Inthe State of Arkansas, thevatue of a buslness' orlndfviduals'

                       property" shall      be subject tu ad valorem tamtbn by wunllea,
                             within the SMe of Arkansas. l3pmssly, A k Coda Ann. 3263-
                                                                    r


                (a)    All lntanglble personal propprty In thh stab s h d be
                       exemptfrom all ad valorem taxes levied of muntles,
                       cKes,and school dkfrbts In the ab.
                                              6-




                                                                     000989
                                                                                                Add. -   502-
             (b)    The exemptIan provIdad In thls seckn aha11 be
                    applicable with respect to Lha assessment and
                    taxation ofhtanglblepersonalpmpwtyon and after
                    January I , lS76, and ho ad valorem tax= shall be
                    assessed or colIected ott such property for any
                    period after January I t 1976. {Emphssls Added).

A capy o the entire Act 106 of lB77, as enacted into law by the Arkansas C
        f
                                       .
Assembly, is attached hereto as Exhblt B



General Assembry has classhled and grouped specifiu bminesses (for ad        Y

assessment purposes} Into dlfferent subchapters of Chapters 28 of TYe 26

A h n s a s Coda of 1987,Annotated to wlt:

             a)     Banks. savlngs and loan assoclaflons,etc, (Ark. M e
                    Ann. 5 28-Z6-1501 et q ). ;
             (b)    Common carriers(p'plhes, railroads, €axis,bus hes,
                    aftlfnes, brge Ilnes, toll roads, tdegtaphs, and
                    telephone companies) and uMities [electric puwer, gas,
                    or water eompades) (Ark. Code Ann. 5 26-264 601, et
                    w.);
             (c)    Private car compan'ks (Ark, Cock Ann, 3 26-28-1701,
                    et seq.): and

             (d)    CableteIevislon(Ark, Code Ann. §26-2&18OlLet seq.).

             16.       pruvistioos ofArk. Code Ahn.§~2&2&?sls6 expressly provld
regard to the Annual Ad ValoremTx Reports of common cadets and utilities & .
                                                                          e,
separate businesses describd in the Ark. Code Ann. §2&26-1801)), as folbws:

             (a)    The returns  of the persons, f s companies. GO-
                                                  m,
                    parlnershlps, associations and corporations whose
                    assessment is pmvjded for by t k subchapter
                                                      h
                    [Subchapter 18- Utillks and CarrlemGenerally]shall
                    not be held to the wnclusive as to the value of the
                    property sd returned, but the Tax DMsIon of the
                    Arkansas Publrc Servle CommWon m make such
                                                         y




                                                                                  Add. -   503
                      asssssrnsnt of the propetty as It may deem Just and
                      equitable.
               @)     The Fax] Dlvlsion shall ascerbin the value of all
                      property. &nglbIe and krtangibfe, induding good wlll,
                      easements, and ftanchises, exept the fight t be a
                                                                   o
                      curporetion,It being the purpose of this subchspter,
                      [Subchapter 18. Utilities and Gank~Generallylto
                      Include In the valuation every element that adds
                      va Iue Lo f ha property. (Emphasfs Added),



26, St   iapter 18, CaMe Televlslon (Ark Code Ann. §28-264801, 1802 and ?aOS,
made     y the Arkansas GenemlAssembly by its passage ofAct 175 of 1975) expressly

prow     4th regard to fhe Annual Ad Valorem Tax Reports of cable Wvlsion servlce
pmvidi   y   as follows:


               As used In thls subchaptar, unless the context ohenvise
               raqulres, "cable WWan system" means any faclllty that, In
               whole or in part, receives, dhctfy or Indlrectiy, over the atand
               amplifies, or otherwise modifies, the slgnals transmMog
               programs broadcast by one ,(l) m m tetevision or mdh
                                                  or
               stations and distributes the slggnals by wire or cable 10
               subscribhgmembm oftha p u b h who pay forthe service,
                                                           Q
               History. Ads 1075, Nu. 175, § 3; A.S.R 1Q4?, 84-103,2



              The Arkansas Public Service CommTssTon ehaP have no
              jurisdiction over or duffes as regards cable feIevIsion systems
              other than the duty to make origlnal assessments af &e
              property Incorporated in or used by those systems as hereln
              prodded.
              Hlstory. Acts 1975, No. 175,s4 ASA Ig47,S 84905.3.
                                            ;




                                             -7-




                                                                     00099 I         Add. -   504
             The Tax D I N h ofthe Arkensas PublIc Service mmmlsslon
             shall adopt suchrulesand regtdations as am necessaryi order
                                                                 n
             to make m*gindassessme& of aU properly, both real and
             personal, used by cable MevklonSystems I thb &#e.
                                                        n
             History. Acts 1975, No. 175, 2; A.S.A. 1947.3 84403.1,



expms?ywntalned In Ark, a d e Ann. §26-2&1803, Le.
             'the Tax DiuisIon d tha A h n s a s Publc Swlca Comrnhslon
             ShSlI adoptsuch tulesand regulationsasarb necessaryinorder
             to make orlglnsl assessmentsofall property, real and pBIsonal,
             used by cable television syslems in t l state,"
                                                  hs
the Tax Dlvlslon of the Arkansas Publlc Servlca Commission has falled, mmpkl        1   to
adopt     wles or regulattons regardlngthead valorem €axationof the real and pe     nal
property of cabh television senrlce providers in Arkansas, at          the, durir   he
iidemnfng 33 years (slnce A d 175 of tS75 was enadled by the Arkansas Q              rl
                                                                                    ra
Assembly).
                                       COUNTI
             19. Until 2005, fhe personnel of the Commission'sTax Dlvisiononly      ide

mlnor valuaflon adjustments(If any}@M u s of Corncast'sreal and personal prop           as
                             Annual A d V ~ l ~ ~ ~ T B x R e (FomsT54)tl
stated by Comcastinffiecompan~s                               pwts                  the
                 ih
PetltlonsrfiIed wt ths Commission'sT a Dl~Mon.(See, paragraph 7,
                                                               above),
             20.    Beginnlng whh the 2005 Annual Ad Valorem Tax Report fi              w
Camcast wlth the Commlsslon's Tax OlvIsIon, the personnel of the Cornmisston'       'ax
DMslon have erroneously, capriclo~~sly, Illegally Included Inthe value of Corncad
                                    and                                             ea1

and personal pmpstty, forArkansasad valoremtax assessmentpurposes,an ovelall        Iue




                                                                 000992
                                                                                             Add.-   505
ted by the personnel of the Commlss!on's Tax D!vMon for c;Omcasfs real and
I propem In Arkansas that for the 2005,2006,2007,2008 and ZOO9 assessment

crudes values (detemlned solely by tRr, personnel of tha Commlsslun's Tax
     for the "lntangblo personal propert)r that m k utnfzed by Cwncasf In the
                                                 y
inceof Ttsbushessas aprovideru~fcabIe.television
                                               smlces t subscrlbers located
                                                       o
SBS,

         21.   The erroneous, mistaken, capn'cious, and iflegal actions Wen by h e
al oftha Cornmisslan's Tax WvisiOn, that cause thedue of Gorncast's %tangible

I propertg to be Included in the final computation oftha wrtlfied assessment ofthe

1%     real and personal property for the Zw19 ad valorem tax assessment par, as
I by the Tax Divisbn,hr ad valorem tax purposes (See ExhlblL A), I (and was) a
                                                                 s
     aml unaothorized actlon taken by the Tax DMslan's personnel without any
     authority, and, In fact, fn complete disregard of the statutory prohbMm against
on,as set fortb by the Arkansas GweralAssembly in Ark Code Ann. 5 28-3-302
         22    Therefore, the Commission's Tax Vidm has performed an Illegal
aken without statutory authority) that will [unless such adan by the Tax DhrJslon
sf is set aside by the Commlssbn In this review requested by the Petitioner)

     "If legala4 valorem taxes' #atthe Fetltianerwlll bewngfuly andlflegallyrequired
 the various muntIes, dbtes, and school dlW& withbt whlch Comcast wnducfs
talevislon sewice business In Arkansas.
         2.
          3    Based upon kmwfedge and bellef, the Petltbner assem that the
!I of the Cornmlssion'sTaxDlvlslonmay have amneously, wrongftrlly, and fllegatly
 D the
  n        k l s l o n rendered by the Arkansas Supme Courf In that Couifs E ~ S B
          as Piae l h Cornration vs, A-nsas    Puble Ssrvlae C-
                                                              o            342 Ark

                                      4-




                                                             OQQggQ
                                                                                       Add. -   506
6!3129 S.W. 2d 730 (Ark., 2 W , author&

actions In hcludlng the mlue of Commst's Yfanglble personal property" in the fi 1 ad
valorem lax bass comptrted b y t b T a x Division personnel fur Comcasf, ad vdo m tax
assessment forthe years 2006,ZDC6,2007,2008 and 2009. (See, Paragmph 7, bow,
and hhibii A).



            a
             24.
                           0 3 as               far W srmneous,capricfousl and Ilkgal
                                                    r




                    The Petitioner asseris that any sui91rdance by the
Comkslon's T x DMslon upon the declsbn In thls dted case of the Arkansas S
Court(as set out In the precedingparagraph) is improper, enunmus and wifhouta
legal b a s h The PdtioneralsoassartsthattheComrntsslon'sTax
of proof I attempting to sustain 8sadditionalassessment againstrnmcast, becausa
         n
patsonwl of the Commlsslon's Tax DiisTon are attempting to Impose an ad vdoy tax
                                                                                  I
                                                                                  I
                                                                                      the
                                                                                      me
                                                                                      mal
                                                                                      den
                                                                                      Bs8




[where no such ad wlorem tax bas ever bem Imposed, before 2005), and there has        38ll

no change whatsoever in the controllingand autbrlzlngstahties ( e ,Ark. Code Ann. 26-
                                                               L.
251801 through 9803) to sustaln such an erroneous, mprfdous and Illegal d&emlr Ron

by the personnel of tho Commission's T x Divfslon.
                                      a
             25.    In addition, Corncad asserts fo the Cornmksion that the ark^      SaS

Supmme Caurt (In that Cowfa above rnentloned declslon In the Ozark Bas         PJI
m t l o r t ease)   held, in interpreting and deciding an apparent conflict betwss the
              agakrsttha imposition of ad valorem faxes on the value ofa bud
*genemPpmh?bMon                                                                       SS'

'intanglbls persona1property' (as created by the Arhansas GensmIAssamblyin Ark, 1     ldde

Ann 2S3-302), and the 'specilic" allowanoeofthe InclUon of the value ofW *tan!        w
and "IntangiMe* personal pmperty In fhe assessed value of the property of a " n ron
                                                                             a
cad& or "utilityH (asdated by fhs Arkansas GeneralAssernMy fnArk W       e Ann. 5 2 26-
dBOB(b), that the %'specin&' statutory proWon wilI control over the "general"&I

                                         -10-




                                                                000994
prOvl1 n. The ratlonab of iMs Interpretative de&lon by the ArkansasSupreme Court ( )
                                                                                  I
dM a even condder or address the effect of the general repealer pmuiHons of Act 10s
    !

of I 9 ',and (2) ts         even applicable €n mmputlng the pmper determlnatlos of the
a
-       d value of Corncash real and personat propertyIn Arkansas (for ad vatorem tax
asset nent purposes), h e c a w Corncast I rrpt engaged In
                                         s                           of the 1 buslnessea
                                                                             6
descr XIbytheArkarrsas General Assembly In Title 26,Chapfer26, Subchapter18 of the
Arkar   IS C&     Annotated of Is87 {Ark. Coda Ann, 3 26-26-1 601, et seq.).
                26. The rationateadupted by me Mansas Supme Court in its&ark Gas

E4@         CorporatiM Case Isinappbbhfa the fa& pmented in this dlsputed matternow

behn he Cammisslon in this appeal by Commst It Is                  the Intangible personal

w
Pe          of"mrnmon w r W or "cltilwbusrnesses that could, In any event, be considered
taxall [foradWmm assessmenttax pwpases), underthoexpmss provlsfoonsof TdJe26,
Chap    '   26, Subchapter 16 of the Arkansas Code Annotated of 1887 (Ark, Code Ann. 8
1605    ough 1616)).The business bdng condocfed In Arkansas by Corncast is that o a
                                                                                 f
cable levislon swvlce provider [Mable,for ad vabmrn tax assessment purpose^, SUzIJt
under   8 wxpress provisionsof Tis 28, Chapbr26, Subchapter 18afthe Arkansas Code

Anml 3d of 1987(Ark. Code Ann, 9 26-28-1 BO? thmtrgh 1803)), and&as the buslness
ofa'         Mon cadef or mUtilHy"(or        of the 16 bushesses eXpE6dy kdad by the

Arkan        General Assembly I Ark. Code Ann. Q 26-2&3301).
                               n
                27. Therefom, the Petltloner asseristhat the personnel of the Comrnlssfon's
TaXD           cannot CWreEvy or legally m!y upon We tatlonab of, and the oplnlon reached
            kansasSupreme Gatrh declstbn In the Ozark Gas P w e CmmraPon c a s , as
            for erroneously, CaPIklOudy and Illegally includhng the varue of Corncash
             personal pmpew in the computed value of the Petltkmer's realand personal

                                            "11-
property I Arkansas (for ad vabrem tax assessment purposes for the pars 2005, D06,
          n
2O07,20O8 and 2009). The ArkahsasSuprsme Court's declskn b IhePmtkGaS P           ma
Sorpomtton c a s does       even deal wfth 8 buslnass subject to assi~srnen~
                                                                          unr      the
pravisionsofTRle28,Chapter26,Sub&pter?8of theArkansas Code of 1887(Ark             d
                                                                                  bB

~ n n9 zti-26-1aoi e. ~~3q.l.
     .             It
             28. The erroneous, capriciPus and ilkgal action of the Cornmbdor      Tax
Pivision personnel, In Includng In the oompu€eclad valorem tax assessment base 'the

                                             S e Paragraph 7 a n d M b f t A ) ~ she
Petitlonetsreal and personal prapertyfor2009{ e ,
of Corncast's YntanglbIe personal pmpertgp in Arkansas, is an action t h ~i mq ssly
                                                                          s
                                                                          t

prohlblted by the provisiQns of Ark Code Ann,   5 26-3402. Therefore, Camcast SI m b
that h e Commission must mmfe and set aside such ermneotlfi, capdclws and         sgal

assessment h a t has resultedfnsmtfieacHons taken by the personnel of the Comml: on's
Tax DIvislonforthe year2009. Instead, Corncastsubmitsthatthe Commissh mus nter
an order rdstng the 2009 ad vaIcrem tax assessment o C m M t by mducJi
                                                    f                              the
Petitloner's 2M39 assessed value of its real and personal pmpedy to the values a, ially
reported bythe mmpanyonIts 2OosAnnuatAd ValoremTaxReport(Form TD-l)fd~ dth
the Commlsslon's Tax Division, which Form TD-1 was tled on an agreed and exl ded
bad8, before AprlI30,2W9.
             29.    o
                   T lfustrsb to the Cornrnlaslonthat the assessed values dekermlr ibY
the Commlssh's Tax DlvIsIons personnel (for Corncast's real and personal prop Y Itl

Arkansas for 2I)05,2006,2007, 2008 and 200Q)are clearly enanenus, caprMm and
illegal, an objectivereviewer must comparethe amounts offthe Increases I assessed due
                                                                       n
for Comcasf's real and personal property i Arkansas determined by the T x Divl in's
                                          n                            a

personnel(see paragraph 7, above}, Sorthe years 2005,2008,2007,2008 and 2 C [Le.
                                                                         0

                                         -12-




                                                                00099s
             Ilon, $123 mHbn, $16.5 mllllon, $20.4 m l k n and $2LI mlnon, respsctlvdy], to
             unts of the owratl increase h the assessed values o f a cable teleVrdon sedce
             s real and p m n a l propa@ In Arkansas, as reported by the Director of the
                                                                              -
             slon's Tax DiuNonh her Biennial Rep& fa the GoV8mOrfor2001 2002; 2003       -
                                    -
             105 -2008; and 2007 2008. (Portions of the Tax Dlvlslon Wrector's 2001 -2002;

                        -                  -
             ,004;2005 2006; and 2007 2008 Blennld Reports ta the Governor (Tables for

             t-year cwnpaflscmafthelmtease In assessedvabesforad valorem Eaxpurposes,

             In each repart) are abched hereto as !3hIblt G'I,G Z , C-3 and G4).

                 30.    Such cornparlson (uslng the T x bfvlslons own daf4 suppled to
                                                     a
Arkan! s Governoran an evqutkymrbasfs] MI1eslabllsh thatthe Cornmlssion's Tax
       '
DMsk has erroneously, wpricfously and itlegally "increasef -
                 (j)     BS   compared to t h e %creasem ths total assessed
                                                       in
                         value of       real and p m n a l : property of &I
                                                                          cable
                         televkion operators dolng business wiWn the State of
                         Arkansas, as compared to the t t l assessed value for
                                                       oa
                         the prior years before 2007 and 2008   -
the BSI ssed values of the PetNloner'sreal and personal property as being 96.28% of the
4nma          In assewci values for 2OO5; 150a08% the "Increase"In assessed values for
                                                 of
2000; :           of the "increase* assessed values for200?; and 21.B7% of the "inorease"
                                  In
III   ass1    ed vabes for 2008; of the total "increase" reported by the D I W r of the

                  Tax Dlvislon (Exhibits C-2,03 Wlforthe entire cabletelevlsbn industry
                                               and
                                                                     w
                       bushess within the Slate of Arkansas fortheae t years.

                 31 There 1 attached hereto as ExfilbitD a copy of a summary presenfaWn
                          s
                        the assessed values reported by the Petitbner on 1s Forms TD-9 far

                                               -13-




                                                                     000997
                                                                                              Add. -
    assessed values dreal and personal propertyofaof the cable MeWm opmbrs
                                                   bt
    business inArkansas forthesehrvo years. (See, W lsG2,G3 and C-4). Thlssn
    oomparlson (ExhfbR D)faactually sstabtlshesthat the PeWoner has t have been tr
                                                                     o
    arbitrarily, caprlclouslyand Illegally (and probably, unconstitutionally)by the Cammls
    Tax Divisbn by its hcreashg of the Petttloner's assessed Vailrss reported t
    Commission's Tax DIvIsbn on the Petitioners FwmsTD--I for these four years, ber
8
    the results of such computatfon reflect that the Tax DiMsions 7nmase" In Iha 'assi
    value' of the Petitioner's real and pwsonal property utllked In Arhtms, repw
    96.28%, 150.08%, 23.69% and 21.B7%, respectkJy, of the total "Increases'o thc
                                                                             f
    'assessed VaIUes"of &cable televklon opersbn conduding bustness withh the SI
    Arkansas for those four ad wlcm tax assessment years,

                 32, "he carnpufed percentage Inweases represented by assessed Y
    of real and personalprapertyuDtizedby the Petitionerh Arkansas (forthese two year
                                 the"a-d
    cornparedtuthet~~l*incraases"in                   valud'ofthereal and personal PK

    a f a l l d h televlsfonoperators doing businessIn Aikansasfw those same twa y a
                                                                                  e
    cornpled and reported to the Wedor of the CommfssTon's Tax DlvkTon t the S
                                                                        o
    GDWIIW (ExhlMI(22, E 3 and G4).must lead to the inescapable conclusion:

                 (4)                                             e nl
                        that f "assessed values" of the mal and p m a
                             k
                        ptoperty of some other cable teIevJslan qmators dohg
                        business Mhin the State of Arkansas {fbrthese same

                        t years) were actway "decreased* by the
                        m
                        Cornmissfon'sTax DIvlslon for the years2W6and 2006,
                        or

                                               -14-




                                                                       000998
                             (}
                              2    tha 'increase'   In the total assessed values, as reported
                                   by the Dimtar ofthe Commission's Tax DlvMon to the
                                   3bWs Govmot. (Bhlbits C-I,         G2 G 3 and G4 is
                                    &&   l
                                   & erroneous and misstated),
                            33.    There has been no amendment of the confFonfng a ~ authoria'og
                                                                                     d

          btaM        Ark.CodeAnn. 5 Q 26-2&18O1 thmugh 1805) bythellrltansisGenetat Assembly,
      4   since                              n
                      enactmentufthisstatute I 1976,thatwould p e r m R o t a ~ t h e C o m r r h s s ~ n ' s
          TaXC        ion's personnel fa legallyfnclrrdeIn the compufatlon ofthe Petitioner's ad valorem
          tax a!      isment the value of the Pekltlonefs 'intangible p e m a l property" in Arkansas.
          Theix       ,
                      : such erroneous, capricious and Illegal acllon that has been taken by the
          Comr        ionet's Tax Dlvlslon [Wrth regard to Camas& ad valorem tax assessmentfor its
          real a      )ersonat property, In Arkansas for the years 2005,2006,2007,2008 and 2009)
          must        rrdered rescinded by ths C~rnmisslon.
                            34.   There has been no rule or reguleiiaian adopted by this Comrnlsslon
          (Pmr        to the provisionsofArk CodeAnn. §26-2&1803) bat would permit orauthorize

          the C       nkbn's Tax Division's personnel to legally Include In the cornpubtIon ef the
          Pstilic     's ad valorem fax assessment the value of the PetHoWs "mtangible personal

          Prow        In Arkansas. Therefore, such erroneous, m'pdc?om iIfegaI adIDnsthat has
                                                                      and
          been '      yi   by the Cornmksloner'sTax DivIslon {with regard to Comcasfs ad valomn fax
          asses       miforits realand personal property, h Arkamsforthe years2005,2006,2007,
          2008    I   2008 must be ordered reschded by the Cornmbslon.

                            3 . Acc&h?gIyt for the reasons set forth abw, In this Count Iof the
                             5
          Petii        Ameodfjd PetitTon, Corncastass& that the adons taken by the personnelof
                      's

                                                          4 5-
- .



                                                                                  00099s                   Add, - 5 1 2 .
 the Tax DMsbn to includethemlue oftfte Petinma's 'tntanglble personal props@
 asswsed wba offhe PeaHloner'spropeQt(forihe 2009 ad valor%mtax year}, mud1
 by the Commlssh to be erroneous, illegal and wid and of M efbct, because such i
 are In dtred confiIFtwlth the Goneral Assem's diredive that, after January of 1E

 value 8HdbWle to the %tangible personal propew of buslnesses or indlvkk~ds
 subject to assessment for ad vakrem iaX purposes, far ad vdorern taxes imposed bl
 CbUnIks or schod dlstrlctsWilhin tfia Stab of Arksnsas,

 I                                       COUNT I1
               3 . Altamabety, and onry alternatively, to tha cause of adlms set5
                6
 the Peliiner i Count 1 of thls Pemn, the PeWoner asserts that the Arkansas G
               n
 Assembly has expressIy Indlcated and stated (in Sectlon 1 of Act 108 of 1977) 1
 primary iegislatlve purpose (in passing into law Acf 106 of 1977)was b 8Xmpf
 January 7,1976) all inbngfble personal property loafed withhthe State ofhkansa
 all ad uakrern taxes levied by muntks, &lea and school dlslrlcts. (A copy ofAct
       i attached to thls Amended Comphlnt as Exhlbit B.
       s                                               )
              3.
               7     In addition, in Sedion 4 of Act 106 of 4977, h a General Ass
 expressly stated that part of Is legislative intent In adopting Act 106 o 1977 Jnb f
                                t                                         f         a
-10 fhe effect that the enactment of   thls statute created a total prphlbitlon agair
 exemption from, the hpoMon of ad mlorem taxes by counties, dtlees and school dl
 uponallintangible pemnd propee bcatedW l n the State of Arkansas, and 1hatA

of7977 was to be wntrollfttgof any canffict between the exempton pmVisionsufA4

~ ' H 9 7 and any prevbusty enacted statute (ems. 129 of W27,S 17 [Ark. Codei
          7                                     Act
2826-18oB(b)]and Ad 129 of 1927,s 22 [Ark Code Ann- 5 26-26-l811J).




                                                                    00 IO00
                                                                                        Add. -   513.
                  38.     In f l regard, the General Assembly spsclfhlly set forth in the
                              hs
prwtsl    IS of Sectlon 4 of Act   10s of 1977, that-
                  All laws and parts o laws in oanNctwitfithis Act, fo the exlent
                                      f
                  of such conflict, are hereby repealed.
                  39.   The adbns [wmplahed of by the Petittoner) carrled out by the Tax
Dlvisic   5 personnel,    I inchdingthevalue o the Pdbnw's"Manglblepersonal properif
                          n                   f
i the a ~ ~ value datermlned (forall of the Petitioner's real and persoha1 pmperty
n            ~ e d

locate TArkansas) bythesepamnneIoftheTaxDMsfm{forad valoremWassmssment
purp0:    2,   for the 2009 ad valorem €axyear) are Rlegal, arbtrary and capridous adions
taken     these Tax Division personnel without any statutorybasts or authom.
                  4 . Thereforethese challenged azfions taken by theTax Division personnel
                   0
(In ass sing a value fora8 personalpropem of the Petifionw, forthe 2009 ad valorem tax

asses: ent year) must he held to be emeous, null and vold, with ihts disputed and

imPW      '    assessment of the Petittoner's personal property being rarnanded to the Tax
DMsh Mh Instructions as to howtheTax Mvlslon should pperiyassess the Petltloner's
pem0r     prwperty for the 21109 ad valorem tax year.
                  41. This Issue regardhngthe 1977 repeal of the confnellng pmvIslons d A c t
129 of    177, § § I 7 and 22 {by the pmvldons ofQ 4 of Act ?OS o 3977) was not an issue
                                                                 f
that WS raised by the corporate taxpayers, or an issue that was cansldered or ruled upon
by the rkansas Supreme CQUT~Is declsbn in the case styled !ak
                          In t                             &r                  G
                                                                               -
G!Um ' a n v . l bllcS i eo n
                  s g                                    ,342 Ark. 581,29 S,W. 3d 730 (Ark.

2000).

                  42. Acmrdlngly, forthe reaaons wt forth above, akmatlvely, in Count II,
o the
 f        atlflunsfs Amended Petitlon, Corncast assea #at the adons taken by the




                                                                                                Add. - 514
    personnel of the Tax Division to fncludathe value of the PetbW's 'infangible pi
    prcperfy"in the assessed value of #e Fettkner's property(forfhe2009ad valorernta;

    musk be held by ihe CommIsbn to be emms,ilfegal and vdd and of nu e m , b
                                                                            t
    such actions are not based upon anys$tutorfly created authmilypnted to h T a x C
    by the Arkansas General Assembly, slncs tho provlslons of Section 4 of Act ?OS a
    repealed altof tho prwIsIonsofAct 129 of1929thatwereIn rnnflictwfththeprwJslon!
    106 o 1977 @speciallythe provlslons of S~Etions and 22 o Act 129 of 1827,
         f                                        17       f
.   provisions are mlled upon by the personnel of the Tax Division) In makhg the chal

    assessment agalnst the Petitioner forthe 2008 ad valorem tax year.

                                             COUNT HI
                  4 . Alterna~ivdy, only alternatively, 10 the cause of actbns set fi
                   3              and
    the Petitioner In Count I of this Petillon, the Petitioner asserts that, as described ab

    paragraphs 0, IO and 13 of t I Petith, Comcest Cable Corporatlm of UtHe Roc
                               hs
    operates a business that dissernlnates news, Inhrmatlon, enterlalnment and op'
    Thus, the business opemed by the Pethner Is I d b c t and indimctcompsWcmw
                                                 n
    ownm of bushes= dissednatingthe same type ofnews, Infcrmatlon, enlertainrne
    ophlons, I,& the pubilshersof newspapers and magazines and the opretors o tek
                                                                             f
    and tadlo broad o s t faciliks, all conducting business wlthln the State of A r k a m
                  44. The PetltIonsr (and all drnilarty situated owners and operatarsoi
    television systems pmvldhg cable television senrlces to subspibwcustomers re
    Mhln the State of Arkansas) am not In ether d b c t or Indirectcompetith with any
                                                             .   a



    sixteen (16) publicutilltyor common carrlerbushewes expresslysetforth by the Ark

    General Assembly In Ark Code Ann. 8 26-26-7 601, to wk




                                                -18-




                                                                                               Add. - 515
Tiue 2
Subch

26-26-
Fortht
Coop1
the bu!




          Opeiafhg wWn, Into, from, or through thlsstate, a railroad,a u t h o m
                                    shall be deemedta ba a mamad cornpanx
          by the laws of this statet.




      I   Conveyingwithin, Into, from, orthrough thls state or any part thereof,
          money, merchandise, or effeds of any Wnd by e x p ~ s s oontmk
                                                                   or
          with any railroad or stSamboat company, or the rnanagars, lessees,
          agents, M receivers tt.leFeof, not fncludhg raifroads CT steamboats
          engaged h the ordlnawbnsportatfonof mmhndise or property in
          thls state, shal be deemed ta be an express company;

      I                            r,
          Operatlngwithin, Into,hn orthmugh this state, steeplng cars, dining
          cars, palace cars, ar parlor cars, shall be deemed to be a sleeplng car
          mmpany;
          Inter-county Eransportrng for Mre withln;Into, from, or fhrough fhls
          state, passengers 3nd property by motor vehicle aver the publh
          hTghways of this state, except taxicab companlss, shall be deemed to
          be an hter-counlybus llne company;

          Inter-county transporting for hlrewithifi, Into, from, through, or amsa
          tbls State, property by rnoforvehlde overthe pubnc hlghways at this
          state, or transporting for hire by rnotorvehkk propwty overthe pubk
          hlghways of this stale, though neither loadlng nor unloadhg the
          property withrn the State ofArkansas, shall be deemed to be an Inter-
          county m f o r frdght mnSer company;




                                                                00 IO03
                                                                                    Add. -5f 6
             Tmnsportlng for hire wlthln, infn, fmm, through, or over fi dab, by
                                                                       fb
             regulated airlines passengers orproperty, shaa be deemed to be an
             drllne company;

             Pannitting passage or o comluctIng ar tiansporting passengers or
                                    f
             property a c m anywaterwaywithhthIs state by means of a bridge,
             boat, or otherwater-craft for whlch a toll or- Is charged, shal be
             deemed fo be a few or a toll bridge mmpany;

             Transportlng farhIre property by boat, bage, or otherwater-cmft over
             any wateway whetfier natural or artfflclaLwithin thfs state, shall be
             deemed to be a watertransportation company;

             PerrnlHing passage o w or of conducting ortmnsprtlng passengers
             or property over any mad In this state for the use of whtch a toll is
             taken, shall be deemed t be a4011road company;
                                    o

             Tmnsrniffing wlfhin, I t o , from, qr through thk state, telsgraphlc
             messages, shall be deemed to be a telegraph company;

             TmnsmMng for hireWhin, Into, from, orthroughthi state, felephonlc
             messages, shall be deemed to be a telephone company;

             Generating, condudlng, or distributingelectricpowerwihln, Into, fmm
             or through thls s4ate, far the purpose of supplying t u€llttles male
                                                                 o         for
             or to the pubk eleddclty for light, heat, or power purposes, shall be
             deemed to be an electric power company;

            Condudhg or dlsMbutlng artifIda1or natural gas WitHn, Into, from, or
            thmuuh thh state, pipe or lubhg for resale to the publicfw Ilght, heat,
            or powerpurp~ses, be deemed t be a gas company;
                               shall              o

            Conducffngordistn'butingwaterwithin, info, from, orthraughthis state,
            through pipe ortublng to the publlc, shall be deemed to be a Water
            Wornpay. (Act 129 Of 7927,s 1) 3.
            45.    The ad mImm taxes imposed In Arkansas by cities, countk            nd
schod dstrlcfs are taxes of 'general applcabltity: not %p&d taxes" imposed far SI la1
purposes (e.g. m&rfwl taxes}.
            46, fhe Congress has expressly provided In 47 U.S,C. Q 542(g)(A)(:        EtS


                                          2-
                                         -0




                                                                   00 IO04
                                                                                            Add. -   517.
                                                                         cannot
l Cable Television Policy Act of 1984) that taxes of"general8ppllcabllity"
e
sed upon cable television system oparators In an 'unduly discriminatory" manner.
afute, the Congress stated, as follows:
       {g) "Fmnchisef e ~defined, For the purposes afthis sedbn:
                         *
              ( ]the term Vanchlse fea' includes any tax, fee, o
               I                                                r
                    assessheptofanyktndImposed byafmnchtslng
                    authority or othergwemmentalentftyon a cable
                    operator or cable subscriber, or both. solely
                    became of their s€atosas such;

              (2) the fern *h-anchIsefee" does not include   -
              (A)   any tax, fee, o r assessment of general
                    apphabllky (Including any such tax, fee, or
                    assessment imposed on both m l s 8nd cable
                                                     te
                    operatorsor fhek sewtces but not Including a tax,
                    fee, orasssssment Wlch Is undulydlscrlmlnafary
                                    operabrs or cable subscribers):
                    against c a b l ~
                    [Emphads added]

       47.   Because of the acUons taken by the personnel of Ihe Tax Division, in
emneously and CaprldousIy attempting to include the vafuue of the 7rhnglbfe
    pmpertg of the Petiffmet (and the mtangibb personal property' of all other
sltuafedoperators o cabletefevfsbnsystems within the State of Arkansas) in the
                  f
                                                                a
zuch properly offhese businesstaxpayersthat Is assessed by the T x D M s b far
m
r tax purposes (where these uassessed values"are used by d e s , courrtlesand
strfcts in IeVying ad valorem taxes upon the Petitioner(and other Shdarly SrtUated

5   of cable television systems wjhln the State of Arkansas)), c3uaea such ad
bxesfo be Imposed in nn 'unduly discdrnlnafay"manner against cabfs televlsbn
lperators by these cltbs, countles and school dlstrhts.
       4 . Thlr; "unduly discriminatory" imposlffm of Arkansas' ad wlorern lams
        8
'1ibls bhncs, because the personal property used by newspapers, magsrrlnes,


                                   -21-




                                                           00 I005
                                                                                     Add.- 518
broadcast radfo and broadcast televrskn operators In the conduct af their resp
businesses (all being businesses operated withln h e State of Arkansas) Wnl not ha!
Wue of these other competfng businesses' 'Intangibk persona1 propew induded
ad valoremtax assessments of these otherbuslnesses,as delemlnedfor these corn1
bushessea by the Assessors of all 75of Arkansas' counties. Themfore. no ad M
taxes will be Imposed upon the personal propertlesofthese compehg businesses,
same manneras these same ad valorem taxes will be Imposed uponthe personal pn

of the Petitioners (and all other drnllarly sltuated cable televlslon system   ope^

because of Ihe adons of the T x Didslon's personnel that ars behg chalkaged i
                             a
administrative proceeding. Indead, these ad valorem taxes (Le. taxes of gt
applicability in Arkansas) will be Imposed upon the Petitioner and other cable teb
syslem O P B E ~ E In Arkansas In an "unduly discriminatmy" manner, which discrimit

imposition is prohibited by the above-clted and quoted provisions of 47 U,S

542Cg)PXA).
              49.      SIm the pmlskns of the Cable Television Policy Act o f 1f
                                                                               9l
               -
USC. Q 5 521 559) were Intended by Congress io be pre-emptive of the mnflrctlng
ofths varioussbtes, by the enactment of&e provMonso 4 U.S.C. Q 556(c], which
                                                   f7
as foltows:
              5 556,    Coordination d Federal, state, and local authority
                                   *           &



              (e) Preemption. Exceptas pmlded i 47 U.S.C. 5 557, any
                                                     n
              provision of law ~f any Stale,gollthl subdlvkfon, or agency
              thereof, or franchlslng authority, or any prwIslan of any
              francble granted by such authority, whlch is InconsMent with
              M s Act [47 U S C §§ 151 et seq-Jshall b~deemed to be
                             ...
              preempted and superseded.




                                                                 00 f 006
                                                                                      Add. -   519.
                                                                                 Of

sAmended PetMon, Cancast asserts thattheactionstah byfhepemnnel
 don to Include the vaIue offhs Petitioner's 'intangible personal property"In
value of the Pelltbner's property (forthe 2009 sd valorem tax year), must be
  mlsslon to be erronemus, Itlegal, vold and ofm effect,because such actform
  ision personnd caused fhe ad V 8 l O m 1 taxes imposed upon Ihe Petltloner's
      by citles, wuntles and school dlstdcts {inwh'kb the Petltloner transacts
      bsalp1lon bushess) t be Imposed sgalnst tile Petttloner (and all other
                         o
       ble television operators oonductlng budnnesswrthlnthe Stah of Arkansas)
           #wilymanner, thus violaflngthe express and pre-arnpffve provisions
            (A) of the Cable Televldon Policy A d of 1984.

                            COUNT IV

51. The Petltloner, by the assertion of bls cause ofactIon in Count 1 ofthis
                                                                     V
              Valorern T x Assessment, does nof, In any way, recognb or
                        a
              vallddity 10 the acHoons of the personnel of the Commlsdon's Tax
               assessed value of the Petitlonetsreal and personat property In
               $28.0 millfon for the 2009 tax year.

62.    However, altematlvely, and pnlvr altematkrely, to the causes of acljon
                In Courrts, I, 11, and 111 of thls Petltlon, Iffhe Commisdon
                 net of Its Tax Dlvlslon properly hctuded the value of the
                 al prnpew inthe assessed value of all of the PeMonet's rea1
                  n ~ a 5 the 200g ad valorem tax year, then the
                        for                                           Petitioner
                   d by the personnel of the hmmbsion's Tax Mvision In
                     nets real and pemnal pmpwty In Arkansas (fhatwuld

                               -23-
indude thevdue of the Patltionds 'intangible personal prupew) forthe ZOO3ad Vz
€ax assesmefityearwas emneousandresulted in a dekmrlnatEon of any assessed

that Is too hlgh, and which assessed value should be reduced.
              53. The Pstllionerdoesnot, in any way, concede that fhe meithod ac

and utilized by the pemnnel of the Commislon'sTax Divisim,b determine the ass
vaIue o d of tha PeWoner's real m d personal property In Arkansas for the
       f I
assessment year, has any valldNy.
              5.
               4    HOW8Ver,dknBh,        and only altemdvely, the PeKtionerasser

the melhod utlllzed @ythe personnelof the Commlsslon'sT x DMslon] Indetermhl
                                                       a
assessed value of the PeWoner's real and personal pmporty I Arkansas for the
                                                          n
assessment year, was Incorrectly and erroneously utllW by the personnel            i

CornmlsslanfsT x Division In d&rminlng that assessed value ofthe Petitioner's re
              a
personal property in Arkansas for the 2009 ad vabrem tax year.
              55.   The w m t use of a proper valuation method by the PetMor
debrmlnsthe value of all of the Petttloner's mal and persond pmperlyin Arkansas 1
2009 ad valorem tax assessment year, woad result in a value of only $12mabn [E
the value of Intangible property of Fetbner fsconddered) to be Included, as r p r
                                                                             e of
fhe k mTD-1 fled by #e Patfkner With the Cnmrnlsslon's Tax DivIdon forthe 20
valorem tax year, on or before April 30,n]o8.
                         RUUNGS SOUGHT BY PETITIONER

             56.     There hes been no amendment of the rndrolling and authc

statutes (Ark. W e A n n . 5 § B-ZB-18OI through 1803) by theArkansas GeneralAssE
shcethe enactment ofthrs statute ~n
                                  1975, tttatwould pennltorauthodze the CommFs
Tax Dvisbn's personnel to legally Include in the computation of the Petltioner'sadva




                                                                  00 I 0 0 8
                                                                                       Add. -   521
 nt the value ofthe PeWonw's "intangible personal propew In Arkarrsas.
  h erroneous, caprfclous and illegal action that has been taken by the
   Tax DhrJsIon {with regardb Corncast3ad v a I o m tax assessmentfor Its

    I property, J AFkansas for the yean 2005,2008,2007,2008 and 2009)
                n
       clnded by the Ccmmlsslun.
67. There has been no rule or mgdlatlort adopted by this Commission
       isionsof Ark. Code Ann. § 20-28-1 803)thatwouM permlt or aut h o h
        X   DMsPon4 personnel to Iegelly Include In the compldation of the
            m
            t assessment the value of the PetltIoner's 'htangfble personal
             erefore, such erroneous, cap~Ichua Illegal actionsthat have
                                              and

             ssianer'sT x DMslon (wiUI regardto Corncasfs XI valorem tax
                       a
                                   n
               personal property, I Arkansas for both the years 2006,2007,

                ered rescindedby Che Commission.
58. Therefore, the PetTtlonersubmiCsthatfheactlonstaken bythepersonnel

                   n L . to include In the assessed value of Commsfs mal
                    , e
                                 -
                    as [for 2005 2009) the ~ I u of Corncast's Trihgibfe
                                                 e
                     m tax assessment purposes),      are actions expressly
                     Code Ann. g2&3-SoZ,     Such erroneous,caprM~us
                                                                   and

                      thi Commission; as part of the Commission's mvlew
Petltlon in t i proceeding, for all of ihe factual and legal reasons set forth
             hs


59. AlternafIvdy, and onty alternatively, to the causes of action asserted by

                      f thIs Amended Pefltion,ihe PetitIonerassertsh Count
                         personnet of the ComrnbIon's Tax Division have

                             -25-




                                                     00 I O U 9
                                                                                 Add. -   z2   .
                            a
lmpropedyand emneotlslyutlll~ methodofdetermhhgthe assessed value of a fthe
htltloner's rea1 and personal praperty InArkansas {mullinginan assessed vafus fi    wch
property far the 2009 assessment year), even I f the value of the Petitloner's InE llble

property in Arkansas I utllhd In the oornputatlonalbases for tho d e h h ~ s t l o n such
                     s                                                             I

assessed:value forthe 2009 ad v d o m tax year.

             WHER€FORE, the Petitioner prays that the Commission mil determi that
the actlons faken bythe persannel of the Commission'sTax Dlvlslan, Le., t Includt
                                                                        o           Ithe

assessed value of Cumcasrs personal property used to conducl fhe PeWoner': abte

televlsfon business in Arkamas {forfhe2005,2006,2007,2008 and 2009 ad valor:        I tax

years) the value of Corncash 'Intangible personalproperty"{forad valorem fax asses lent

purposes), are actions
                    exprssslyprohibited bythe pmvklons of Ark. CodeAnn.
                    Q 26-3502;
                   that ham no statutory bade or authoni because the
                   provisions of Section 4 of Act 108 of 1977repealed the
                   express proviskns ofAct 129 o f 1927(Sections l 7 and
                   22)thatate reIied upon by the "ax DMsfon pemnne!In
                   making th8 queslbned and chalIenged assessment of
                   the Petitioner's real and personal property for the 2007
                   ad vatwem tax assessment year;
                   that are prohlbfted by the pre-emptive p r o v k n s of 47
                   U.S.C. 5 542(g)(2xA), because these actlons of the Tax
                   ~idslah  personnel cause the ad yalDrem taxes imposed
                   by desB,  cnunbs and school dlsbidsto be assessed in
                   an undulydiscrknlnatorymanneraga~~nst~bletalevision
                   operators, and not against the "intangible petsonal
                   propewofnewspapnrs,rnagmhes, radk broadcasters
                   and televfsbn broadcasters{agafnsfwhichthe Petitloner
                   and ofher dmlady situated cable television operators
                   compete f the conduct of thelr cable teIevIslon
                              n
                   subscdptlonsewkebusinesses}Inthe conduetofmese
                   respective businesseswlthlnthe State of Arkansas; and
                   that the personnel of the Commblon's T x DMbion
                                                         a
                   ham utrllzed en Improper and emneous method of




                                                                 uu1010
                                                                                            Add. -   523
             determlnlng the assessed value of Corncast's real and
             personalpropertyforthe 2009ad wfomm taxyear, eve0
             if the value of ttw Petitlands "intangible personal
             property is included In detmlning the assessed wkre
             of the Petitloner's property for the 2009 ad vabrem tax
             year.

#merpraysthat such emmous,caprsctotw and iflegaI actions ufthe T x Olvislon
                                                                a
31 must   be ordered reversed by thls Com*sslon,as part of the Cornmlssion's
'Corncast's PetltlonInthis pracwhg, far all of thefactual and legal masons set




                                         (501) 374-9010 Telephone
                                         (601) 374-8510 Facslrnlle
                                         E-mall: _ p y e b h a n ds
                                                                  -
                                                                  a

                                         A7TOFUJEY FUR PETlllONER




                                  -27-




                                                                                 Add.   524
    I




a




a
COh
                                                      PLAINTlFF
V.                          Docket No. 2ODB-2
bW \ BUCKNER,In bar ofhlsl capacity as the
cou ITreasurer o Pukki County, Arkam;rs;
                  f
JAN 'TROUTMAHWARD, In hrtroiWIn1cap-
as # Comfy AssEsor of PulasW Counfy,
Arkr iasi and PULASW COUMW, ARKANSAS;
ROE MCGiLL, AcUng Superintendent o the   f
Pul; 3 %CountySprtctal SchmI bisb-e the
WL IKI COUNTY SPECIAL DISTMCT; GARY
FLE :HER, Mayor, CHy of Jacksonviile,
Arki        and CITY OF JACKSONVILLE,
ART &AS[all in their offldal capacities, and as
     entatlwes of a Defmdant-class of s l n t l ~
sifu; id cowtIes, cities and school districts,
whe In ad valoremtaxes am assessedand M e d
UP0 fbe real and persona1 propertjr of eabk
&I@' operators for fhs support of such
      Ion
mu1 os,Glues and school disftscb)




                                                    OUI013
                                                                  Add. -   526
    .-
    .,
        I   *   .




                    Eric S T e h Geotgla 8%No. 891831
                          . rs,
                    Suthedand Asbll& Brennm, &P
                    999 P e a e h h Streef, NE
                    AtIanb, Gemkt 30309
                    Telephone: (404) 85S-Bs79
                    Facsimile: (404) 8538808


                    ATTORNEYS FORTH€ PLAINTIFF




                      -2-

I
                                                                 1
                                                        .-


                                           001014
                                                             Add.-   527 .
Add. -   528
                                                                          ARKANSAS




                      SEPAILTE PIJLASKI COUNTY 'IJEF"IlANTS
                        MOTION TO DTSMKS FIXST ATklENDED
                         COMPLAINTFOR 'REFUND OF TAXEX


            Come now the Respondents, Jmet Troutman Ward and Debra Bucher, and

    Pdaski County, Arkansas (referrd to collectively BS "MaskiCountydefend ants'^), b
    and through the Pulaski CountyAttorney's Ofice, and for their Motion to Dismiss thi
I
    action state:

    1.                                                              .
           This Court lacks subject matterjurisdiction. A k R.Civ. P 12(f$(1).
                                                         r
    2.      Pursuant to Ark. R Civ. P f2@)(6), the complaint fils to shte facts upon whi
                                     .
    relief can be granted.

    3.     The County Court correctly ruled that it was without jurisdictiun to hear the c11

    fbr refund claimed by Deftadant. Whm the trial court la& subject-matter jlrrisdictil

    the appellate court also lacks subject-matterjunsdiction."Kuomv Mitchell, 341 Aik
                                                                   .

    716,719,19 S.W.3d 603,60546 (2000).

    4.     pulaski County objects to being designated a class representativefor a Defendr

    class of similarIysituated counties, cities, and school districts whaein ad v d o m tax(

    are assessed and levied upon the red and personal property ofcable television operato
    The Complaint contains no allegations specifyingh m which, if any, other counties it




                                                                                               Ad&-   529
            4


    b



    .--\
‘       i       see1    i.
                       d d The otberpotmtid counties are easily identified and not so numerous as to

                Pra de naming them to this suit The Pulaski County Court’s M ais not pertinent to
                       ier county.   This Court would not have jurisdiction over an appeal fiom any other

                cou V court.

                5.     Respondentsreserve the right to plead fiuther in this matter.

                       WWEREFORE, the Defendant m o w that this cause of action be dismissed, for

                cost   md fbr d other just and proper relief,
                               1
                                                                Respectfdf y submittd,

                                                                            A




                                                                And  1
                                                                AMANDA M.MITCHELL, k k . Bar
                                                                #97010
                                                                PULASKI COUNTYATTORNEY
                                                                201 Sou& Broadway, Suite 401,
                                                                Little Rock, AR 72201
                                                                (501)340-8285




                                                             2



                                                                                        001017                       530
                                                                                                            Add. -
                            CERTIFICATE OF SERVICE

       I#Karfa Burnett, ereby certify that a copy of the foregoinghas been s a v e d 1
certified mail on this    th day of J,w 5               J2010 to:

Eugene G.Sayer, Esq.
              .
Christopher D Brockett, Esq.
HATPIELD & SAYER
401 West Capitol Ave., Suite 502
Little Rock, AR 72201

      rs,
Eric T e h Esq.
Sufherland, Asbill & B m q LLP
999 Peadhtree S t r e NE
Adanta, GA 30309-3996

Robert E. Bamburg, Esq.
Attorney for City of Jacksonville
303 N* James S M
Jacksonville,AR 72076

Jay Bquette, Esq.
Bequette & Silliigsley, P.A.
425 W. Capitol Ave,, Suite 3200
Little Rock, AFt 72201-3469

Kevin M.M e y , Esq.
Paul J, Ward, Esq.
1000 Center Street
P.O. Box 400
Little Rock, AR 72203-0400




                                            3



                                                                    001018
                                                                                         Add. -   531
    CQj    CAST UFXIXTIZEROCK INC.
    VS.                                     CASE NO. 60-CV-10-1473

    SAI ilEl M.BRADSHAW, et aI,                                                 DEF"DANTS




           PARATE PULASKI COUNTY DEFENDANTS' B m P IN SUPPORT OP
           ITION TO DXSMSS FTIRST AMENDED C O M P W T NOR REFWND OF
                                    TAXES       -
           %en reviewing a Motion to Dismiss, the trial court must treat the facts dIegd in
    the E n p h t its true and View them i the light most favorable to the plaintif€ Kine:v.
                                          n
           I
    Whitfizld, 339 A k 176,5 S.W.3d 21 (1999). A trialjudge must look only to the
                    r

    allcgat ons in the compIaint to decide amotion ta dismiss.    rd.
          Ride 1@()
                2)1-        Lack of jurisdiction aver the subject matter

               Tbis COWdoes not have subject matterjurisdiction In Villines v. L e , 321 A k
                                                                                          r
    405,PCZ S.W.2d 233 (I 999, the Supreme Court found that subject matterjurisdictionis

    determ ned from the pleadings. (Citing MCK~MW Citv ofEl D &
                                                 v.          o,                       r
                                                                                 308 Ak 284,

    824 S.W.2d 826 (1 992)),

               ?etitioner alleges that tbiS Court has jtnisdidonplrrsuant to Art. I6,§13 of the

    A r k w s Constitution, ARK. CODE A".5 14-14-1105, ARK. C O D E M . 5 14-23-101

    and AKL CODEA".5 26-35-901. Fht, ARK.CODE ANN. $25-35-901 de& with taxes

    paid on real or personal pmperfy that have been erroneonsly assessed, This action

.

               1
    chalIen es the Assasor's determination of assessed property value and the Treasurm"s




                                                                                                  I
, -t,


        collection of ad valorem taxes asswed, billed to and paid by Corncast. Pursu

        CODE A”. 4 26-24-103,

                       The ATkmas Public Service Commission shall have the full power
               authority i the adminisbationof the tax laws ofthis state to have the exclusi
                         n
               power of original assessment of both red and personal property used in the
               operatingof carrier pipeline, railroad, smtrailroad, express, slqing car,
               intercounty bus h e companies, and all telegraph, telephone, dectdc p
               televisfon, heacing, gas, water, water transportation, toU bridge, or ferry,
               interurban, or other similar companies, associations, or w~rations,      commo
               known ns ufilities, dohg business or owning property in this state.
               ARK.CODE A”. $26-24-103 [emphasis added].
               Additionally, A   k CODE&”. 8 2626-1612 states that it is the duty ofthe T
        Division of the h h a s Pubfic Sa-vicc Commission (hereindim “APSC“) to ascert

        the assessed value ofthe property of any companywhich it is r e q u i d to originally

        assess and, on or before July 15 of each year, certify the asscmntnt to the p

        ofthe respective counties in which the propperty is located or operated. At
        countyofficial shalt enterupon theproperremrd the assessments certiAied, andneith

        the assessor, the mun@equalizationboard, nor the county court has the authority to

        change the assessmeat so catifid,and the taxes shall be extended and oollection mad

        on the assessment so certifiedin likernanneras extmsion and collectionismade i
                                                                                     n
        ofpropertylocally aasmed,’’ The Assessor did not d e t d e the assessed property

        vdue but, as required by Iaw, received and entered the d e d assessm

        a d is not authorized to change the assessment. The Assessor made no mneous

                                       CODEA”. 4 26-35-90 I. ”he
        assessment os referred to i ARK.
                                   n

        based on a certified assessment authorized by the Tax Division of the APSC,not an

        moneous assessment a referred to
                            s                 ARK.ConE ANN. $2&35-9011and does not hav
        thc authority to change the record.



                                                    2
    i
with e assessment madeby the division, may, within ten {IO) days of notification, fe a
                                                                                  23
mt n petition for review of assessment with the appropriate commission. Additionally,
 it

ARK. DE A”. Q 26-25-1610 states that my property owner whomay fed agg6wed at
the a ‘on of the mmjssionmay appeal from that action to the Pulaski County Circuit

Court Although Plaintiff admits m gappeals with the A P S C , no appeal was timely

perfe ted with the Circuit C o d

                                   n
         Plaintiff filed an action i wunty court to order a refund of its taxes for the years
2005, 2006, 2007, and 2008. Plaintiff cited Ark. Code Ann.           8   26-35-901(a) as the

atatut ry authority atlowing for the r e W of persoad property taxes that were

erron usly assessd and paid as defined and described i Ark, Code Ann,
                                                     n                              5 2628-
111(c)    Ark. Code Ana $26-28-1 tl(c) states that the correction of mors s h d apply to

                 actual and obvious errors on the tax book and relatd
                 records, with such errors being restricted to extension
                 errors, erroneous property dmxiptions classifications,
                 or listing, and shall not beutilized to make any change
                 in the valuation of any real or personal property as shown
                 0 1 tax books and related records other than a
                  1 the
                 change in valuationnecessitatedby the cortection of
                 actual and obvious mors as provided in this section.

                  of assessmentswere certifiedby the APSC and merely placed on the fax
                       and, therefore, do not fit the criteria listed under Ark, Code Ann, 0

                         the d a h for refund must be made with thee years from the date
                                   the 2005 claim i c l d y barred. Ark. Code Ann. $26-
                                                  s

35-901

                                             which govems the review and refunds of PSC




                                                                      00 102-1                  Add. - 534
       (d)(l) h the event any company shall not have paid on or before the h a l
       date forpayment of taxes without penalty, all taxes due based upon the
                                                               e
       assessmentrecord on the ~ B Xo b on the h date, h n the companyshall
                                        r              l
       be required to pay, in addition to these taxes and by reason of the
       delinquency, a l l penalties at the time provided by law, together with the
       costs as &dlhave accrued,

       (2)(A) At the time the payment is made, the company shall, in Writing,
       advise the official to whom payment of taxes, penalties, and a s k have
       been paid that a specified amuunt thereof is being paid under protest.

       (s)(i) Upon receipt of the payment and written protat, the colledng
       officialshall cause the specified amount set forth by the company to be
       deposit4 into an Ad Valorem Tax Protest Fund.

       (hiIf ILS a r d t of any find judgment the company shall be entitled to
       n rcfund then the collecting offiehl s h d cause a refund, as
       determined by the ilnaljudgment to be made from the fund; and the
       r e m h h g i m y or the whole if no refund B dae the company shall be
                    f
       distributed for the b e f i t ofthe respective taxingunits entithi
       thereto.

J this case, no &al judgment mtitliigthe Plaintiff to a refund has been entered eh JY
 n                                                                               ii

the PSC or the Circuit Court ofPulaski County, and the county court had no jurisdid         L


to enter one. Since the couaty court was withoutjurisdiction,   this courtdoes not havt
jurisdiction. ‘‘When the trial wurt lach subject-matterjufisdiction, the appellate cou

also lacks subject-rnaftetjurisdiction.”Koonce v,Mitchell, 341 Ark 716,719,19 S.V           d

603,605-06 [2000),

Rule 1())
      2b@-        Failure tu state a daim upon which: reUd can be granted.

       Assuming all of the facts alleged by Petitioners are h e , they have failed to sti       a

claim upon which reIief can be granted against PuI~askiCounty because pursuant to A

CODE A”. Q 26-26-1612 it i the duty of the Tax Division of the APSC to ascertain t
                         s
assessed value ofthe property of any company which it is required to originalty ass=

and, on or before July 15 of each year, certify the assessment to the proper oflicid of




                                                                      00 t 0 2 2
                                                                                                    Add.-   535
tive counties in which the property is located or operated. At that time, the county

                                      certified, andneither the
Ish~enterupoatheproperrecDTdfheassessm~~
 r
D, the county equalizationboard, nor the county court has the authority to
e the assessment so certified. ARK. CODEA”. 826-26-1612         [emphasis added].

The law dearly grants the Tax Division of the PSC the duty of assessingthe
ty i question and denics the Assessor and the County Court the authority to
    n
:the asswsmak     Thaefoxe, the relief requestedby the Plabtiffin the County
   such that it could not be granted by any of the named Defendants i that action
w~ls                                                                 n

idant Bradshaw and ?heArkansasPublic Service Commissicm werc not named in

                   .
unty Court action) Therefore, the county courtp ~ ~ p dismissed h e action.
                                                       dy

Plaintiff chaflenges the method used to assess its property, arguhg that the APSC

.redin “illegalIy and unconstitutiunally”using proceduresand methods (the “so-

- w i t method” of valuation) to determine the ‘‘assessd values” for Corncast’s real

rsonal property for each assessment period Plaintiff furhcr argue3 that the

:at= prepared by APSC reflect such m r s .   Even assuming that Plaintiff’s

mts are mnect, the M S C rather than the County Court is the proper place to

ige the vahations or methodologyused. Ark Code Ann. 5 26-26-1610. PIahtiff

appealing the vduations to the APSC, but did-notlimely perfect an appeal with

Cuit court.

Haintiff claims that this action is one for illegal.exactionpursuant to Ark. Const,

i, 913. Pldntiff alleges that W e arbitrary, capricious, erroneous, illegal and

:titutional actions taken by the assessing personnel of the APSC’s Tax Division in

ining the 5ssessed values” of Corncast’s personal property be declared to


                                       5



                                                               00 i 023
                                                                                       Add.-   536.
-.
 i   aonstitute and illegal exaction,” at least to d~ overstated amounts of the ad val rem

     taxes.” [emphasis added] (Complaint, v4.) “[A] flaw i the assessment or coUectio
                                                          n
     prcdurG no matter how serious frvm the taxpayer’s point ofview, does not makefl

     exaction itselfilhgal.” Schuman, supra, (citing Missom*Pa@ &. Co. v. Fkk, f 81

     Ark. 863,28S W 2 d 333 (1930) and Beard Y, WtIcochon, 184 Ark.           349,42 S.W.2t     7

     (1931)); see also, Bwhr Y. Frank, Ark,589,939 S.W.2d 837 (1997);Pockrus Y,
                                      327
     Beih Vutu W a g e Property OwnersAss ’ . supra;Mlkr L. Leathers, 3 12Ark. SZZ,
                                           n,

     S.W.2d 421 ( 9 3 ; FeathwIite,supra; Scott County, supra; and McIntosh v.
                 19)

     Souihwesrm TmkSalaF, 304 k k 224,800 S.W.2d 421 (1990).

            T state a cause ofaction for an illegal exaction, PIahtiKs must assert that the
             o
     itself is illegal. Tbe Supreme Court has “‘strictly adhered to the rulethat, ifthe taxes

     complained of are not themselves illegal, a suit far illegal exaction will not fie,’ and

     ‘ a flaw in the assessment or d e c t i o n procedure, no matterhow serious from the

     taxpayer’s pint of view, does not make the exaction itself illegd”’ Hambuy v,

     Wd?iams, --S.W.3d        --,2008 WL2205907 (Ark) May 29,2008 (NO. 07-1026)
     (citing Podbus v. Belh Flta Prop, Owners’Assac., 31 6 A k 468,372S.W.2d 416
                                                            r
     (1994)). As in Ha+       and Pocknrs, the taxes that are the subject ofthe action are a(

     valoran taxes. “Ad valorem taxes are legd i this state.” Rambuy, supra. “If the t
                                               n                                      a

     complained ofarc not themselves NegaI, a suit for illegal exaction will not he.” Id.

     Pfaintiffs do not chdlengc the validity of the ad valorem taxes. Plaintiffs simply
     challenge method used for valuing the property. Arkansas law does not recognize thi:

     an illegal exaction.cause of action.




                                                   6




                                                                                                    Add.-   537
        WHEREFORE, theDefendant moves that this muse of actionbe dismissed, for

Cost:   wd for all other just and proper relief.




                                                                                     2

                                                          % W E = , Ark. Bar#94130
                                                             I

                                                   AMANDAM MITCHELL, Ark. Bar
                                                   #970f0
                                                   FULASKI COUNTY ATTORNEY
                                                   201 South Broadway, Suite 400
                                                   Little Rock, AR 72201
                                                   (501)340-8285




                              CERTlFICATE OF SERVICE

      I, Karla Burnett, hereby certify that a copy of the foregoing has    served
certi dmdonthis         1.tthdayof-                     ,ZOlOto;

Eugt : .Sayer, Esq.
        G
chri. ipher D.Brock* Esq.
HA1 [ELD SAYER
            &
401 - est Capitol Ave, Suite 502
Litlfl lo& AR 72201

Eric -e&, Esq.
suth land, Asbill BL B E M LLP
                           ~
999 : acbtree Street, NE
Ath     I GA 30309-3996
        ,

ROh B.Barnburg, Esq.           '


Attoi :y for City of Jacksonvilte
303 I James street
Jack! nViIIe,AR 72076

Jay Ipette, Esq.
Beql te & Bilhgdey, P A

                                               7




                                                                    00 f 025
                                                                                         Add. -538
    J




8




    Add. - 539
         1




..
     i
                              IN TNECIRCUIT COURT OF P W K I COUNTY, ARKANSAS
                                                    SECOND DMSION


             COMCA       r OF mu ROCK, INC.
                                  .   .
             V.                                     NO.60-CV-10-1473

             S W I ,BBAQSHAW, i her oflicial capacityas
                                       n
             the D i m : fthe Tax Division ofthe
                        o
                         ublic Service Commission;
             ARKAN! is PUBLTC SERVTCE COMMISSIOfi;
             DEBRA: JCKNER, in her official capacity as the
             ComtyT asurerofPuIasECounty,Arlransas;
             JANIT 7 O U " WARD, in her oficid capacity
             as the c o  I& Assessor ofPulaski County, Arkmas;
             m d P W IKICOUNTY,ARKANSAS;
                          L
             R03 Mc( L , Acting Sqainteodent of the
             PUlaskiC    mty Special School District; the
             PULASX 2 O u N m SPECLAL SCHOOL DISTRIW,
             GARYFI TCHER, Mayor, Ci@ of Jacksonville, Arkansas;
                          F
             and ClTy I JACKSONWILE, ARKANSAS;                    *

             (all in the oE&al capacities, and as representatives of B
             Defmdm :lass of similarly situated Colmties, cities and
             school dit icts, wherein ad valorem taxa are assessd,and
             w e d up the real and pasod property of d l e television
                                               - - -
             OperatOrS r the suppoiof such Counties, cities and school districts),           DEFE"TS

                           ANSWER OF S W A MTE DEPENDANTS RUB McGKL A N D
                           THE PulLASKE COUNTY SPECIAL SCHOOLDISTRKf TO
                    a    INTIFFS.FIRSTAMENDED COMPLAINT FOR         OFTAXES    ~~
                                                                                                         '




                    sc   u+a@Defendants,Rob McGill and PulriSki CountyS p ' d School District {colfective~y

             "PCSSD" by their attorneys,Bequette & Bjhgley, P, for their Answer to the P1aiPtifpsFrt
                                                              A,,                                 is
             Amended ImplSint, allege and state:

                                           that Plaintiff sFirst Amended Complaint seeks declaratoryreliefand

                                            Galorem t u e a paid by Corncast for the 2OO5,2OO6,200?, 2008 snd

                                            PCSSD otherwise denies the allegationsset forth in paragraph 1 of

             the Sirst q e n d e d Complaint and                           therein,




                                                                                      nn      n Y
                                                                                           I n C
12 of the First Amended Complaint.
                                                                                          I




Comptaint.




       6.     PCSSD admitsthe existenceof h e legislative enactmentreferred to i paragraph 19
                                                                               n
                                                                                          t
of the First Amended Complaint, which speaks for itself. PCSSD otherwise denies the allegations

set forth in pamgtaph I9 of the First Amended Complaint.                                      I
                                                                                              b


       7.     PCSSD i without m c i e n t information to admit or deny the allegationsset forth i
                    s                                                                            n
                                                                                              !
paragraphs 2 4 2 1,22 and 23 of the First Amended Complaint, and therefore denies same.

       8,     PCSSD'ahits the existenceofthe documentsrefeiredto in p x a p p h24 of&e First
                                                                                              t
Amended Complaint,whichspeakfortbemselves.PCSSD otherwisedenies the ahgations &forth

                      &
in paagkph 24 of the F Amended Complaint.
                                                                                              I
       9*     PCSSD is without suflicient informationto admit or deny the allegationsset for&in

paragraphs 25,26 and 27 of the Fht'Amended Complaint, and therefore denies same,

       IO.                                                  toinparagraph28oftheFirst
              PCSSD admitsthe existenceofthedocuments~eferred
                                                                                                  I
Amended Cornplainf, which speak farthemsehes. PCSSD otherwisedeniesthe allegationssdt f r h
                                                                                       ot




paragraph29 offheFirstAmended Coqlaint, and therefore denim same.

                                              -2-




                                                                       uu t-1128                      Add.-   1   41
           16.    PCSSD.acMitsthe existence of the documentsreferred to in paragraph37of the First




           17,    PCSSD is without s ~ c i e ninformationto admit or deny the allegatiomset forth in
                                               t

    paragraph 38 of the F h t Amended Complaint, and therefore denies same,

I   .
           18.    PCSSD iswiUmutsuficientinformationtoadmit or deny theallegations set forthin




                                                 -3-




                                                                           00 IO39                     Add.-   542
       2 1.     PCSSD is without sufficientinformation to admit or deny

paragraph 42 of the First Amended Complaint, and therefore dmi? sme.

       22.
                                                                                        r
                Exceptwhere previouslyadmittedberein, PCSSD denies the atlegations set orth in

pmgraph 43 of the First Amended Complaint.

       2.
        3       FCSSDdenies tbeal~egalionsset                     oftheFkAmended
                                            forthinpa~agaphs44and45
                                                                                        I
Complaint.
                                                                                        I
       24,
                                                                                        I -
                PCSSDadmitsthe existenceofthelegislativeenactmentsreferredto inparagraphs46
and 47 ofthe First Amended Complaint,which speak for &emseIves, PCSSD otheMrise deniesthe
                                                                                        I
allegations set forth in paragraphs 46 and 47 ofthe First Amended Complaint

       25.      PCSSD denies the degations set fottb in parapph 48 of the First Amended
                                                                                        I
complaint.
                                                                                        I

       26.      PCSSD admitsthe existenceof the IegisIativeenactment referredto inp&h           49
                                                                                 +          I
of the First Amended Complaint, which speaks for itself, PCSSD o t h e h denies the allegations

set fbrth in paragraph 49 of the First Amended Complaint.

       27.
                                                                                      -1
                PCSSDis Without SUaCient informalionto admit or deny the degations set forth i
                                                                                             n

paragraph 50 ofthe Fmt Amended-Complaint,and thereforedenies same.

       28.      PCSSD admits the existence ofthe legislativeenactment refkmd t inparqgph 51
                                                                              o

of the First Amended Complaint, which speaks for itself, PCSSD otherwise.deniesthe dteiations

set forth in paragraph 5. of the First Amended Complaint.
                        1
                                                                                        1
       29.     PCSSD deniestheallegationsset foah inparagiaphs52 and 53 oftheFi:irstAdended
Complaint.                                                                              I

                                                                                        i
       30.    . PCSSD &its       the existence of the legislative enactments referred- to i
                                                                                          n
paragraphs54,55,56and57oftbeFirstAmendedComplaint,wbichspeakforthemselves.P SSD                       '




                                              4-




                                                                          0 0 1 030                  Add.-   ' 43
I   -
    i
        otherwise denies the allegations set forth i paragraphs 54,55,56 and 57 bf the First Amend&
                                                    n
        Complain

                        PCSSD i witbout sufiicientinformationto admitor deny the ailegations set forthin
                               s

                     58,59,60,- 61,62,63,64,65 and 66 of the First Amend& CoipIaint, and therefore

        denk d e .
                 I
              32,      Except where previously admittedherein, PCSSD denies the allegationsset forth i
                                                                                                     n

        pangraph 67 of the First Amended Complaint.
              33,      PCSSD demiesfhe allegationsset forth inparagrapbs68and 69 of the FirstAmended




              37.      Except where previowlyadmitted herein, PCSSDdenies the allegationsset forth in




                                                                              001031                    Add.-   544
I'




..


                    cross-ciaim,and/or third party claim pending discovery in this Mgation.

                                                      APFIRMATMZDEFENSES                       ..




                            45. +. PCSSD affirmrttivefy states that PhintiEs claims for equitable relief are b+xd as




                    ingoodfaith.    *




                            47.     PCSSD asserts that it acted reasonably and in compliiance w#h the law at all times

                    relevant hereto.

                            48.     PCSSD!a&mxtively pleads the afGrmative defense oflaches,




     . .       -.   pririciple of estoppel.

                            5 1.    PCSSD afErmativelystates that PIainWs F h t Amended Complaint failsto state a

           .        cIaim upon which reljeFmay l~ gmnted.                                                                :..
       5;     The claimsforequitable,injunctive,and declaratoryreliefarebarred becausePlaintiff

hasand                      a.
            late remedy at l w

       51     PCSSD affirraativelyp I ~ all affirmative defenses permitted under the Arkansas
                                        d
                .   ’   I



Rules of I i l Pmedure.

       W ZREFO&,based uponthe foregoing, SeparateZ)efendants,RobMcGi~andthePulaski
county SI :d S c h d District, pray that Plaintiffs Complaint and First Amended Complaint be
           i
dismiss&    td that it &e nofhing thereby; for their costs mdattorney’s fees incurred herein; and for

all othera roprhtexelieftowhich SeparateDefendants Rob McGill andthe Puhski CountySpecid

School D i c t may be entitled.

                                             Respectfdty submitted,

                                             BEQUETTE &BILUNGSLEY, P A
                                             425 West Capitol Avenue, Suite 3200
                                             Little RQ&, AR 72201-3469
                                             Phone: (501) 374-1 107
                                             Fax: 15011374-5092



                                                     J a y Bequette, #87012




                                               -7-




                                                                          00 I 0 3 3
                                CERTWICATE OF SERVICE
                                              h
       I, Keith Biliin&ey, do hereby certify t & B h e and currect copy of the foregoingi ?assent
via U S Mail, postage prepaid, to the following on this 3 4&day of h e , 2010
     .,
Eugene G. Sayre, Esq;
ChistupherD Brockett, E.sq.
             .
                                                   Rob& B. B a ~ h ~ g ,w.
                                                   Attorney for City of Jacksdnville     '


HadielddtSrtyre     .                              303 N.fames Street                    I
401. West Capit01Avenue, Suite 502                 P,O. Box 5913
IjttleRwk, AR 72201                                9acksonville, AR 72078

EricTresh,Esq.                                          .
                                                   Pad J Ward, Esq.
Sufherland; Asbill & Brennan, L D                  KiYh Lemley., Esq.
999 Fedtree Street, NE                             Arlransas Public Service Commission
Atlanta, CIA 30309-3996                            1OOocenterstreet
                                                   P.O. Box 400
Karla Moom Burnett, Esq, .                         Lit& Rodk, AR 72203-0400
PuIaski ComtyAttomy
400 County AdmiistrationBuilding
201 S. Broadway
LittIeRock, AR 72201




                                             -8-     ,




                                                                                               Add*-   547
       -
. -.
   .
   i
                               IN               CIRCUIT COURT OF P’ULASKI COUNTY,ARKANSAS
                                            i             SECOND DMSION
                                                           I   .




               COMCA      rO    F L ~ ROCK,MC.
                                       E                                                           PIAlNTW
                                    .       .
               V.                                         NO.60-CV-10-1473

               sARi€?:
               theDk
               k?ansas
               ARKAN!
               DEBRA. 1
               ComtyT
               JANET ‘
                     I
                as the Coi
           I    andPULi
                ROB MC  c                                                             - 0W
                                                                                  W1 - 3 d4B W 68 0
                                                                                                 lf M 2-6
               Pulaski c rnty Special School District; the                        C CS F LITTLE ROCK V SllR 3 Paps
                                                                                   M CTI
               PULASK ZOUNTY SPECIAL SCHOOL DISTRICT;                           wr        co 0611512018 04:M PY
               GARY F XCHER, Mayor, City of Jacksonville, Arkansas;
                         I                                                                 M
                                                                                  CIRCUIT CT                  ‘M0
               and CITY IF JACKSONVILLE, ARKANSAS;
                        i
               (alt in h official caficities, and as.rqxesentativesof a
               DeffXKhll :lass o f s i d h y situated counties, cities and  .
               school dis icts, wherein ad valorem taxes are p s s d and
               levied upc the real an# personal property of cable television
               operators : r.thesuppot ofsuch counties, cities and scbool districts).         DEF~NDANTS
                                        1


                                 ~EPARATEDEFENDANTS  ROB M~GILL AND
                            THE RULASKX C O m SPECIAL SCHUUL DISTRICi?S
                           MOTIUN TO ADOPT TEIE MOTION TO DISMISS FILED BY
                          4RATE DEFENDANT ARKANSASPUBLlC SERVICE.COMMISSION

                          rate Defedants, Rob McGiU and PuIaski County Special SchoolDistrict (collectively

                          iy their attheys, Bequette & Billingsky, PA., their Motion to Adopt the Motion
                                                                       for

                          ‘iredby S4-k Defendant Arkansas Public Service Commission, allege a
                                                                                            &         state:    *

                                        I
                             OnoraboutJune 14,20 IO, SeparateDefmdantArkansas PWi c SeniceCoramission .

                          ion to Di&ss and Brief i Support ofMotion to DismisSi the above-slyM cause.
                                                 n                             n


                                        1
c



. ..
   .
       i
              .    2.     Sepm$ Defendants Rob McGill and the hilaski County Special School
                                 i
           hemby move to adopt +id Motion to D i m k and Brief in S@rpmt of Motion to Dismiss p



                  . WHEREFORE, SeparateDefetdmts, Rob McGiiI and the PuIaski County SpeciaI
           District, pray that the3Motion to Adopt the Motion to Dismiss and Biefin Support ofM!

           Dismiss filed by Separbte Defendant Arkamas Public Service Commission be granted; mc

           oQer relief to which Separate Defendants   Rob McGill and the Pulaski County Special

           District maybe entitImj.

                                                      ReqectfulIy submitted,

                                                      BE€!UElTE & BIUNGSLEY, P.A.
                                                      425 W e t Capitol Avenue, Suite 3200
                                                      Little Rock, AR 72201-3469
                                                      Phone: (501) 374-1 107
                                                      Fax: (501) 374-5092




                                                              b t b Billingsley, #86016

                                                      Attornqs for SeparufeDeJeedants Rob McG !and
                                                      the Rdasfi G u n @Special School District




                                 !




                                                        -2-




                                                                                 nn t n n ~ ;      Add.-   I
                             CERTlFICATE OF SERVICE

    4 , yBquett4 do hereby &fy thatp true and conect copy ofthe foregoing was sent i.ia
US.Mail rostage prebaid, to the following on tbis Eday of June, 2010:
Eugene G                                               .
                                               Robert E Batnbucg, Esq.
-0pb                                           Attorney for City of Jacksonville
         !
Hatfield ,                                     303 N James Street
                                                    .
401 West                                       P.O. 3ox 5913
Little Roc                                     JacksonviIle, AR 72078
Eric T r d                                     Pad 3. Wad, Esq.
Slltherlanl                                    Kevin Lemley, Esq,
999 P a d                                      ~ r k a h s PUWC
                                                           a~  service CommissiOn
Atlanta, C                                     lo00 center street
                                               P.0. Box 400
KarhMol                                        Little Rock,AR 72203-0400
Plilaski G
400 Ccun
201 S.Bn
Little Roc




-




                                         -3-


                   . .
                                                                  00 I fl37           Add. -   L
                                                                                               *   50
    JUN-15-18     82:52   PH   ROBERTBfiMBURG

         '-   R


I




                                         .      .




                                                              I




                                                    Add. -
                                                             551
    2:52   PM   ROBERTBRmlURC                   SB19826;fBZ                P.   as




I




2




                                 mF   T
                                R Et E, BAMBURG, ClW Attorney
                                Separate DefendantsGary Fletcher, Mayor,
                                and the C& of3acksonvllle, Arkansas
                                303 North James
                                 ,
                                P 0. BO%5913




                                , 2



                                                          uu 1 U 3 Y             Add.-   552
I




    Mr. Eugene G,Sayre                Ms, Karla Burnett
    Mr, Christopher b, Sroeketk




    Mr. Kevin M, kmley
    Mr, Paui3. Ward
    1000 Center street
    P, 0 Box 4oE)
        .
       e
    W Rock, AR 72203-0400




                                  3



                                                          Add.-   553
1




                 IN THE ClRCUtr COURT OF PULASKI CUUNTY, ARKANSAS
                                  SECOND DIVISION
    CQMCi T OF LITTLE ROCK, INC.                                              PLAINTIFF     '




    W.                                             Docket No. 6 W V - I 0-1473
    SARAH I. BRADSHAW, In her official capacity as @e
    DIrecbl rf the Tax Dlvlsbn of the Arkansas Publlc
    Senrice ;omrnlsston; ARKANSAS PUBLIC SERVICE               -
    COMMI YON; DEBRA 8UCKNER, in her official                           FILU) ,%mV10 16:37:14
    capacit! 3s the County Treasurer of Pulaski County,                 pat o'brjen Pulaski Circuit Clerk
    Arkan94 , JANET TROUTMAN WARD, in her official                      C!?Ql
    capacb if the County assessor of Pulaski Cwnty                                                     I


    Arkaner :and PUlASKl COUNlY ARKANSAS; ROB                                                   t
    MCGtU Acting. Supedntendant of h PULASKI
    COUM .SPECIAL SCHOOL DISTRICT; GARY
    FLETCl iff, Mayor, Ctty ofJacksonville,Arkansas; and
    c m c JACKSONVIU€, ARKANSAS: (all in their                                                         I




    offIda1 apamea, and as representatives of a
    Defend itcclassof similarlysituated counties, citres and
    school t trlcts, whereln ad valorem taxes are aszassed
    and lev1 Iupon the real and personal propedyof cable
    televisii operators of the supportof such counties,
    dtles ai school districts).                                              DEFENDANTS


                        PLAINTIFF'S RESPONSE AND OPPOSITION TO
                ionw TO DISMISS ~ S AMENDED COMPLAINTFOR REFUND
                              F     T
         FILE BY DEFENDANTS JANET TROUTMAN WARD, DEBRA BUCKNER AND
           PI ASKI COUNW#ARKANSAS AN0 JUINED IN BY DEFENDANTS GARY
              FLETCHER, MAYOR, CITY OF JACKSONVILLE, ARKANSAS, AND


            (   mes now the Plalntlff, Comcast ofL t Rock, Inc. (hershafler "Corncast" or
                                                  fe
                                                 il
    "Plalntil I, by and through its understggned counsel, and for its Responseand Oppsithn to
    the Mo rn to Dkmlss the Plalntiffs Ft& Amended Complaint for Refimd filed by
    Defend is Janet T K I U ~Ward,~Debra 6uckner and Pdaski County, Arkansas
           f                 ~E
    (her&
    Defend
       I The PfalnWidanlsseach and everyalkgationcrrntalned I Paragtaph oft s
        .                                                    n
Separate Motton to Dismiss by Puhski County Defendants, as further elaborated in 1

PlalntifPs 8rIef In Support of its Response and Oppasltlon to thls Motlon to DismrsS

Amended Camphlnt for Refund.
       2 The PfainfifFdenles each and ewyallegatipn confainedin Paragraph2oft s
       .
Separate MotIon to Dismiss by Pulaskl County Defendants, as furnet efaborabd in I            8

Haintiffs Brlef In Suppohof i s Response and Opposltlm to thls MdDn to Dismiss Fi
                            t
AmendedComplalnt for Refund.
       3 The Plaintiff denles each and every allegation wniainad in Paragraph 3 of I
        .
Separate Motion to Dlsrniss by Pubski County Defendants, as f;rther elaborated in 1
                                                                                i
Plaintis Briaf in Support of its Response and OppDsabn to %Is Motion to Dlsmlss F

Amended Complaint for Refund. Further, the Plaintiff affirmatively asserts and ado]          S

hemin, as if set forth agaln, word for word, each and every allegation asserted by 1 e

PtalntW in its OpposMon to the Pulaski County Defendants Motion to Dismlss Cornpla
(which -3 filed J t County Court action, below, and whtch Responseand Oppositior
                 nlw                                                                         S

Inmrporated hereln, word forword, as it is reproduced in its entirety in fhe '%ertifledcol   ?


of the recordfrom the Couniy Court proceeding, fmm WMCh the appeaiwascarriedto tl            S

Circult Court.

                                                                             te
       4. The Plaintiff denIes all i f the allegatkns contained f Paragraph4d h Pula
                                                                 n
County Defendants'Motlon to Dismiss F r t Amended Cumplahlfor Refund. The Plaln
                                     ls
asserts further, affirmatively, that it has pled a valid 'illegal exadlon' cause of acti

agalost the Defendants In thls civil actlon and that the PuWd County Defendants i
IBpFesentdVeof the other74 countle In Arkansas i which the ma1 property and tangit
                                es              n                                            9
                                                                                                        ..
persona! propertyof any cabletelevlsbn system operator is 'emneousv assessed by f            9




                                                                                                 Add.   I
                                                                                                             -!
                                                                                                             c
      APSC        fendants far all ad valorem tax yean that occur after the Complaintwas fM In
                                                                                          l
      thTs ci\    m:
                      The PlaiMadmowWges the Pulaski County Defendants assertloonthat they
      are g h         mtIce to the Court and the Plaintiff that these Pulaski County Dafendark are
      attemp      3 to reserye a right to plead fu@er with regard to these Separate Defendants’
      Matiin      DIsmiss tha PIalntifps First Amended Chmpfalntfor Refund,
                       There Is being filed (slrnulfaneoudy with the filing of ibis Rksponse and
      OPPS        n ta the PulasW County Defendants’ Motion to Dismiss ?be Plalntlfk flrst
      Ament           Complaintfor Refund) the PIaIntis Carnblned Brief i Supportof the Plaintiff‘s
                                                                        n
      Uespo       t   and OppoWn to the APSC Defendants’and the PulasW Cwnty Defendants’
      MOtIOfi     1   Dlsmiss the Plaintiffs Ffrst Amended Complaintfor Refund, as joined in by the
      city of :ksonville Defendants,whfch Brief is incorporatedherein, as if restated mdfor
                                                                                       r
      word.

                  IEREFORE, the PlaIntm, Corncast of Little Rock, lnc., prays that this Court will

      enter s     M e r denyfngthe Pulaski County Defendants’pending Mution io Dismiss First

      Arnenc      Complalnt for Refund, that has been med herefn, forthe reasonssetforth above
      and in      I   Piafntlws Brief in Support of the PlaintifPs Respnse and Opposition to the
      PUlask      m t y Defendant’s MotIonto DIsmiss the Plaintiffs First Amended Complaintfor
      Refunc




      91643Bf.l                                       3

I .    ... - .*
                    -
                    Ark. Bat No. 2005192
                    HATFELD & SAYRE
                    401 W. CapBol Avenue, Sulk 502
                               ,
                    LiMe M Arkansas 72201
            P       Telephone: [Sol) 374-9010
                    Facsimile: (501 374-8510

                            @ahandsarkmrq

                    EricTrash
                    SUTHERLANDAS8IL&B E N " 1
                    999 Peachtree Street, NE
                    Atfanla, GA 30309-3996
                    (404) 853-8578 Telephone
                    (404) 8534806 Fadmile
                                     a corn .

                           FOR P ~ I N T I F F
                    A~ORNEYS




8154381.1
                4     .
                          CERTIFICATE OF S E R V E

              G.S a m hereby certifythat a copy of the foregolng PfaiptifPsResponse
               Motion to Dismiss PlaIntifPs F h t Amended Complalnf for Refund Wed
                 Troutman Ward, Debra Buckner and Pulaski County, Arkansas has
                  tiy.U. S, Mail upon the following:
                County Attorney            Mr. Paul J. Ward
                                            r
                                           M . Kevin Lemley
                           Bullding        Aikansas Publlc SeMce Comrnissbn
                                           O0
                                           I 0 CenterSbt
                                           Post Office Box 400
                                           LItfle Rock, Arkansas 72203-0400
 r
M .Jay    3qu&e    .S

Bequetl 5 Billingsley                      Mr. Robert E. Barnburg
425 WE Capitol Avenue, Suite 3200          Attorney for City of Jacksonville
Ijttle Rr I Arkansas 722019469
           ,                               303 N. James Street
                                           Post OffIce Box 5913
                                           Jacksonvilfe, Arkansas 72078




                                       5      .
                                                                                      .   .




                                                                               '.     naa- F
                                                                                           c1
                  IN WE CIRCUIT COURT OF PUIASKI COUNlY, ARKANSAS
                                  SECOND DIVISION
      COMCAST OF      urn€RUCK, INC.                                            PlAIN1
      v.                                            Docket No. BO-CV-104473
      SARAH M.BRADSHAW, In her oficia1capacity as the
      Director af the lax Division of the Arkansas Public
      Servlce Commisskn; ARKANSAS PUBLIC SERVICE
      COMMISSION; DEBRA BUCKNER, in her official
      capaclty as the County Treasurer of Pulaski County,
     Arkansas, JANW TROUTMAN WARD, In her ofkJat
     capacity of the County assessor of Pulaski County
     Arkansas; and PULASKt COUNTY ARKANSAS; RUB
      MCGILL, Adng Superintendent of the PUUSKI
     COUNTY SPECIAL SCffOOL DISTRICT; GARY
     FLETCHER, Mayor, City of Jacksonville,Arkansas; and
     CITY. OF JACKSONVILLE, ARKANSAS; {all in thelr
     omdal capacities, and as representatives of a
     Dsfendant-classof slmilady skuat4 counties, cW s and
     schoot districts, wherein ad vaforemkxes are assessed
     and levied upon the real and personal propertyof cable
     television operators of the support of such counties,
     citles and school districts).                                            DEFENDJ f S
                                                                                      T



f     WAINTIFFS RESPONSE AND OPPQSlTfONTO MOTlON TO DISMISSAMEN1 E
      COMPLAINT FILED BY DEFENDANTS SARAH BRADSHAW AND THE ARKAN 1s
                                                                   D
      PUBUC SERVICE CQMMiSSlQN AND JOINED 1 BY DEFENDANTS ROB MCI lL
                                          N
              AND THE PULASKI COUNTY SPECIW SCHOOL DISTRICT
1
            Cumes now the Plaintiff, Corncast of Little Rock, Inc. (hereTnafkr "Cornce " or
1.
I
     "Plaintiff), by and through its undersigned counsel, and for its Responseand Opposi

     the Motion to Disrnlss the PlaintifPs Amended Cornptalnt filed originally by Defen
     Sarah Bmdshaw the Arkansas Public Servlce Commisslon (herernafter 'A
                                                                                           b-
I    Defendants"}, and which Motion to Dismiss has subsequentlybeenJoined in by

     DefendantsRob McGII! and the Pulaski County $pedal School Dlstn'ct and

I    state and allege as follows:


I
I                                                                     00 IO46                 A d J
                                                                                                      559
.
                1 The Plaintiff denies each and every allegationcmtalned In Paragraph 1, and as

    further t Iborated in the Defendants' Brief in Support of the Motion to Dismiss.

                2    With regard to the allegatlons set forth In the first sentence of Paragraph 2 of
    the APE         Defendants' Motion to Dismiss, the Plaintiff acknowledges the authority of the

    Tax Dit on of the Arkansas Public Senrice Commission (herelnaffer the 'APSC:) to
    determl , annually, the "assessed values" of the taxable mal property and personal                  ,



    P w m           f ufilities and common camer businesses, as set forth inArk. CodeAnn. 926-24-

    101 thrc jh Q 26-24-1 03,but the Plaintiff denies that it (or any other operatorof a cable

    televisk system in Arkansas) is engaged Inthe businesses of a utility or common carrier.
    The Pia iff further asserts, affirmatively, that the Tax Division of the APSC was granted

    the aut1 ity by the Arkansas Gmeral Assembly f assess, for ad valorem tax purposes,
                                                  o
    the vatu If the real and personal of the operators of cable televisbn systems sdefy under
    the expr s provisions of Act 175 of 1975 (Ark. Code Ann. 5 26-26-1801 through 026-26-

    18031,E )chapter I 8 of Chapter 78 of Title 26 of the Arkansas Code Annotated of 1987,
    as Amei ed,

                V h regard to the allegationsset forth in the second sentence of Paragraph2 of the
    APSC 1 Fendants' Motion to Dismiss, the Plaintiff states that it does            not know what
    statuto? ~uthority APSC's Tax Division relies u@n to sand the Plaintiff, annually, an
                     the

    Annual I        Valorem Tax Report (Form T D ?,Cable Telsvision), and therefore denies the
    allegatlc       i set forth by the APSC Defendantsin the s   a n d sentence of Paragraph 2of the

    APSC's          otion to Dlsmlss.

            V h regard to the allegafins set forth in the third and fourth sentences of
    Pabgra          2ofthe APSC Defendants' Motion to Dismiss, the PlaintiffafFirmatIvelyasserts
    that it is It engaged in any of the businesses of the utilities or m m m n carriers listed by

    St51301.l                                         2
the General Assembly i the express provisions of Ark Code Ann. 5 26-28-1 601, E
                     n
and, since Ark. Code Ann. § 28-26-1603 and 1610 are subparts of Subchaptei 16 of

Chapter 26 of Title 20 of the Arkansas Code Annotated of 1987, as Amended vhich
Subchapterdeals solely with the assessment, for ad valorem tax purposes, of the re 11and

.personalproperty ofthe 'uiilities' and 'common mrriers*that havebeen expressly I by
                                                                                 !

the Arkansas Genera! Assembly In the provisions of Ark. Code Ann. § 26-26-160 1, the

Plaintiff affirmatively assertsthat the APSC's Tax DIvisIon cannot regallyorconstlht inally
                                                                               e
determine the massesedvafues' of its real and personal property (northe " a s sd
values of the real and personal property of any other cable televiskn system 01 rator
conducting business In the State of Arkansas), under UIS provisions Of Ark. Code nn. Q

26-26-1 610, because that statutorily created method for assessing the value of r I and
                                                                                 e
personal property by the APSC's Tax Dlvision i statutorily limited and restricted o ly for
                                             s
the assessmentof the real and personal property of wuLilities'and *common carriers The

Plaintiff I not now, or has It been (since-1975)eigaged in any of the businesses des ribed
          s                                                                                      I




in the provisions of Ark, Code Ann. Q 26-26-1601*

        The Plaintifffurther afflrma!ively asserts that It denies any part of the alfeg lions
contained in Paragraph 2 of the APSC's Defendants' Motion            €0 Dismiss   A p ided

Complaint and, as further elaborated in the Defendants' Brief in Support of the Mo     3 to
                                                                                        n

Dismiss, denies any allegation in Paragraph2 of the APSC DefendantS' Motionto D miss
Amended Cornplaintothe extentthat any allegationcodained in Paragraph 2 ofthe, PSC

Defendants' MotIon to DIsmiss Amended Complaint may imply that the Plaintiff ((        p   any
other opersttor of a cable television subscriptlon system) Is classffied as a "commonc Tier
or as a 'utility, under any of the provtslons of Subchapter f 6 of Chapter 26 orTrtle !6 of

the Arkansas Code Annotated of 1987, as Amended.

8154361.1                                    3
                3, With regard to the allegations set forth in the first and second sentences of

    Paragmi 3 of the APSC Defendants' Motioti t Dismiss, the Plaintiff acknowledges and
                                               o
    admits tl        allegations contained h the first and second sentence of Paragmph 3 o the
                                                                                          f
    APSC t fendants' Motion to Dismiss Amended Complalnt. However, thd Plaintiff

    affltmath ly asserts {with regard to the allegations contained in Paragmph3 of the APSC
                                                     is
    Defenda s Motion to Dismiss) thatthe Plaintifps FrtAmended Complaint fled i this c'rvil
            '                                                                  n
    action hr        elhinated any and all allegations (that may have been set out iir Its original

.   Cornplaii I that may have stated that the Plaintiff was seeking, in any way, in this dvil

    acfIonfih In chis CIrcuit Court, to appea!to thfsClrcuR Court from any declslon rendered
    by the AI E Defendant, pursuant to the provisions of Ark. @de Ann. § 26-24-123.
                TI Plaintifffurther aff~matively m t s in this civil action that there exists'atotally
                                               k
    separate tatutory provlsfon for R to utilize I seeking a refund of its overpayments of ad
                                                  n
    valorem ' Kesto the Pulaski County Defendantsforthe 2005,2006,2007,2008 and 2009

    ad valort       1 tax   years, The Plaintiff affirmatively asserts that the provisions of the Real
                    wners Bill of Rights (Aid 572 of 1999), especially tbe provisions of Section 8 of

    Act 572 c I999 (Ark. Code Ann. Q 26-35-9011, constittrtes a separate statutory procedure
    and crea s subject matter jurisdiction in this Circuit Court for the Plaintiff to maintain a

    separate ause of action for the refund of the ad valorem taxes that it alleges that It
    overpaid        ir   each ofthese fiva (5) ad valorem tax years, all as more fully set forth In the
    Plalntiffs 'irst Amended Complaint and as further elaborated in the Defendants' Brief In

    support         the Motion to Disrnlss,
            4. The Flaint'idenies, and affirmativeIyasserts,-thatthe allegationscontalned In

    Paragrap 4 of the Defendants' MotZon to Dismiss Amended Complaint                 and the Plaintiff

                                                              .-                               t
    hither af rnatively asserts, as further elaborated qn In'the PlaintiffsBdsf In Support of Is

    916436t.l
                                                        4

                                                                               00 1 0 4 9             Add. -
                                                                                                               562-
Response and Opposition to the APSC’s Motion to Dismiss Amended Complalnt, tl it the
allegations set forth In Paragraph 4 of the AFSC’s Motion to Dismiss have nothing to do

with the Plalntiis sote cause of action (asserted under ft a provisions of Ark. Code
                                                         ih                            I   nn. 3
26-35-901j in the Plalntiffs First Amended Cornplalnt. Therefore,the Plalnflffasset I that

the allegations set out in Paragraph 4 ofthe APSC’ Motion to Dismiss are not gem ne to

the matters in controversy in this clvil action, under the allegations of the PlaInW Flrst

Amended Complaint, since the Plaintiffi not seeking, in this cM actfon, to appeal
                                      s                                                    1 thls

Circuit Court from any administrative order in any proceeding before the APSC.

            5.   The Plaintiff asserts that the allegations contained In Paragraph 5 f the
Defendants’ Motion to Dismiss First Amended are not germane to the matt                    IS   in

mntroversy in this civil action, under the allegatlons of the Plaintiffs First A m id&

Complain, since the Plaintiff is notseekhg, in thls civil adon, to appeal to this Circuil hurt

from any adrnfnlstrative order in any proceeding beforethe APS C. The provisionsr !Ark.

Code Ann. 5 2635901(a) provide an alternative stafutaymethod created by the Ark nsas

General AssembIy for a taxpayer to difize tu chaltenge an APSC assessment, sin( !this
statute expressly provides that ’when any person has paid taxes on real prop€ ty or

personal property, emneously assessed, as defined and described in 5 26-2&1
upon satisfactory proof being adduced to the county of this fact, the county COUF shall
make an order dimted to the wunty treasurer refunding to the person the amount If tax
SO   erroneously assessed and pald. All erroneous aeessment dahs for propel                {   tax

refunds shall be made within three (3)years from thedate taxes were pald.” Accon: WIY,
the Plaintiff denies the allegation that this Circuit Court lacks statutory authorit! {Le.,

subject maffw jurisdiction) to hear the cause of action set for in the Plaint*#? FiEt
Amended Cornpjaint. Therefore, the Plaintiff asserts that the allegations set              ~t in

9154301.1                                     5
                                                  matters In controversy
ofthe APSC' Motion to Dlsmlss are not germane?o'the
 on,under the allegations of the Pialntiff's Arst Amended Cornflajnt, slm
  not see~ng, this
            in             actiwn, to appeal to this Circuit court k any
                                                                    n
                                                                    r

 order in any proceedlng befure the APSC.
  Plaintiffdenies each and every allegationconta~ned Paragraph6 of the
                                                   in
  ns Motion to Dismlss and as further elaborated in the Plaintiffs Brief in
   t'
    sponse and Opposition to the APSC Defendants' M o t h to Dismiss the



     intiffdenles sa& and every allegation contained in Paragraph 8 of the

      Motion to Dismiss and as further elaborated In the Plaintiffs Brief in
       onse and Opposition to fhe APSC Defendants' Motionto Dismiss the


       ntiff acknowledges the statements con€aainedin Paragraph 8 of t h ~

        otlon to Dismiss Fhst Amended Complalnt, but the Plaintiff further

                       nts alleged in Paragraph8 of the APSC Defendants'
          Amended Complalnt, and In the Brief In Supporl of the Separate
           n to DIsmlss Amended Complalnt are not germane to the matters
           civil action, under the allegdionsof fhe Plaintiffs First Amended
           lntlff I not seeking, in fhls civil actlon, to appeal to this Circuit
                  s
            the order In any proceedlng'before the APSC.
              filed (slmukaneously with the filing of t k Response and
                                                       h
               ndants' Motion to Disiniss) the Plaintiffs Brief in Support of
                pposition to the APSC Defendants' Motionto Dismiss, which
                 ifrestated word for word.


                               6
                                                                                             i
                                                                                             !
       WHEREFORE, the Plaintiff, Corncast of Uttle Rock, hc., prays that this Cc             I

                                                                                             !

enter an Order denying the APSC Defendants' pendlng Mown to Dismiss AIT
                                                                                        '!
                                                                                             1
Cornplaht, that bas been filed or has been joined in by the PCSSD Defendants,                !
                                                                                             :
reasons set forth above and in ttte Plaintiffs Brief in Support of the Plaintiffs Res        :

and Opposition to h e Defendant's Motion to Dismi
                                                                                             i
                                                                                             I
                                                                                             ?
                                                                                             f
                                                                                          i
                                                                                        . i




                                                Ark Bar No. 2005192
                                                HATFIELD & SAYRE
                                                401 W. Capitol Avenue, Suite 502
                                                tittle Rack, Arkansas 7220f                  I


                                                Telephone: (5011374-9010
                                                Facsimile: (501) 374-8510
                                                ssavre8handsark.com
                                                cbrockettmhandsark.com

                                                Eric Tresh
                                                SUTHERIANDASBILL&BRENNA
                                                999 Peachtree Street, NE                 1

                                                Atlanta, GA 30309-3996
                                                (404) 853-8579 Telephone
                                                (404) 853-8806 Facsimile                 !
                                                Eric.tresh@sutherland,corn               I
                                                                                         I


                                                ATORNEYS FOR FMNTIFF                     I
                                                                                         I
.                                      CERTIFICATE OF SERVICE

           1,Zugene G. Sayre, hereby certifymat a copy of the foregoing PIalntiffsResponse
    and Opl  M i o n to Motion to Dbrniss Amended Complaint Filed by Defendants Sarah
    Bradshe  vand the Arkansas Public Service Commissionand J o h d In by Defendants Rob
    McGilf a t the Pulaski County Special School DMrict: and Defendants Gary Fletcher,
              d
    Mayor, I ityof Jacksonville, Arkansas, and the C i o f Jacksonville, Arkansas haslblsdate
    been se ted by U. S Mail upon the following:
                        .
    Ms. Karl I Burnett, County Attorney                 Mr. Paul J. Ward
    Room 4 0                                            Mr. Kevin Lemley
    Pulaski 1 aunty Admlnlstration Burrding             Arkansas Public Senrim Commission
    201 SOL h Broadway                                  I000 Center Street
    little Ro k, Arkansas 72201                         Post Office Box 400
                                                         ite
                                                        Ltl Rock, Arkansas 72203-0400
    Mr. Jay equette
    Bequetti & Billlngsley                               Mr. Robert E. Bamburg
    425 We:t Capitol Avenue, Sulk 3200                  Attorney for City of Jacksonville .
    Little Ro k, Arkansas 72201-3469                    303 N. James Shet
                                                        Post Office Sox 5913
                                                        Jacksonville, Arkansas 72078
                D Ine at LIttle Rock,Arkansas, an this 28"




                                                                                .   .




    9154381.1                                       8
               IN THE CIRCUIT COURT OF PULASKI COUNlY, ARKANSAS
                                    SECOND DMSlON
COMCAST OF UTILE ROCK, INC.                                                     PIAIM
v.                                               Docket No. 60-CV-I 0.1473        .
SARAH M. BMDSHAW, In her offidial capacity as the
Dlrector of the Tax Dlvlslon of the Arkansas Public
Service Commission; ARKANSAS PUBLIC SERVICE
COMMISSION; DE8RA BUCKNER, In her official
capadty as the Cohty Treasurer of Pdaski County,                            J%%VIQ j
Arkansas, JANm TROUTMAN WARD, in her omcia!                         P.?f fi'fyiw ~ 1 1 %
                                                                    .-. 4::-::
                                                                             .*
                                                                            .:
capacjty of the County assessor of Pufaski County                   mol -
Arkansas; and PUIASKI COUNTY ARKANSAS; ROB
MCGILL, Acting Superintendent of the PULASKI
C O U W SPECIAL SCHOOL DISTRICT; GAUY
FLETCHER, Mayor, Cy of Jacksonville, Arkansas;
                        it
and CITY OF JACKSONVILLE, ARKANSAS; (all in
their official capacities, and as representatives of a
Defendant-class of similarly situated counties, cit'ks
and school distdcts, wherein ad valorem taxes are
assessed and levied upon the real and personal
property of mbletelevision opyators of the support of
such counties, cities and schod distn'cts).                                     DEFEN ANTS

 BWEF IN SUPPORT OF PLAINTIFFS RESPONSE AND OFPOSlTIONTO Ml I N
                                                           o
TO DISMISS FILED BY DEFENDANTS SARAH BRADSHAW AND THE A M P ;As
PUBLlC SERVICE COMMISSION AND JOINED IN BY DEFENDANTS ROB MC 1U
AND THE PUIASKI CUUNTYSPECML SCHOOL DISTRfCT AND OPPUSITIO TO
   MOTIONTO DISMISS FILED BY DEFENDANTS DEBRA BUCKNER, JANE
  TROUTMAN WARD, AND PUIASKl COUWlY, ARKANSAS AND JOINED IN Y
DEFENDANTS GARY FLETCHER, MAYOR, CITY OF JACKSONVILLE, ARKAh IAS,
            AND THE CITY OF JACKSONVILLE, ARKANSAS
           Corncast of Liffle Rock, Inc. (herelnafier "Corncast" or "PlalntW) respe fully
submits this brief in support of its Response and Oppositlon to APSC Defen mts'                 '




Motlon to Disrnlss (which h t l o n to Dbmiss has nowbeen formally adopted and. ined        +



92320524                                      llllllllllltlllllliilllIllWllll

                                                                     0 0 I Q5r;
                 mdant Pulaski County S p d a l School Dlstdct) and to Ptllaski County Arkansas

                 Its' Motion to Dismiss    (whlch Motion to Dismiss has now been formally
    adoptei and joined In by Defendant Clty of Jacksonville, Arkansas) (hereinafter

    cull&        y referenced as "Defendants" unless otherwise identified). The pendlng

    Motion!      D                                                               arr
                     Dismiss must be denled because Corncast's right to seek ad v b e n tax

*   refund       *   the 2005-2009 tax years is expressly authorized by the Arkansas Property

    Taxpay       5   Bill of Rights (hereinafler referred to as the Taxpayer 8ill o Rights").
                                                                                  f
    specific ly, Sm*on 8 of the Taxpayer Bit1 of Rights provides that an ad vatorem
                 may file an actlon seeking to recover a refund of emneously assessed ad
    valorem axes within three (3)years of Instituting the clalm for refund actlon.
             f   ther' than pemit this Circuit Court to detemtlne whether Corncast's refund

    claims   I   3   valid, the Defendants ask this Court to disrnk Corncasfs claims and bar

    Comca: from ever seeklng judicial review of its claim for a refund of emneausly

    assesst          ad valorem taxes.   Defendant's ask this court to bar JudlctaI review of
    Comca!       i   clairns'even though the Taxpayer Bill of Rlghts provides taxpayers with a

    separat sause of a'ction to bring a refund claim for erroneously assessed ad valorem
    taxes fi 1 wlthin three (3)years of the date of the payment by the taxpayer of an
    emnea            assessment. Ark. Code Ann.    3 26-35-901. In fact, last year, the CIrcuit
    court 0' 'ulaski County, S i i h Division uphdd a taxpayer's rigM to maintaln a claim fur
    a refuni i f ad valorem taxes withIn three years of the date a refund claim was f l k d

    under tt     Taxpayer Bill of Fiights, See                                  ard Case No.


                                                   2
2007 009779     (Clrcult Court of PulasW County, Sixth Division, June 22, :OOQ)
Comcas€'s claims for refund were brought within the three year statute of lirni lions
provided for in the Taxpayer 8il of Rights and no jlidicial court or administrative I ency
                                                                                    ue
has ru!ed on the merits of Corncast's dahs, therefore, this Court has Jurisdiction r l
                                                                                     I




       Defendants assert that Corncads 2005-2003 refund claims are b a d             f   the

equitable doctrines of res judicata. Defendants misconstrue the law and their h' lions
fail to acknowledge that Cumcast's refund clalrns were brought under a separate      3USe

of action under the Taxpayer Bill of Rights. Because Corncast's d a h s befoi this
Court constitute a separate cause ofaction, t l Court has JurisdJctIonto revlev
                                             hs
claims for refund, de novo.
      Furher, the equitable doctrine of res judjcaf8 does not bar a judicial u
competent jurlsdIction from reviewlng Camcast's refund claims. Defendants are 1
to point to a slngle Instance where an Arkansas judicial court was barred from nrl

a taxpayer's separate cause of actlon based on h e prior ruling of an adminb

agency-    o
          T the contrary, Arkansas cuuh have held that the application of m s j ~
does not apply as forcefully to the decision of an adminishtive agency, partii

when such decisions have never had judicial revJew. The Supreme Court of Ark
has expressed concern about applylng res judicata to unreviewed adrninis

dedsions and if this Court were to grant Defendants' Motion to Dismiss, Corncast

be f o r d to pay erroneously assessed property taxes imposed on exempt prop1

                                           3




                      f'   .
,dm

                     STAMPARD OF REVIEW

hen a Circuit Court reviews a Motion to Dismiss the Plaintiffs Complaint under
                  sas Rules of Civil Promdurn ("ARCP") the priordedslons of

                  rt (See, Beene v. Huffo, 192 Ark. 948,96 S.N..Zd 485 {Ark.
              298 Ark. 241,706 S.W. 2d 431 {Ark 1989); and McKinnev v. Citv

                              d
      303 Ark. 284, 824 S.W- Z 826 (Ark. 1992)) require the mviahing Circuit
                   cts alleged in PlaintifPsComplaint as true and all such facts

                    favorable to the Flainfiff. The Circuit Court must look only

                     e Cornplaht and not to extraneous material or facts from

                     de whether the Motion to Dismiss should be granted or

                      ings are to be liberally construed   In favor   of the non-

                      I case). See, e.g., Deltsch v. Tilley, 309 Ark, 401, 833
                      s




                      rowding, the Court may not consider the attachments
                              ismiss in de'cilng the merits of,the Motion to
                        turn the Mo€fon Dismlss into a Motion for Summary
                                          to
                        f Rule 56 of the ARCP. Since the APSC Defendants
                               dictional point or authority (or to attach an
                                 nd filed in the County Courf, pursuant to the
                           5-901, there are no grounds upon which this QuTt
                                 gment. As well pled i the PlalnWs First
                                                          n
                                   rial factual Issues that must be declded by
                             ary record has been created at frial in this case.
                                                                                    !
                                 4
                                                                                    !
                                                                                    !
                                                                                    t
                                                                                    !

                                                                                    I
                                                                                    t
                                                                                    570
                                         ARGUMEUTS

           I.     fhls Circuit Court Has Subject Matter Jurisdiction Over C o m a rs
                  Clalm for Refund Cause of Action, Under Ark. Code, Ann. 5 28-3 -901.

           This case involves Corncast's claim for a refund of emneously assessf I and

paid ad valorem taxes for the 2005         - 2009 ad valorem tax years,       The em     MUS

assessments challenged          In ComcaSrs     daim for refund occurred becaw ' h e

Dsfendants' erroneously determined the assessed value of Corncads prop                   Y
                                                                                         t by
assessing its Intanglble personal property. For each of €he ad valorem tax yt its in

question, all of Corncast's intangible personal property has been exempt (since 1 7 )
                                                                                 97
from assessmentfor ad valorem tax purposes, under the provisions of Ark. Code nn. 5
26-3-302.
           In the Arkansas Taxpayer Bill of Rights, the Arkansas Legislature spec ically
granted taxpayers whose prdperty taxes have been 'emneously assessed' a ca se of
action for refund of such 'emneously assessed taxes in County Court. Speci cally,
Ark. Code 5 26-35-901 provides:'

           { When any parson has paid taxes on any rea?property or personal
             I )
           property, emoneousiy assessed, as defined and describad In 3 26-28-
           11?(c), upon satisfactory proof betng a d d u d to the county court of thb
           fact, the county court shatl make an order directed to the county treasurer
           refunding to the pewon the amount of tax so emneously assessed and
           paid.

       (2) All emnews assessment claims for property tax refunds shall be
       made wibln three (3)years from the date the taxes were paid.

           Based on the 'above statute, this Circuit Court has subject matter Jurlsdictio over

€he Plaintiff's refund cause of action (and personal Jurisdiction over the parties. ' t l
                                                                                       hs

                                                5
92820524



 c




                                                                      00 i 058
i
    action), nshg from the P a n i s appeal from the County CouFt refund action it initiated
                            llfW
    on Sepl nber 18,2009, In the County Court of Pulaskl County, Arkansas. mat County
    Court a     Ion sought a refund of these same ad valorem taxes and was given the Docket
    No. 20c -2 by tha County Clerk. When the presiding County Judge entered a dlsrnissal
    Order (I fhe County Court action, on Febmary 16, 2009, the Plaintiff timely appealed

    that Dis bsaI Order to this Circuit Court (under the provisions of Rule 9 of the Rules of
    the Dlsi =t Court). The certified recard from the County Court proceeding was tlmely
    filed in ! is Circuit Court on March 18,2009.Therefore, the PIalntiff has satlsfled all of
    the reqt ements that an action to challenge a county ad valorem tax be instituted in the

    County ourt, as required by the provisions of Article 7, Section 28 of me Arkansas.

    Cafistitr   an, and the provisions of Ark. Code Ann. Q 26-35-901 See, the 2008 declsion
    of the P :ansas Court of Appeals in the case.styled Muldoon v. Martin, 103 Ark. App..

    64,286 .W. 3d 201 (Ark. App,, 2 1 8 . See also, Avava. !m=. v. Janet Tmutrnan Ward,
                                   07)

    Docket      3 2007 009779 (Circuit
                 .                       Court of Pulaski County, Sixth Divfsion, Decision for

    T=paYl      HalnBff entered on June 22,2009, na appeal by Pulaskl County, Arkansas).
           t rendants allege that thls Court can obtain subject matterjurisdiction over an
    assessn int only through the appellate procedures of Ark. Code Ann. $26-24-123-

    Men& Is, howvbr, fail to acknowledge that that Ark. Code Ann. 526-35-901 provides
    fur a sej r t muse of actlon under the circumstances referenced in the Taxpayer Bill
               ae
    of Right: Defkndantspoint to SouthwesternBell Mobile Svstems. Inc. v. Arkansas

    Public S vice Comm'n, 73 Ark. App. 222; 40 S.W. 3d 838 (Ark. 2001), for the

    proposit n that a taxpayer that does not comply with Ark. Code Ann. 526-24423hats

                I                                0




                I
                                                                                             nuu.   -
                                                                                                        572
no orher remedy. However, that case deatt only with the appropriate standard D          i8W

when a M l fudge reviewed a prior determination of the Cornmlss!on: =Arkansas
        a                                                                               de

Annotated sedan 26-24-123{c) {Repl. 1997)provides that appeals from 8 Comr              Ion

rullng regarding assessment shall be tried de novo." Southwestern Bell, 73 Ark.         .b at

231,40S.W.3d at 844. It dId not address the remedies provlded to taxpayers, s           as

                                                             issued erronmi
Corncast in Ark. Code Ann. §26-35-901 that have been ~llegally
assessments and who are entikd to a refund from such assessments.

           Defendants furtherallege that Corncast is trying to use a general pm~sfoi k.
Code Ann. 5 26-35-901 , to supersede a specific provlslon, Ark, Code Ann.      5 26-1   23,
thereby rendering Ark. Code Ann. § 26-24-1 23 meaningless. However, Ark.         Cos    nn.
5 26-35-901 is a specific provision granting a right to a refund within the llmlted c
of an 'erroneous assessment." Within such confines, the Arkansas Legislature t

granted #Is court (upon appealfrom the County Court) jurisdiction to refund ad I        -em
taxes originally assessed by the APSC.    me utifkatlonof this sepamfe cause of         Dn

in no way usurps the AsPC's general jutisdiction with regad to the power to ass         the

property o a cable television company and ta review such assessment. Corncat
          f
merely asks thls Court to review its claims under the sepamte cause of adon fa

refunds of taxes erroneously assessed provided for by the Arkansas Taxpayer B

Rights in Ark Code Ann. 328-35-90f.
           Defendants cite to Ballheher v. Sewice Finance Corn, -292 92,728
                                                                   Ark.             4    .d
                                                                                        '2
778 (Ark. 19871, forthe proposition that a specific act precludes use of a general      on
the same subject. Ballheher dealt with the cornpaison of a general statute of
                                             7
928M52.4




                                                                                              HCLU.-   573
b




    limitatio       3 to a s                                                                 w
                               m c statute o imitations. While b e Ballhelmer court mrnpared t
                                           f
    StafuteE lealing with the "same subject matter,"Ark. Code Ann. Q 2635-9U1does not

    a d d m he exact same subject matter as doas Ark. Code Ann. 0 26-24-123 because
    Ark. Co :Ann. Q 2&35-901 applles specVicalIy to erroneously assessed and paid
    taxes.      '   11sI a different subject matter than statutes gmting the Commission with
                       s
    jutisdicf n over the assessment and laxation of certain entities.

               I, claiming that Corncast has no cause of action before this Court, Defendants

    further t e to Clay Countv v. Brown Lumber Co, 90 Ark. 413,t I 9 S.W, 251 (Ark.

                    ifding #at a fallure to invoke a statutory remedy precludes relief by any other
    proceec 19s)to show that Corncast I not entitled to relief before this Court because it
                                      s
    did not ; lpeal Is prior ASPC rullngs to this CircuH Court pursuant to Ark. Code Ann. 3
                     t
    26-241 3, Thls reference fails to substantlate Defendants' position because Camcast

    Is reqw ing relief through the sfalufory remedy for taxes emneously assessed and

    paid prc ded in Ark Code Ann, §2635-901.

               II      Sfnce This Circuit Court Has Subject Matter Jurisdiction in
                       This Case, Underthe Taxpayer BM of Rlghts (Codified In Ark.
                       Code Ann. 0 2655-901) Corncasbis Provided With a Statutority
                       Created Cause of Action for a Refund Claim of Erroneously
                                                                     e
                       Assessed Ad Valoe'm Taxes That Have m n Paid to the
                       County Treasurer Within Three (3) Years of the Date o ?he f
                       Overpayment, and Corncast's CIairns for Refund in QuesUon In
                       Thls Civil Action Meet All of the Rquirements of This Statute.
               C rncast meets all of the requiremenis to seek a refund under the Taxpayer 8ill
    of Rghl           Under the Taxpayer Bill of Rights, a cause of action is avallabte for any

    person hat has paid taxes on real or personal property where such property has

                                                      8    -
    32820s24




                                                                            00 IO6 1.                 A   f   l

                                                                                                                  574
I

    been erroneous& assessed.         A "person" I defined as a Yim, csompai
                                                 s
    corporation." Ark, Code Ann. 5 ZS-I-'l01(5). Corncast is a corpomtlon and tfif
    meets the definition of a person. The amounts of ad valorem taxes that are i dlq
                                                                               n
    thls civll action relate to ad valorem taxes assessed and paid by Corncast ( b q
    with the 2005 ad valorem tax year) on the value of intangible pbperty own
    Corncast.   Intangible properly is "personal property" (baaed on the refem

    intangible property as 'intangible personal propertf in Ark. Code Ann.   5 28-3-31
    that the 'exemptive provisbns"of Ark. Code Ann. 5 26-3302 are contfwthgof t
                                                                              k
    raised by Corncast in its Claims for Refund filed with the County Court of      F
    County, Arkansas on September 9 8,2009.
          Because Corncast meets ttre firs€two elements of this statute for filing a   I




    claim, the only remaining Issue is whether the assessment of Corncast's inta

    personal property I an "emneous assessment." The term 'erroneous assessm,
                      s
    defined In Ark Coda Ann. § 26-28-i 1I(c) to include the folloWmg:
          [Alctuat and obvious errors on the tax books and related record, with such
          emom being restricted to extension errors, erroneous properly description
                                                                                   n
          classifications, or listings, and shall not be Wlized to make any change I
          the valuation of any real ur personal property as shown on the tax books
          and related records other than a change in valuatlon necessitated by the
          correction of actual and obvious ermrs as provided in this section.


          The Akansas Supreme Court has specifically held that property taxes pi
    exempt property is a type of 'erroneous assessmenL" Glav Countv V.       k m L1
    CO.. 90 Ark. 413, 420, 118 S.W. 251, 253-4; See also RitcMe Grocer v. C


                                              9




                                                                                           Add.-   575
                                                                                      '
                    s addressed Brawn Lumber W's dalm that its propetty had

                    cessively assessed." 419 S.W- 251, 251 (Ark. M 9 ) . In
                    went that an excessive assessment or an overvaluatbn of

                     I K d as an "erroneous assessment," the Court explained
                      on did not come within the definition of *erroneous


    term 'erroneous assessment,' as there used, refers to an assessment
                       law and is therefore invalid, and is a defect that is
                  ature, and does not refer to the judgment of the
                  In fxhg the amount of the valuation of the property. I f
                 on was exempt from taxation, or if the property was not
                  nty, or if tha tax was invafid, or if them was any clear
                  granted, so as to make the assessment beyond the
                        sing officer o board, then the provisions of Kirby's
                                      r
                         er a remedy for a refunding of such taxes...
                        Ily attempt to argue that this relevant part of the Court's

                         .   The specific issue   In Clay County was whether an
                          xpayets propeity fell within the.gambit of sir180 of
                             s of tax& "erroneously assessed and         'paid" (a
                              26-35-901). The crucial explanation for why the

                              n his claim was'thaf mere over assessments (of
                              us assessment"' Thus, the Cuufls statement on

                    ansas has long recognized a distinction between emor's In
         ropaity and the recognition of 'exemptions* of properly. "The facts did .
                              raised one of valuatfon. S
                                                    -                          of
                              (finding constituff onal provision requiring all
I




                                                                                          i7E
Miat constitutes an 'erroneous assessment" fs not dicta, bot rather the C

explanation for why the taxpayer in that case was unable to succeed.
        For the tax years 2005-2009, Defendants "emneously assessed" ad va warn

taxes against Corncast based, in part, by includiFtg within the assessed Val e of               .
Corncast's property the vaIue of Corncast's "intangible peFsonal property," a5 se     fOfUl

and described In mom detail in Corncast's First Amended Complaint for RefL d of
Taxes filed with this Court on May 24, 2010. Corncast filed a timely Complai t for
Refund of Taxes With the County Court of PJaski County, Arkansas on Septemb 18,       -
2009,   pursuant to the pmvisbns of Ark, Code Ann.' 3 26-35-901(a). The ad va rem
faxes paid and complained of by Comast qualify as an "emneous assess ienl'

                                                                           r
because Defendants wrongfully imposed ad valorem taxes upon Corncast (for e :h of
the ad valorem tax years In suit), since a large portion of these ad ualomm taxes vem

"arbihrily, caprfclously, emneously, illegally and unconstitutionally" compufec and

assessed by incfudlng the values of Corncasf's "intangible personal property," i the

"assessed values" of Corncast's personal property (fur each of these ad valore        I   tax

years], which 'intangible personal property" has been declared, by statute, to be el impt

frnm the ad' valorem taxes levied on the Defendant. Despite the fact that Coi cast
operates a cable televislon subscription buslness arid I not a utility or common c nier
                                                       s
(as those businesses are defined in Ark. Code Ann.      5 28-26-1601), the Defenc mts'
erroneously and unconstituffonally assessed Corncast's "intangibfe personal pro]      w
                                                                                      3
property subject to taxatlon be taxed according to its value did no€ restrict power of w
Leglslature to select the objacfs of taxation.)
J
    as if thi mrporate taxpayer was a "utility" or a 'common carrier." Thus, Corncast's

    intangib property was exempt frum assessment for all ad valorem tax levles, pursuant
                                                    ..
    tQ the p visions of A k Code Ann. 3 2-202,                for each of the ad valomm tax years
    from 2 5 through 2008, and the assesshg of such exempt 'Tntangible personal
         C

    propert) by the Defendants entitles Corncast to a refund of hose illegally and
    unconst tionally assessed ad valorem taxes,

                II        Ark, Code Ann. 5 26-35-901 Was Created as a Separate Cause
                          of A d o n and D o e s Not Require Taxpayers to Exhaust Any
                          Administrative Remedies
                i    !   separate statutorily created cause of action (under the provisions of Ark.
    Code        P    1. §   26S5-901), that allows taxpayers to make a claim for a refund of

    emneo ly assessed ad valorem taxes contains no requirement that taxpayers must
    fitst exk 1st any adminlstmtive remedies, before a refund claim can be filed in the

    County           )urt of the county that erroneously assessed and levied the overpayments of
    ad valoi         n taxes that are #e subject of fhe taxpayer's claim for refund.     Thus, the

    APSC K rendants' assertions             n
                                            i their Motion to DIsmlss that Corncast failed to' seek
    rehearin of thi APSC's Ordei for the consolidated 2007-2008,relative to Corncast's
    appeals          the administrative actions before the APSC, are simply facts and arguments
    that are ~t germane to the Issue now before this Circuit Court on the Plainfiffs First
    Amend€ Complaint for Refund. There i no longer any claim of a muse of action by
                                       s
    Comcas pursuant to the provisions of Ark. Coda Ann. 3 28-24-123, regarding any
    appeal      j    rn any admlnistmtive dedslons by the APSC on the Issue present for this

                                                         12
    m   a   4
Courb decision in thts cMI action.
           IV.   The APSC Defendants' Assertion 'That tha Doctrine o Resf
                 Judicata .Bars Corncast's Cause of M a n , Under the
                 Provkions o Ark. C d e Ann. 5 2835401, is a Specious
                               f
                 Argument That Has No Basis In Fact or Law, Because
                 Comcast's Clafrns for Refund Have Not Ever Been Fully and
                 Fairly Litigated by a Court of Competent Jurisdiction.
           Res]udfcafa has two facets: Issue preclusion and claim preclusion. Huffn
Aklersoa 983 S.W.2d       899 (9998). Under the claim precluslon aspect, "a valid ani final

judgment rendered on the merits by a wurt of competent Jurisdiction bars ar ither                     l

                                                                                                      I
action by the plaintiff or h b privies against the defendant OF h b pivies on the ame
                                                                                                      I
                                                                                                      !
claim or cause of action." Coleman's Sew. Ct. Inc. v. FederaI Dewsit Ins. Coq
                                            r                                              .I   55
                                                                                                      t
                                                                                                      I
                                                                                                      t

Ark. App. 275, 935 S W 2 d 289 (1996).            Res judicata batx subsequent hi Suits

                                                                      .
regardless of new. legal issues or additional remedies being raised. d R8S fur cata                   1




applies where the party against whom the earlier declsion fs being asserted had            L   full
and fair opportunity to litigate the issue. Whtte v. Grega Aarlc. Enters., 72Ark. App 309,

37 S.W,3d 649 (2001). T h e purpose of the res judicata doctrine is to put an e d to
Iwgation by prevmthg a party who had one fair trial an a matter from re-litigatln the

matter a second the.' Brandon v. Arkansas Western Gas Co,,76ArkApp.20 I 6 1
S.W.3d 193,199 (Ark, App. 2001) (citing Moon v. Maraueq, 338 Ark. 636,999 S. 1.2d

678 (1999). Generally, resjudicata bars relitigationwhen: { the first suit resulta in a
                                                           I ]

final Judgment an the merits; (2) first suit was based on proper jurisdiction; (
                                 the                                           :               the
first suit was fully contested in good faith; (4) both suits involve the same clalrn or c use

of action; and (5)both suits involve the same parties or their privies, Gurley v   -   M
                                                                                       8



                                                                                                      t



                                             13
92820524
                                                                                                      !
313 Ark     12,424,856 S.WSd 616,022 (Ark. 1093).
        5         Res Judicafa Does Not Bar a Judielal Court from Hearing a
                  Taxpayer's Separate Cause o Action, When There Has Been
                                              f
                  No Previous Judicial Proceeding on This Issue.
                 A.   *   Res Judicata Does Not Bar Judicial Courts from
                          Reviewinn Claims Prevlouslv Revlewed bv an
                          Adrninlstrative Arrencv
        P ansas courts have held that when an administrative agency acts judiualfy or
quasi-ju    :;ally, res jtrdrcata may bar a second proceeding involving the same questfon.
Howevc      the courts have only discussed the application of res judicata in the context of
an adm strative agency reviewing a prior decision of the same agency. In faact, o all
                                                                                f
the cast    sited by Defendants in theIr brief, none relate to ihe ability of a judicial court of

law to h    r a matter where the dahs andlor the issues have previously been decided
by an       ministmtive agency, without there fater being a judicial review of the

adminia     tive agency's decision. Rather, all of the cases cited by the Defendants relate

to either   e ability of 8 Judicial court to hear a matter where the claims amflor the issues

WW8   pn    ousfy decided or reviewed by another Court or the abjlii of an adrninkativ8

agency      hear a matter where the claims and/or issues were previously decided by

another     rninistrative agency.

       lr orth Hills Memorial Gardens v. SimDson, 238 Ark. 184,381 S,W.Zd 402 (Ark
19641, t        Supreme Court of Arkansas held that there was. no reason to apply res
judlcak     )   bar Rest Hills Memorial Park, Inc. from bringhg a secund appllcation to
establlst       cemetery. After having been granted the permit on-the semnd apptkation


                                               14
 2 m
9m




                                                                       QO I067                  AArl
                                                                                                       580
by the Cemetery Board, another nearby wmetery owner brought an appeal in w t         the

chancery court upheid the decisfon to grant the application of North-Hllls Memo&     lark,
                                                                            I
Inc.   M. Jn rejecting the application of res]udlcata to h e second cemetery appl    :ion,

the Arkansas Supreme Court stated: '[tlhere is CK) good reason for applylng this      n
                                                                                     eI

an adrnlnistrative matter such as thls one." @., 381 S.W.2d, at 464. The St          me
Court of Arkansas found the public interest'in having a cemetery was more slgl       ;ant
than fha rigid application of res judicata to an administrative agency's dedsk        M*
Similarly, Corncast's interest in having erroneously ass&sed taxes revlewa

judicial murt of competent jurisdiction should weigh heavily in favor of not apply   res
Judicatato the ASPC's decisions attached to the APSC Defendants' Motion to D         IlSS.

If this Court were to bar Comast's refund claims from being heard, Comcast CIC       I be

required to pay taxes on exempt property forever. The application of resjudht        oes

not apply as forcefulIy to adminlstmtive agencies and this Court should nc lluw
Defendants a windfall o tax revenue in perpetuity, to which ad valorem taxe2
                       f                                                             ese
Defendantsare not entitled.

               B.    The Sumerne Court of Arkansas has Recounixed
                     m e Sound Policy Reasons Behind     Nbt ADDlying
                     Res Judicata as Forcefullv to -Admin#strafive
                     Auencies' Decisions as Judicial Decisions
        Arkanss' appellate courts have recognized that resjudicata does not apr      Mth

the same force to adrninisfrative agency determinations.      In Hamlltan v.   Ad    32s

Polfutlonand Control Commission, 333 Ark. 370,969S.W. 2d 653,657 (Ark. 19s           the

Supreme Court of Arkansas stated: "Our court has related, however, that         H    not




                                                                                     51
                                                                                     -8
i
    convim that all the t c n l rules Ihat make up the common-law doctrine of
                         eh w                                                              res
    judicata      odd apply with equat force to adminbtrative pmeedings' (citing North Hills
    Memoria Sardens v. Simmn, 238 Ark. 184,185, 331 S.W.2d 462,484 (1904)). The

    Supremc Court has Indicated its hesitancy to apply the rule of res judicata to

    administ ive declslons.       N                            N   381 S.W.Pd 462, 464 (Ark

    1964). f      appellate courf of competent jurisdiction I n Arkansas has decided the merits
    ofthe s ,tantheissues resulting in and attempt to apply the doctrine of resjudicata, in
           u
    a   situaff    where there has been an administrative      decision by   an admlnMative
    awncy,        id that decision asserting the appllcatlon of the doctrim of res judicata has

    not been !viewed 'bya court of competent jurisdiction.

            M sover, the Plaintiff asserts     that a red flag of cautlon appears    when an
    administ ive agency reviews and Issues a decision.on its own findings. A neutral and

    obfecffVE aviewing court provides the optimal potential to uncover the tnrth and to
    assess        'r and adequate Emedles to the partles.           The pn'mary purpose of
    admini&       ive adjudication I to allow for a more expedient method for settling disputes
                                   s
    than if e y matter was required to be heard in a court of law but offen at the expense
            l
    ofthe le! I formalities guaranteed under the principles of due process in courts of law.

    Since C cast has eliminakd from its First Amended Complalnt filed In %Is action, any
           c
    clalm re1     ng to an appeal from any administrativedecision by the APSC, thb question

    of whethr or not the doctrine of resjudlcafais appltcable In this case,as Claimed by.the
    APSC DI mdants, should b.e a moot point that does not support the Motion to Dlsmiss,
especlally since the Plainti has filed a First Amended Complaint in this adion.
           WHEREFORE, the PlaInW, Corncast of Lmle Rock, lnc., prays that this Cc

enter an Order denying Defendarrts' mnding Motions to Dismiss, that has been      '




has been joined in by at named representative Defendants, for the reasons st
above and In the Plaintiffs Response and Opposition to the Defendant's Mo
DIsr Iss-
    n




                                          Christopher D. Brockett
                                          Ark. Bar No. 2005192
                                          HATFIELD& SAYRE
                                          401 W:Capitol Avenue, Suite 502
                                          Uttle Rock, Arkansas 72201
                                          Telephone: (501) 374-9010
                                          Facsimile: (501) 374-1351
                                                                  0
                                          a s a h @ handsarkmy
                                          cbrockett@handsark.com
                                          Eric Tresh
                                          SUTHERIAND ASBILL & BRENNAN LLI
                                          999 Peachtree Street, NE    '


                                    '     Atlanta, GA 30309-3996
                                          (404)853-8579 Telephone
                                          (404) 853-8806 Facsimile
                                          Etic.tresh@sutherland
                                                              .corn

                                          ATTORNEYS FOR PWNTIFF




                                            17
92820524
                                     CERTIFICATE OF SERVICE
           I   gene G. Sayre, hereby &rtify that a COPYof the foregoing Bdef In Support of   -
Plaintiff      espnse and Opposition to Motion to Dismiss Fifed by Defendants Sarah
Bmdshi                                                                   n
               and the Arkansas Public Service Commission and Jolned I by Defendants
Rob Mr          and the Pulaski County Special School District; Defendants Gary Fletcher,
Mwx              of Jacksonville, Arkansas, and the City of Jacksonville,. Arkansas; and
Defend;         Debra Bucknet, Janet Troutman Ward, and Pdaski County, Arkansas has
this dab       en served by U. S Mail upon the following: .
                                 .
Ms. Kar        umett, County Attorney                  M . Robert E. Bamburg
                                                        r
Room 4                                                 Attorney for Ci of Jacksonville
PulaskI        inty Administration Building            303 N. James Street
2 1 Sor
 0             badway                                  Past MfiGe Box 5913
Littie Rc      Arkansas 72201                          Jacksonville, Arkansas 72078
 r
M . Jay        uette                                   Mr. Paul J. Ward
Bequeti        BIllingsley                             Mr. Kevin L. Lemley
425 We         apitol Avenue, Suite 3200               Arkansas Publlc Service Commission
Little Rc      Arkansas 72201-3469                     1000 Center Street
                                                       Post office Box 400 Lib Rock,
                                                       Arkansas 72203-0400
           c   ! at   Little Rock, Arkansas, on this




92820524
         IN THE    ~~         COURT OF PUL-SKI COUNTY, A M WAS
                                  2nd DMSION




V.                                    NO. 6UCV-10-1473
                                                                                        S
       REPLY IN SUPPORT OF SEPAR4TE DEFENUANTS BRGI)SHAW
         AND TEIE ARKANSAS PUBLIC SERVICE COMMISSION’S
                               AMENDED COMPLAINT
                  MOTIONTDD~~MHS

       Corn-      challenges its assessmenis by arguingthat its hhgible property is
exempt under A . C A 4 26-3-302.This argument was rejected by &wk Gas P@eline

Corp. Y. Ark Pub, Sen? Comm ‘n,342 Ark. 591,602-04,29 S.W.3d 730,736-37(2001
and two orders of the Commissioa &e Ex.3 and E ,C to Separate Defendants
                                              x
Bmdshawand the Commission’s
                         Motion to Dismiss Amended Complaint Corncast
failed to appeal these orders and cannot coIIaterdIy attack those orders through A.C.A i
    5-90
26-3 1.

                                     ARGulMlE NT

       On B motion td dismiss, the Court does not accept the cOndus6iy dlegrttions
proposed by the p1aintifE McKnney v, Cig o
                                         f    H hrado, 308 Ark 284,287,824 S.N d
                                                                                                   .- .
826,827 (1992).   The Amended Complaint only.allegestwo facts: (I) the Commission
assessed Corncast’s intangibleproperty; and ( )Corncast has appealedaco~nry
                                             2                            court

action that did not involve the Commission or Bradshaw as parties. Like the McKinnq

pIaintiffs, the remaining alleg.gatio&in the Amended Complaint are conclusory
allegations that Corncast’shtangCble property is exempt or that the Commission’s acti   IS


were illegal or mneous, The Court is required to disregard &ese VngIusoa JIegatic       1.




                                                                                             0 0 I I372
Cornat's Amended ComplsintPresents tbe Same ISSWE                 Failed
                                                   as C o m ~ t ' s
AppeaI and Would Usurp the Commbsion's Exclusive, Original Jurisdiction.

Corncast admits the Commissionbas exclusive, original jurisdictionover

st's assessments pursuant to Ark. Code A&      5 26-24-1 03. As part afthat
ye jurisdiction,   courts may review thecommision's orders w only          N
                                                                          un
before the Commission. 8outhwesfernBe#-Mobile@sfem,Inc. v. h m ~ ? ~
Service Comm 'n,73 hk. App. 222,231,413 S.W.3d 838,844 (2001); St. LOUIS-

                                                       r
ancisco 1pailwq Co. Y. Arkansas Public Sen. Commn 227 A k I 066,106869,
                                                ',

#.2d 297,299 (1957). The party challengingthe Commission's order doesnot get



The Amended Complaint is nothing more tbm an attempt to seek relief fiom the
                                                       . .
                        aAer
Ission's prior 8 s s e 1s Corncast failed to appeal puraitint to-sectioa26-
                sem1t

. In its attempt to evade the consequences of its failure to appeal, Corncast submits
icting arguments to the Court. On one hand, Corncast states "hk'Codde Ann 0
     ow not address the ex@     same subject matter as does Ark,Code Ann. 9 26-

      Plaintiffs Brief in Support of Response and Opposition, p. 8, On the diha
        states %e 'exempliveprouisims' of hk..Cde Ann, 5 26-3-302             are
         e issue raisedby Corncast in its vht Mended Complaint]." Id. at p. 9.

            er Section 26-3-302exempted Corncast's intangible property was the
               ission twice decided advmely to Corn&. See Ex.B and Ex.C to
                   mdshaw and the Commi'ssiori's Motion to Dismiss Amended


                      twice d e d that Corncast's &tangible property is not
    ough the Commission

                        02,Corncast states "no judicial cowt or administrative


                                      2


                                                              0 0 1'0713
agency has d e d on the merits ofCorncast’sclaims, therefore, this Court hasjurisdicti n

to d   e on C o k s ? s claims,”See P I a i n ~Brief in S&ot ofResponse and
                                               s
c)pposition, p,3. Even if the Commission had not yet decided the issue of wbctber
Corncast’sintangible property is exempt, the doctrine of primary jurisdiction suspen&
the judicial process until the C o ~ ’ s s i o n decided the issue. A W i n y. Cenfmphl
                                               has
Energy               r
. . Arkla, 365 A k 138,152-53,226 S.W,3d 814,823-24 (2006)           {affirming
                                                                              & :
dismissal for lack of subject matterjlin’sdiction);Cdhm v,*seogrrll MdSouth, I, 3

A k 190,907 S.W.2d 741 (1995) {same); McGehee v. M d S u h Gas do,,235 Ark. 5
 r                                                i ot                       1

57,357 S.W.2d 282,287 (1962) (same).

        Corncast &ks this Court to usurp the Commission’sjurisdiction by addressing I e
Same issue the Commission determined in two final arders (which Corncast failed
                        has
appeal), Moreover, Corncast asks this Court to abandon over a haff century of supreme

  precedent.and challenge the Commission’s orders mder a new evidentiaryrecon
COW

Corncast’s requested procedure is furher compoundedby t b fact that Corncast has            .
invoked the Commission’sjurisdictionregarding its 2009 assessment, and that
proceeding rem&       pending before the Commission. The issue ofexemption of

intangible pmperty is presently before the Coinmission in the 2009 appeal, and Comca
has failed to exhaust its administrativeremedies in that case.’ Such a procedurewodd
usurp the Commission’s
                    exdusive originaljurisdiction oyer CorncBst’sassessments.

        h m t to Swtion 26.24403, the Commissionhas exdusivejurisdiction over
the issue ofwhether a cable television company’sintangibleproperty is exempt under

                                                                                                 I
 Tbe domine of mhaustion of administrativemmdies is a wmrnon law doctrine and abasicrule of
administrative procedure. OldRtpttblieSur. Co. Y. McGhse,360 Ark 562,566,203 S,W,3d94,97 G  O        L
          rs
Conleast rsm that Section 26-35-901 must specificallyquire axhaustion of administrativeramediw
before thedoctrIne a apply. This is simply a misstatement ofthe doctrim.
                    n




                                                                                                         Add. -
                                                                                                                  587
n 263-302.The Commission's orders regarding this issue are now estabIished
ent for other cable television companiw raising arguments under Section 26-3-302.

20urt adopted Corncast"procedure, the COW would also usurp the Commission's

ction over this issue regamtingother cable television companies, This uslapation
 also consume other ciicuit courts' appellatejurisdiction of this issue should

T cable television companyproperIy appeal a Comrnissbn order pursuant to

R 26-24-123,     os Corncast should have done,
     Section 26-35-9OlCannot Create Jurisdiction, and a Writ o f Probibition is
     the Appropriate Remedy if Corncast's Amended Complaint is not Dismissed.

     This Court is wbolly without jurisdiction to waider Corncast's claims. Conicast
is Court to c a d t error by exmisingjurisdiction h order to cure Corncast's
 to appeal the Commission's odcrs. Corncast would lead this Court into error, and

i Court to take this path, the appropriate remedy is R writ ofprohibition.
 e

     k      T W Court d o a not have SubjectMatter Jurisdiction Under Section
            26-35-901.

     Section 26-35901 m o t create subject matterjurisdiction in this Court First,     .
12635-901 must yield to the specific appellateprovisions of Section26-24-123.

bun@ v, Brown Lmber Co., 90 A k 413, f 1 S.W. 2 I, 252-53 (1909); Ark. Op.
                             r          9      5                                           .
;en.No. 2004-354,2005 WL 313716 4 (Feb.~3,2005):Second;Section 26-31
mol p        t this Court subject matterjutisdiction.ovqan alleged flaw in an
nent. Muldom v. Martin, 103 Ark. App. 64,65,286 S.W.3d 201,202 (2008).
,,   such a claim must be broughr before the entity that has exclusive original
:tion.Id. The Court of Appeals reversed the circuit court for exercisingjurisdiction

missed the case. Id. Coincast's daims against the Commissionand Bradshhw are




                                         4
based entirely upon the Commission's assessments o f ~ m ~ c a s t , is beyond the
                                                               which
scope of Section 26-35-90 1

       Third, as Cumcast achowIedBes, Section 26-35-901 ody allows an a p p 1 fior
an action filed in county court. See Plaintiffs Brief in Support of Response and
Opposition, pp, 7 , l I; see dsu A v q w Jnc, v. Ward,Pulaski County Circuit Court No.t

          Chy Cum& 119 S.W. at 25 1 (appeal
CV-07-9779;                                                county court). While Comw

filed an action in county court, the Commissionand Bradshaw were ~ o t p ~ to that
                                                                            tk

actioa ( pp. 1 -3; 335 -3491, Fourth, Section 25-35-901 was recentIy amendedi
        R                                                                   n
1999 and is now limited in application to "actual and obvious mora on the lax bboks a

related records, w t such mrs being restricted to extension errors, erroneous ppertJ
                  ih
descriptions,.cIassificatioas,or listings,"See A C A , §§ 26-35-901(a)(3); 26-28-1 1l(c}.

Tbis limitationrejects the dicta in the Clay Cuunry opinion upon which Corn& relics,
Comcast alleges its intangible property is exempt.pwsumtto A.C.A. 0 26-3-302, but tl
argument was rejected i &ark Gas Pipeline Cor-.Y. Ark Pub. Sen. Comrn In,342 A
                      n
59 1,29 S,W.3d 73 0 (2000) and the Commission's previous orders. Corncast bas not

presented "actual and obiriow m r s " but instead relies upon legal argumentsh t were

previously rejected by the Arkansas Supreme Court and the Commission.

       E.      A Writ of Prohibition i the Appropriate'Remedy if the Amended
                                     s
               Complaintfs not Dismissed,

       Because the Cornmission has exclusivejurisdiction to assess cable television
                                 8 26-24103, a writ of prohibitionis appropriate
companies pursuant to Ark, Code b.

Corncast's claims are not dismissed. Centerpoint Energv, Inc. v. Milter Counry C h i i f

Court, 370 Ark. 190,202-03,258 S.W.3d 336,34445 (2007); also Infernational
                                                      see

Paper Co. Y. Clark Coun@ Cirrtuit Court, 375 Ark. 127,131-32,289 S.W.3d 103,107




                                                                                            Add*-   589
     f
escap the Commission’s
                    exclkivejrrrisdiction:
         This SqUareIy fdJs within h e exclusivejuri$ction of the APSC The             .
         respondents attempt to disguise their claims by labeling them RS common
         law tort claims, but this court must look beneath the labels’andinquire into
         the true nature of the complaint. , Tn doing so, it i dear &at the
                                                             s
         complaint ., is precisely the kind of dispute that should be decided by                 .
         the APSC.

370 rk,at 202-03,253S.W.3d at 345. The court grantedthe writ of prohibition. 370
              44,258 S.W.3d at 345.

         Looking beneath the labels and inquiring into its             nabre, the Amended
             is nothing more than an attempt to*appaI Commission’s earlier orders?
                                                    the

              ission has twice held that Corncast’s intangible property is not exempt under

                  . § 26-3-302, Comcast faded to appeal these orders but now wants tbis

                    the same issue for the same time period. This is a challenge to an

                    hodd be decided by the Commissionand appealed, if at all, through the
                       provided in Ark. Code Ann. 4 26-24-123.

         The Arkansas Supreme Court b also stated that, if ah appeal is not perfected
                                     u
                          t.   Ct,R 9, the circuit c u t never acquiresjurisdiction. J&MMubfle
                                                    or

                                 347Ark f26,131,60 S.W,3d 481,484 (ZOOl), Iffhecircuit
                                  case, a writ of pmhibition is ?heappropriate remedy. Id. The

                                  why a writ of probibition is nppmpriate in thissituation:
         It would be a waste of the, money, and judicial resources to require a
         party to firstproceed to tcid, and only then pennit an apped of the lower
         court’s decisionregarding itsjurisdiction over the matter-when that court
         never had jurisdiction inthe first instance.

                     .-
                     .

         url does not have to look far,The original complaint overtly attempted to appeal the
                                              s
               orders, Comcast only adopted i p e n t thepry in rqonse to the first moh’onto dismiss,

                                                   6


                                                                               00 I077
                                                                                                        590
I
    JL. Contrary to Corncast’s assertions, it cannot waste time, money mi judicid       mow^

    pursuing trial of B matter ofwbich this Court is wholly withoutjurisdiction. Jd.

           The C~mmission Bradshaw were not p d & to-thecounty hurt action. Set
                        and
    Ex.E to Sepsrate Defendants Bmdshaw andthe Commission’s Motion to Dismiss
    Amended Complaint; @, pp. 1 - 3; 335 -349). It is axiomatic that Corncast c m o t ad

    parties to its appeal of the counfy court action. See Ark. Dist. CL R 9. Corncast has no

    order to appeal fiom pursuant to Section 26-35.901 that involved the Commission and

    Brsdshaw BS partim. Thus, it i impossible for Corncast to perfect an appeal against h
                                  s                                                            !


    dtfendanfs when there is no judgment from which to appeal.

    U.
     T     The Commission’s R&gs are EntiHed i o RwJ&utu Effect, and Comm
           haa Engaged in Claim SptittlngThat is Prohibited by ArhnsasLmw. ,
           The Arkmas Court ofAppeals has heId that, when the Commission acts in its
                              t decision is resjardicaru ina second proceeding involving tht
    quasi-judicid,~ a p ~ ~ iitsy ,
    same question. &mdm        Y.   Arhnsm Western Gas Cu,, 76ArkApp, 20 1,2 lQ61 S.W.         I




    193,200 (2001).   The court articdated h e clear policy against collatedly.atlackhg
    Commission decisions: “Administrative resjudicaifl is utilized to prevent collated

    attacks on administrative agency decisions and to protect successfd p&      from

                          Id.
    duplicativeproc~dmgs,’’ Administrativeresjudicatn i ”especially appmpriate”
                                                      s
                           *        *


    when the Commission conducted a trial-type htming,’madefindings, and applied the 12
                                             o
    76 Ark.App. at 210-1I, 61 S.W.3d at 200.T counter this d e , Comcast relies upon

    North Hills Memorial Gardens v. Simpson, 23 8 Ark. 184,3 8 f S,W.Zd 462 (1964). The

    reason resjudicufa did not appIy in that case was because the board consided new fac

    in the second proceeding, as discussed i Hamilton Y. Arkansas Pdution ConrroZ&
                                            n



                                                 .. .
                                                  7


                                                                                    .          -   Add. -
                                                                                                            591
Eco y Cmm’n, 333 Ark.370,375,969 S.W.2d 653,656 (1998). Thus, Comcast must

PM
        Arkansas law is well establishedthat, when a party fails to appeal aa

adm iStrrttive decision, that decision is resjudicata as i the issue had been reviewed by
                                                         f
a co

        Appellmts did not appeal to the Supreme Court on the issue ofwhether a
        credit should be dowed. Since this issue was submitted to and decided
        advmdy to appeUants by the Commission the bar of resjudicata is
        invoked as effectivelya if the issue had been presentedto this Court.
                               s

MOA >kTire andRubber Co. Y, Bridkr, 259 A k 728,730 536 S.W.2d 126; 128 (1976).
                                         r
A fa    re to appeal the Commission’s orders solidifies application of administrative
                                   prior

resj    i’cala. Id. The cases are legion ?hatthe timely filing of a notice of appeal is

juris   ~ o n a land failure to timely appeal deprives courts of jurjsdiction. Eg.,E11fsy.
                 ,                                                                           -
Ark     SLT   Sfate Highwq Comm ‘n, 20 10 Ark. 196, p. 1; Craig Y Cwrigu,353.Ark 761,
                                                                .

777,    !1 8.W.3d 154,164 ( 0 3 .Arkansas law does not recognize an exceptionto @is
                           20)
rule.

        The Brandon courtalso noted that Arkansas law has long-prohibiteda party &om
Split. g B cause of action into two legal proceedings. 76 ArkApp. at 210,61 S W 3 d at

199.    uf this d e is violated, it is held that the adjudicationreached on the first action is,   ’




unde he doctrine of resjzidicata, a bar to the maintenance of the second suiL” Id, ’ h e
polic if this rule i ‘40protect those againstwhom sptit causes of action would be levied
                   s
from wing to defend twice and to protect court dockets from unnecmsary burdens.”76

Ark., p. at210,61 S.W.3d at 199-200.            .
        The Commission, actmg in its quasi-judicial capacity, has twice rejected

Corn tt’s claims regarding exemption of its intangible property. Corncast attempted to


                                               8    ‘



                                                                                                   Add. -
                                                                                                            592‘
I
    appeal these decisions but failed to do so. Corncat presents no new facts in the Amen
    Complaint;it just seeks to relitigatethe isslleof whether its intangible property is exeI

    Under binding precedent, the Commission's prior decisions are resjudicata to Cornca

    current daims'regarding intangible property. The Cornrnission's orders are protected

    h m &is form of collateral attack and the Commissionis protected from dupIicathe
    proceedings. Moreover, Corncasthas engaged in claim-splitting that is prohibited by i

    judfcafa. From 2006- 2010, Corncast pursued its claims tbrough Section 26-24-123

    before mVitchingits claims to Section 26-35-901 in response to ?hefirst motion to

    dismiss.
    XV.    . This Court May Consider Matten Outside Headings; the Grant of a M o f i
             tu Dismiss i Later RevipWed OD.fbe SunknaryJudgment Standard.
                        s
             Corncast states, Without citation t authoriq, that the Court cannot consider tt
                                               o                                           h
    exhibits to the Commission's and Bradshaw's motion to dismiss. Exhibits 33 and C are

    the Commission's orders rejecting Corncast's clainis; and both orders &c contained

    Within the Record upon which Corncast now appeds.(R, pp, 92 103? 119- 131),Ir-
    addition to seekingto exclude documents coutained in the Record, Corncast's asserlki
    contradicts established Arkansaslaw:
                                                                                                     '
            It is well settled that when a circuit court considers hatters outside the
            pleadings, appelhte courts will treat a motion 'to dismiss 85 one for
            summary judgment, &cause it is clear to this court hat the circuit court
            consid& wihibits outside of the pleadings in making its ruling, the
            dismissal is considered as one for summary judgment,

    Hicky v Gmdisser, 20 10 Ark. App. 464, p 3; Morgan R Turner,2010 Ark. 245, p. 8
           .                               .
    Travis Lumber Co. Y. Defchman,2QWArk299, p. 21. In B mse like this, which does 1 t
    involve the question of whether factual issues exist but rather the applicationof legal

    'The Record also conhhns the Commission's ordcrspecificallyholding that Corneast failed to file a tirr:   I
    110th a
         Of                     -
               p ~ d(. p ~ 107 114).
                     R      .




                                                                                                                  Add.-   593
d e s , e tppellate w r r simpry deknnines whtulk the appeIIee WBS entitled to
                     cut

Wgrr it as a matter of law. H k b , 2 30 Ark. App. 464, p, 4 Travis'Lumber,2009 Ark,
                                     0                      ;
299, F 11.
         Qrkmsaslaw is clear this Court may consider matters outsidetbe pleadings on a

motio to dismiss; the grant of the imtion is then reviewed on a summary judgment

S & I Additiondry, the Eightb Circuit has stated it is appropriate to considermaterids
 m .

outsid the phdings if these materials that mpart of the public record or if the materials

we ne ssar'lly embraced by the pleadings. Porous Media C r .Y, Pall Cop,, 186 F,3d
                                                        ap
1077, 179 (8th Cir. 1999).

         Ul the matters attached to the Commission's and Bmdshaw's motion to dismiss
are pu ic records of the Commission and county court that are necessarily embraced by

Comc     1
         '5   pleadig. Corncast does not dispute the accuracy bhese exhibits, and they
do no1 ontain facts that Corncast can contest, Corncast should not be permitted to

manld :Wesubject matterjurisdiction by setectively excluding important matters from

its ple lings.

         3ven if the Court limited its review to the allegations in the Amended Complaint,

&mi! 11is still appmp~ate.
                         Corncast alleges the Commjssion assessed its property in

2005 -   !W9. this Court to have subject matterjurisdiction, the Amended CompIdnt
            For

must 1 :nprovide tnrtbfuI allegations that Corncast has timely appealed these

assess ents pursuant to Ark, Code Ann. 9 26-24-123 and Ark DisL Ct R 9. It must also
have e xord of the procedinga before the Commission. The Amended Complaint
contai no such dtllegations and provides no such record, The Commission and

Bmdsl w r n i n h h that Corncast's exclusive remedy is through Section 26-24-123 rather



                                            10     '




                                                                                             Add.-   394
i
        than Section 2635-901. However, ifthe Court restricts its review to Camcast's
    .   pleadings, the Amended Complaintfails to contain any allegationsht Corncast S& s
                                                                         rt          I
        against the Commissionand Bradshaw in county court pursuant to Section 26-35-901.

        Likewise, the Amended Complaint fails to include a record livith anyjudgment involvk
        the Commission and Btadshaw as parties from which Corncast appesls p m m t to

        Section 26-35-901. While it is appmp~ate
                                               forthe Court to consider?heCommissionan

        Bradshaw's exhibits, even a restricted review limited to Corncast's pleadings atabfishe
        that dismissal is warranted.

                                            coNctusIoN
               This Court is wholIy without junkdiction over Corncast's claims regarding its
        assessments,The claims against separate defendants the Commission and Braashaw

        should be dismissed. L e i e any claim against any other defendant kgmding or
                              iws,
        dependent upon Comcah's assessments should dso be dismissed.           .
                                                    Respectfully submitted,



                                                    Arkansas Public Serrice Commission
                                                    P.O. Box 400
                                                    Little Rock, Arkansas 72203-0400
                                                    (501) 682-5879
                                                    kl eml ev&sc,state ,w,us

                                                   Attorney for Defendants Sarah M.Bradsha        1


                                                   and Arkansas public Service Commission




                                                  11     '




                                                                                                      Add-   595
..

                                                                                     ..
                       CERTIFlCAT& OF SERVlCE
                                                delivered to the follpwing parties

                               Eric Tresh
                               ,S
                               D-                ASBILL & B R E " , LLP.
                               999 Peachtree Street, NE
                               A h h , GA 30309-3996
                        .      eric.treshGbukrland.com




                               P.O. Box5913
                               Jacksonville,AR 72078
                               rebambmfiaol .COM




     apitul Ave., Suite 3200
     AR 72201-3469



                                      Kevin M.ILernley.




                                    12      '

                                                                - .
                                                                     FILE0 1WlfifO 1:
                                                                                    4
                                                                     Pat O’buim F d x k
                                                                        Ciim
            IN T€ECIRCUIT COURT OF PULASK3 COUMTY,ARKANSAS
                                     2nd DlVISION




S A W M.B W S H A W , et al.                                              DEFENDANT

    SUPPLEMENTAL REPLY IN SUPPORT OF SEPARATE DEFENDANTS
    BWSHAW AND THE m s A s PUBLICSERVICE comssrows
           MOTION TO DISMISS AMENDED COMPLAINT

        I-     Corncast challenges the right of the Commission to assessthe intangible

property of ceble television companies. This Court is wholly without subject matter

jurisdiction to adjudicate this issue. See Brief in Support and Reply in Support of

Separate DefendantsBradshaw and thc Arkansas Public Service Commission’sMotion           ’




D h k s Amended Complaint. As part of its improper challenge, Corncast seeksrelief a

behalf of %It other similarly situated operators of cable television systems in Arkansas.’
See Amended Complaint at50,52,54,56,61, and 62,

       2.      Fdcon Cable Media, LP,Fakcon Telecable LP,and Interlink

Communications Partners, LLC, &/a Chartw Communications (colItctively “Charter”}

i a cable television company assessed by the Commission. Like Corncast, the
s
Commission assesses Charter’s intangible property,

       3.      On October 6,2010, Charter properly appealed, pursuant to A.C.A. 8 26-
24123, a final order of the Commission affirmingthe assessment of Chmter’s intangiblt

property. Set! Charter’s Notice of Appeal, attached a Ex.k
                                                     s
       4.      The Commissionorder from which Charter appeals hoIds it is proper for
the Tax Division to assess the intangibie property of a cable teIevision company. See

Docket No.09-1 13-TD, Order No. 10, attached as Ex. B,
                                                                   B b 4 J 601-M W
                                                                      b
                                                                  G C I IT
                                                                  C O ~ OFT LIW V !
                                                                               ROGK
                                             1     ’              WI$KIGO     10113126
                                                                   CIRCUIT COURT
                                                                                   nnir
                                                                                             Add. -   597
         .     The issue ofwhethertbe Commission may assess the intangible property
of aci   B television campany is now properly before the Third Division.        d
                                                                           See i .

         .     The Third Division, not the Second Division, cumnay has subject matter
jurisd   on to determine whether the Commission may assess the intangible property ofa
cable    :vision company.

         I     Charter’s proper appeal pursuant to A.C.A. 3 26124123 demonstratesthe

Pope     .ocedure for appealing Commission orders regarding the Tax Division and

         emonstrates this C o w m o t , on jurisdiclional grounds, adjudicate this case.

                                             RespectfuUy submitted,       -,




                                             Arkansas Public Service Commission
                                             P.O. Box 400
                                             Little Rock,Arkmas 72203-0400
                                             (501) 682-5879
                                             (5011682-2957
                                             kl emlev&sc.state. w.us
                                             dhelt&lasc.state.ar.us

                                             Attorneys for Defendants Sarah M.
                                             Bradshaw and Arkansas Public Service
                                             Commission




                                            2
                              CERTIFICATE OF SERVlCE

        I certify that B copy of the foregoing has been delivered to the followingparties
by electronictransmissionthis October 13,2010:
Eugene G. Sayre                       Eric T e h
                                            rs
Christopher D Brockett
              .                       SllTHElUAND, ASBILL 62 BRENNAN, LLP
HAVELD & SAYRE                        999 Peachtree Street, NE
401 West Capitol, Suite 502           Atlanta, GA 30309-3996
Little Rock, AR 72201                 eric;tresh(iilsutherIand.com
psavreGhn dsark.com
C    h    M    W sark.com


Karla Bumett                          Robert E Bamburg
                                              .
County Attorney                       City Attorney
Pulaski County Admin, Bldg,           303 N.James Street
b o r n 400                           P.O. Box 5913
201 South Broadway Street             Jacksonville, AR 72078.
LittIe Rock, AR 7220I                 rebamburn&ol.com
kburnett@co.pulaski.m.us

Jay Bequette
Bequette & BilliigsIey
425 West Capitol Ave., Suite 3200
Little Rwk, AR 72201-3469
jb e w ettembbnal aw. corn




                                                                                                    I
                                                                                            Add.-       3 9.
AS PUBLlC SERYICE COMMISSION                                                APPELLEE



con Cable Media, LP,Fdwn TelecabreLP, and Interlink Communications Parheq

I   Charter Communications (hercinak "c3barter" or "Appellant*),by and W u g h their

snd pmlrant to k k Code Ann       4 26-24.123 hereby gives notice of tbeir appeal of
              o
10 in Docket N .09-1 13-TD tc the PuIaski Cam@ C i d t Court of k State of

Purmantto h k Code AILh 5 26-24-123@](2), AppelIant~t~%~
                                                     as follows:
     NATURP, OF T'IQ3 PROCEEDINGBEFORETHE CQMMISSZOH AND
         m mCATION UFOBIDEXI C0MPLAl"D 0F
      I l i a is ap a p p l ofthe deemed denial ofCbartcr's Application for Reharing of

hIO of &e Presiding OEcer of the Arkansas Public S m h C o d s s h n dated June

fd-       NO. 13-TD-
             09-3
      Tbis i a conmSidated docket consistipg of
           s                                            Numbers M-O%TD, 07-090-
2-m,and 09-064-TDm d ptrtainingto &e prop@ taxyears 2006 through, and
!W9.




                                                                                                   -
                                                                                          Add. -
         3.    Charter is engaged in tbe business of provXng d l a teIcVision Seryices to

subscribers hvarious countits inArksas- Charter owns reaZ and personal property located
within the State ofArkansas for use i the ordinary course of i& cable telwisim business.
                                    n
         4.    For tach ofthe property tax y m 2006 through 2009, Charta timely f l d its
                                                                                 ie

h u d Ad Valorem report to the Tu Division witb rc5peGt l its property in Axkamas without
                                                         o

including in its                                                   ~~e
                   w~orem e n t t h e v d u e of charter’si n t m ~pemdproperty.
                        m

         5.    ‘Without any chaage in law or regulafiqns, b g b h g i 2005, the Tax Division a
                                                                     n
the h - k a u s public Seroice Commi&ori fiereiaaffs the “Tax Division”)began to include the
                ~~

value of intapgiblc property i tbc ad v a l o m tax b a x of cbarttr’s &le telaision business
                              n
resuItingin si&Scantly higher overd =sments         and uurepndingly higher d.vdorem tax

bills,

         6.    Notwithstanding fhe inclusion of infangiblcprop-,    t eT a IDivi~io~’~
                                                                     h             vaimtic

and assessment for each of tbe property fax years 2005 through 2009 exceded &e true aad full
or actual market vdue of Cbartcr’s pmpeay Iawfdly subject to vaIudon and assessment.

         7
         .     For each ofthe property tex yt=m 2006 though2009, Charter timely filed a         .

Petition to the Arkansas Public Service Commission
                                                 @hweinaftes “APSC’) r p t h g the
                                                                   p

a s m e o t s and d vdarun tax bills.

         8.    Pursllatld to Docket N . 09-1 13-TD M a N o , 1, the APSC consolidated eaeh of
                                     o
the pelitions for the propewta years 2006 through 2008 &CetNumben           06-094-Tb,0749(
T,                          into
 D 08-102-7D, and 09-064-TD) the R ~ O V C
                                         styled docket, 09-1 13-TD.

         9.    Appellant fZed a Cawlidated Petition fbr Review of 2OO6,2007,2008 and ZOO!

Ad Worm Tax Assessmmts on November 30, ZW 9.




                                               2
           I       In Docket No,09-1 13-TD OrderNo. 10, dated Jw1t21,ZOlO, tbt APSC affrmed
the Tm     ivkion’s 2006 - 2009 tax assessmentsand Charter’s petitions for miew of its 2006 -
20W n ?cationsof asss,smentwere denied and dismissed.
    i
           .       Pursuant to OrderNo.2 @esigPation Order) dnted November 6,2009, OderNo.
I W : lbd order of the APSC ou July 3 I, 2010.
O    the
           .       Charter h   d y f l d an A p p l i d for R e b h g of Mer N . IO w Au@ 9,
                                    ie                   ~                    o
2010.   ’ tb no action taken by the AFSC within a 30day period after filing tbcptition for
rehd           dcpEfitjm is deemed d w i d See A k Code Ann,5 23-24221d).
                                                r
           ,       charterMmfo appeal OrderNo. IO andtbcdeemed dm-d ofjtsAppli&*on
for Reh h g to the C h i t Court ofM s i County, Arkansas.
                                    ak
                          SONS wffy ORDER NO.i o 1s ~ W F U L
           .       Appelraat respectfully submits &at OrdwNo. 10 in h & ~ 09413-TDis
                                                                           t

unlawfi    or the folhwhg reasons, a more fully set forth i Charter’s Applieatian far Reheating
                                    s                      n
ofJ u t    ,201 0 Order of Dismissal:

           I       OrderNo. IO is d a w h l in finding that &ark GGTPipeline Carp Y. Arkonsas

PUbZiC I   V ~ C Comntisslon,29 S.W. 3d 730 ( r 2OOO~OZark
                 B                           Ak          GaS’),is binding precedent in

this aeti bccaust, lmlike the pipehe company in Ozark Gus, Charteris not a wrnpDy listed in
Ark. CE        Ann. 4 26-26-1601, d is not B compaay for which the Tax Division i authofized t
                                                                                s             o

include :value of hta&%Ieproperty into the p m n d propern fax basR
                  ?he statutory exemptionfor htmgible personal proptrty tmdcr Ak Code Ann, 5
                                                                               T
                              a
25-3-30 pcXeally preventsthe T x Division h m was;nti! thevalue ofintangible property
fbra c3        television provider wch as Charter.




                                                     3




                                                                           00 I089                Add. -
                                                                                                           602
            7
           1.      ordm NQ.10 is Unl~whd              that Order# I3 bOM197-TD C O ~ M ~ S
binding precedent in this case under the:doctrine of stare decisis. fhKeis no authority in
Arkansas boldiig that the priaciple of stme decfsfsi cmrolling i administrativeagency
                                                    s          n
decisions.

           1E
            .      Order No. 10 is uplawful because it ignores thc unambiguous statutory language

of A k Code Arm. 8 2626-16 6and f i d s that &is -*on
                          0                                    is modified hwrrdy. This fidinf

is emmom becaw i violafa longstmdingrules of statutoxy consfmction, and is rebuttedby I
               t
p b hm           g Ofthe codihtion         Of subch~@e~ OfCbaptW 26 Of Etle 26 OfArkansas
                                                     16

Code, and A k Code Ana Q 26-26-1606 in particular. Absent a codifidon m Ordm # 10
           r                                                           ,

contains no other grounds for holdiagthat Cb~cr'sintangible p r o m is required by m          e tc

be v   b     d under fhe provisions ofAtk.W       5 26-26]
                                               e h.       606.

           19.     Order Nu. 10 is udawfuI in W i g that Subchapter 16 of Chapter 26 of Titlt 26

of M m s a s &de L ' m c o m p ~ s includes cable television ccimpanies" Subchapter 18 of
                               md

Cbapter 26 ofTitle 26 of Arkansas Code mefsly charges theTax Division to make ori&d

a s m m t s of the property of cable television providers but ~ Q E Snot provide lhat cable

televisbn providers are subject to the tmhg provisions of Subchqttm 16. fither, Subchapter I

chargcstbt Tax Division with tbe duty to "adoptsuch d e s and regulations BS are necessary in

order to make original -mt           of all property, b ~ t h and pcmnal, wed by cable
                                                            rra3

tetwision iq~,temsn this &at+=* The TaxDivisionbas failedd;a formally adopt any TUIH
                 i                                                                under

Subcbqter 18 that are properly appEcabIeto cable televisionprovidm a thus has abused its
                                                                   d
                                                                   n

Iulcmaking authority. F~mthtr, Tax DMsioa bas h m c t i y ' a n d unlawfully qplied the
                             he
taXing rules of Subchapter I 6to cabIe telwi5ionpmVidm such as AppeUmL




                                                  4

                                                         .-.    .
0.           o
      Order N . 10 is unlawful in W i g tbat the Tax Division did not violate the

1s of&    Code b n . $26-24106 d e n it mended &€IC property tax reporting forms to

le inclusion ofthe value of the intangMe propwty ofa &le service pmvjder.      Ark
a 5 26-24-2 06 reguireS the Tax DiVision to o b t h the advice and opinion of tbt
G e n d in determiaing tbc proper constmction of B s wy seetion, i this c a ~ t
                                                    a
                                                   t r           n            Ark.
n 8 26-26-1605. Ihe Tax Division perfmnd no such codtation prior to amepdhg
 .
xty t forms (which h;td the resultofchmgingtbc t y p of pmperty subjectto ad
    m




                                       5
I




    appropriak

            23.     UrderNo. 10 is unlawful inij~~dhg ChOrkGas p d u d e s Charter fmm
                                                   that

    premnting widcnnw showing the value of aporiion of cbartcr’s property fur 2009 BS &abEsbe

    bythe November 11,2008 purchase Agreement. Tbe value ofthe cable systems sold by Chart
    wrt estabIisbed at the time ofthe exmution of the p m b agreement, which was during the

    p m p t y tax year, as opposed to Wig establishtd after the property tax year ELS me &e facts in

    Ozark Gas.

           24.           o
                   OrderN . 10 is UnlaWfuIi tbat the APSC‘s dassific&on of Charta EISa
                                           n
          taxablemder Subchapter I of Chapta 26 of Tiff e 26 of Axkansas &de (whose
    wrq~any                       6
    intanpile personal property is subject to ad v d o m tax) reflilts in ~no w d u d i o n i excess (
                                                                                            n
    the me and fdl or actual fair market value of Appdlaat’s propwty md eET&u&s          a taking of

    Appeflmt’s property without due process oflaw in violation of Article 16,Q 5 ofthe Arhsas

                                Amenbaent of tbeUnited S t a b Canstitutioa Additionally,
    CoaStitutionand the Fo~~rtemfh

    Order No. 10 is m h f u I in that the APSC’s tre-nf     of Charterviolstes Chsrtcr’s right to

    qual: pmtcction under Article 2, Q 3 of tbe kkanses Constitution and the Fourteenth

    Amtndment ofthe United States Constitution.

                                        esw
           WNEREFORE, for the foregokg r a o as well RS tbose in Appellant’s Application ft
    &bearing, Appellant requests that tbe PulasE County Circuit Court set aside OrderNo. 10 and




                                                    6




                                                                                oa I 092                 Add.-   605
                                SUTHERLAND ASBILL & B R E " U P
                                999 Peachtree Street, NE
                                Atlanta. GA30309
                                (404) 853-8579 (tefephane)
                                (404) 853-8806 (facSimire)

                          By EricS.Tmh
                             Jonathan k Feldman




                                DOVER DlXON H O W PLLC'
                                425 Wtst C~pitol  AYE,Suite 3700
                                Little Rock, AFt 72201
                                (501) 375-9151
                                (50 1) 375-6484                R


                          By:
                                Mid14 0 Parker
                                       .
                                AFkBarNo.74116
                                Wlliam C.Bird Ill
                                Ark. BsrNo, 05149




fiche1 0. Parker, hereby certify hat a wpy of tbe foregoing Notice of Appeal
d on fhcbclow&signakd parties by U.S. Msil, first-class, postage prq~Gd,
                                                                       this    %-
o h 201 0. -

VinULdey
cans89 Public Stnricc Commission
ffAttorney
IO Center Street
1. Box 4Ix)
tle Rwk, Arkan= 72203-0400




                                   7




                                                          0 0 1093                  Add.-   606
I




           The T x Division ofrhe Ark-
                a                             Public Senrice CommbsIon           DivIsIm or
    respondat) is the state governmental agmy & e by law' with making M m u d
                                               wd
    nssessmeat for ad   v d m m tax pwpozs of the reaI and personel propecty of Viai~us
    business and c o m ~ l aentitlcs owing such property located and dohg business in the
                             l
    Slate of Arkansas. Among the vlviaus business and commercial mtiiks whose       propefiy
                   u
    is subject to m d assessmmt by the T x Division i the cable lelevision induary. This
                                        a           s
    duty and pwm of assessment o m the property of a b l e television enterprises is

    ~@fidly given to iht Tax Didsim by Act I 5 of 1975 of the Acts of Arkansas,
                                            7
    ccdified =Ark. Code Ann. 5 26-24-103, which reads:
          me Arkansas Public Service Commission shall have the fill power and
          authority in the admtnistratim ofthe t u laws of this state to have the
          exclusive power of d@nd      mssessment of both red and persons! property
          used in the operating of d e r pipeline, mlroad, street railroad, express,
          sleeping car, and intercounty bus line companies, and dl tdepph,
          telephone, e ? d c power, mblc television, heating, gas, water, water
          transportation, toll bddgc, or ferry, intemrban, or ocher similar companies,
          associntions, or corpomhs, cornmpnly known RS Utilities, doing
          business or owniag p p d y in this state (emphasis suppIM).




                                                                          n n I nor;           Add. -
                                                                                                        607
...
      I




           d
          te
          ~ 8 1


          ah
          Pm
          and

          wel

          Div

          resi


          pub

          asst
          con
          200

          200
                      intangible personal         in thwe assessments is C ~ R C Q U S contrary to
                                                                                     and
                      r a l s contends that the Tax Division’s method of asmstnent of bpth tw-~giibk
                              ~
                         personal:pmpery is mcmeom and conmy ta law.

                  The issue of Indudon of tntmgible personal property in the assessrrsent of cable
                                was also raised in In re Compasr CuHe CPrporatIov o LWe Rock
                                                                                   f
                                       On August 24,2006, Chma Eked thc Commission to hold




                                                     2




                                                                               00 1 0 9 5              Add.-   608
3




    Add. -   09
led i hsprepared testimony, Both partiw submitted post-hdng briefs.
     n
 Charta armcs that ik hmgiblt personal p p d y is exempt Born ad valorem

on, relying upon Ark. Code Aflh   5 26-3-302   for   this pmpositIon. The hhas




the nnddgned Admidstralivt: Law Judge,

 The issue of whether the value: of htangibIe personal      proptrty   iS properly
lablo in a able teledsion company's amud assessment by the T x Division under
                                                            a                        .


                                   4




                                                              0-0 IO97                   Add*-   61Q
Add, -
.-
 I




     r of.   . corporatio~t divisions M 1 take into considerationthe value of 41h
                          k
     r of thE company 83 8 unit, wherher all or only 8 peut of it i s within thi statav

     I&   Arm. 8 26-26-16(15(~). When apply in^ the unlt method afvaluatiun, &e Tax

     I hag    the option to apply one or more aeeeptod valuation mothdologla
     sd by statute: (1) the book value method; (2) the stack and debt method; and 0 )
     lme metbod. Ark. Code h n , 3 26-26-1607; Arbwus Hecitfc Cmperuthe, 301
     177,818 S.WA at 938. The Tex Division is directed to 'Wrlafn tha d u e of




                                        6




                                                                    00 I
Add.-   613
Add. -
cumply wlth Ark Code Ann. J 26-26-1610[dX2)(A}for the pcm 2006,2007 or 2008,
but Charier taises legal mguments for the ppasjtion that its tax= pdd for ihem pm
should be waskiercd paid d e r pmtm by opmation of law. The mdersiigaed
AdminjsWive &aw Judge rrtakes no determination E to the me*           of Charter's Icgd
prgmem and a d s the analysis oftbis issue on the factual frading that Chwter did not
pay    t
      Is p r o m   taxes   under pot&   I L ~prescribed:   in Ark. Code A m Q 26-26-
161Qo(2)(A) for the years 2006,2007 or 2008.



                                          9




                                                                     0 0 1 IO2            Add. -
                                                                                                   615
I




    nC




         This is not the trpe of Inconsfstmt pasition qr reliance thereon        thc undersigned
         inisfdveLaw Judge a contemplated by the d d a e ofjudicial estoppel, Because
                            s
         ‘w Divisiun fiiiIed to establish the third element of judicial estoppel, M s dDctrine is
          t
         phbfeto pmt Charter‘s claims.

           Charlei asserts violations of Article 16,   0 5 of lhe Arkansas Smte ConsliMun
         ihe Fourtmth Amendment ofthe Wnited Skies constiluti~n
                                                              havt arisen -
                                                                          b                   of
         ‘ax Divisbn’s Inchding Charteras a cable teI&sion system in the scxrpe of Titk 26,




         by Chmer to support ifs ronstitutional arguments asc &@rd        Y.   Pue, I65 US. 194



                                                 ID
Add. -
I

    m e y s and admI&hah law j d greatly mhdmizjng i u eliminating the
                             uw                     f d
    'or the Attorney Mto p x i d e legal advice to thc Cmnmiian. Tbls             IB
    wd by the fact L a t dho@ h m 1 y the Anorney G a d , when notified wid

    I sometima parlicipated in Commission T x Division pmcawlings in past years,
    ,                                      a
    torney General In recent years typkdfy does not Intcmme or otbemise render
    IS   In cases   involving the Tax Mvidon.     The uo&erSrd AdmlaIstrative law
    Lakes adminishalive notice of this ft Indeed, the Attomcy Oenual couId have
                                        a.
    ned in this hckdJf he had so desired, but the Attorney &era1 has chosen not lo
                               s
    ne or to ophc OR the imes A & in this Docket, The absence of lhe Atlwncy
    t in this Docket or his opinion do= not dM&h or otherwise alter the
    l

    ission's duty of rrrtninistwing slate aix laws,
    WEREFOW from the petition, pIeadhgs, briefs, evidence and all other matters
    rd taken into consideratioa, 3 make the folowing findings of fact and c~ncIusi0ns


    1.




    2.




    3.




                                          12




                                                                  U O I 1135            Add. -   18
4.


5.




6.



.
7




a.




      Pipeline Cup.    Y.   Arkansas PubZk Sew. Conlm'n, 3 2 Ark. 591, 29
                                                          4
      S.W.3d 730 &M1D).
9.    The T x Division properly included Ih8 value Of Charlds intanflible
           a
      ppcrty in the ZOM, 2007,2008 and 2009 ud valwenr h x BsscssmFnt.
10.   The T x Division has comctty Interpreted mi a p p W unit VaIUaliun
           a
      theory and mtthoddogy of hkansas statutory law in assessing the
      prnperty   of Charter for rhe years in question, 2006 - 2#9; and tha


                                 13




                                                        001 I O 6            Add.-   f   1s
11.




12.



13.




14.




15.



16.




      14
      lTB, THEREFORE, ORDERED that tbc Tm Division's 2006,ZM17,2008 and




Secretary ofthe Commission
1                 IN THE CIRCUIT COURT OF PUIASKI COUNW, ARKANSAS
                                   S€COND DIVISION
    CUMC 3T OF LfTTLE ROCK, INC.                                                    PLAINTIFF
    v.                                  Docket NO. 60-CV-IO-?473

    SARA1 M. BRADSHAW, in her ofRclal capacity as the
    Dlrecta of the Tax Division of he Arkansas Public
    Servia kmmission; ARKANSAS PUBLIC SERVICE
    COMM SION; DEBRA BUCKNER, in her ofidal
    capacil as the County Treasurer of Pulaski County,
    Mans i; JANET TROUTMAN WARD, in her omcia1                          FILfD 1l/w/f# 10:20:21
    C a p a C H as the County          Assessor of PulasW               pat O'Brim Pul-ki C i r a i t a r k
    County Arkansas; and               PULASKI
    ARKAb AS; ROB MCGILL, Acting Superintendent of
    the Pi iski County Special School Districf: the
                                                    COUNlY,
                                                                               &
                                                                               /
                                                                               y
                                                                               \
    P U U S I COUNp( SPECIAL SCHOOL D!STRlCR

                                                                                         iu i
                                                                          i niti i iniiin~iwi1 1iiitHII
    GARY 'LEI%HER, Mayor, Crty of Jacksonville,
    Arkans :;and ClWOFJACKSONVlUE,ARKANSAS;
    (ah In tt ir official capacities, and as representatives of          &&l&l473             W
                                                                                    68b60Im I U
    a Defer ant-class of sirnllarly situated counties, d i e s
    and sc rol districts, whereh ad valorem taxes are                                       v
                                                                         CMCRSTLIrnF BOCK SR 11 PW
                                                                                M:
    assess( I and levied upon the real and personal
                                                                         pwfla 1112312610 Ik28 WI
    P D P * if cable televiskn operators fbr the support of
                                                                          RU
                                                                          I I
                                                                         CCT COURT               Im
    such cc nties, cities and school districts)
                                                                             DEFENDANTS

    PIAI" FF'S MOTION FOR RECONSIDERATION OF THE COURTS ORAL RULING
      ANC tEQUEST FOR RULING BYTHlS CIRCUIT COURT ON ALL CAUSES OF
     ACT IN ASSERTED 6 Y THE PLAINTIFF IN KS FIRST AMENDED COMPLAINT

                   Comes now the Plaintiff, Comcast of Little Rock, Inc., by and through ifs

    undersi idcounsel, and does respectfully move this Circuit Court to reconslderthe oral
    decisioi *eendered the close of the hearing, in open Court, on November1I 2010, on the
                     at

    Motion:    D Dismiss PfaintifPs First Amended Cornplaint' and, firrther,to consider and rule


           1
                 e two Motions to Dismiss the Pfalntlffs Flrst Amended Cornplalnf were filed
    herein 1                Public Service Comrnlssion and its Tax Dlvislon's Director, as
    Defend                  Pdaskl County, Arkansas Defendants. These h ~ separate
                                                                                o
    Moth                          First Amended'Complaint were formallyjoined In, and
    adoptet                          Special School District (PCSSD) and City of



                                                                                      *
                                                                          nnt    lfl9
                                                                                                Add.-         6
I   upon     of the separate causes of action asserted by the Plaintiff in ifs First Am1 Jed
    Complaint {w-hichcauses of action were            covered by &her of the a h v e refer

    Motionsta DIsmlss FrtAmended Complaint}. As groundsforthis Motion, the PIainl
                       is                                                                     md
    its counsel do tespecffully show this Court, as follows:

                  1. I the Plaintiffs First Amended Complaint,
                      n                                              * the PkintiR has as     ted

    multiple and separate causes of actlon. These separate causes of action Include:
                  A.       ClaIm for Refund o Illegal and Unconstlt~tlonally
                                               f                                 fmposi Ad
                       '
                           V ~ Q ~Taxes. Claim far refund of ad valorem taxes emnr AAY
                                     W I
                           paid to the Defendant Treasurer of Pulaski County, Arki iaS,
                           because of the Inclusfonof 'exempt' Inhgible personal prop Yjn
                           the value of the Company's personal property for ad vi am
                           assessment purposes, pursuant to the pmvishns of Ark. C d ,nn.
                                                                                    ct
                           § 26-35901. (See fhe precatoryParagraph and ParagraphsI an ,       1

                           44-66of the Plaintlffs First Amended Cornplaint); and
                                                                                                     i

                  8.       lllegat   Exaction of Ad Valorem Taxes Illegaly                    ind    :
                           U n c o n s ~ t l o n a Imposed Upon the Company's "Ex1
                                                   l~                                         Pf'
                           JntangibJe Propem. Illegalexaction cause of actlon seeking I       Jnd
                           of ad valorem taxes paid (or deemed paid) involuntarily 1          the
                           Defendant Treasurer of Pulaski County, Arkansas, and Inju          live
                           relief ag3hst further illegal and uncondtdonal assessment          the
                           Companvs'exempr intangible personalproperty.(See, the pre           0
                                                                                              : v
                           Paragraph and Paragraphs 1, 14, and 72-77 of the Plaintiff         7rst
                           Amended Complaint).

    Further, the Plaintiff requests that ihjs Court make a clarification of the affect of i   3ial

    ruling on these two Motions to DIsmlss PlalntiWs First Amended Complaint, by:

                  C.       Umitatlon of Ad Valorem ,Tax Years to Whlch the Orc Of
                           DIsmissaI Applles. Clarifying the Court's oral ruting grantli the


    Jacksonvllle, Arkansas Defendants.
            Besides the statutory Claim for Refund of Ad Valorem Taxes and the
    exaction" causes of action described hereln, the Plaintiff has also asserted other a
    muklple causes of action fm ( I } a Declaratory Judgment, ( )violatfons of the Fed4 I1
                                                                 2
    and Arkansas Civil Rlghts Acts, as well as (3)the statutorily and consMtbnally bs 'd
    causes of action set out, separately, In Paragraph 68 of the Plaintiffs First Amendl
    Complaint.
                                                -2-



                                                                                                     !3
           dismissal requested by the two Motions to Dlsmks Plaintiffs First
           Amended Complaint filed on behalf of h e Arkansas Public S e w h
           Comrnisshn and the Directoroftheagency'sTax Dlvlslon, and bythe
           Pulaskf County Defendants, so as to indicate that such ruling applles
           only to the PlafnnttWs challenge to the APSC's assessments forgnbL
                                               -
           the ad valorem tax years of ZOO5 2008.

    A.     REFUND OF I L E G A L AND UNCONSTlTUTIONAL
           AD VAL.OR€M TAXES THAT HAVE BEEN
           ERRdNEOUSLY ASSESSED AND IMPOSED UPON
         . THEFIAlNlJFF.
    2, The assertionthat the PlalntiffI entitled to a substantial refund ofthe ad
                                      s
                          -
axes it paid for the 2005 2008 ad valorem tax years (pursuant to the provisions
>deAnn. 526-35801 ), because of an erroneous assessment made against it, Is

:e muse of action that bas nothing to do w h the Plaintiffs abandonmentof its

I its First Amended   Complaint)from fhe APSC's proceedingsInvolvingtfie 2006,

2008 contest ofthe assessments of the Company's personal property by that

Ir the those three (3) valorem tax years.
                      ad
    3 Some type of actton forthe 'refund" remedyfor'emneous assessments'
     .
irerntaxes has been partofArkansas'statutoFyschemeformorefhan
                                                            100years.

iusly noted (in response to the two Motions to DIsmiss the Plaintiff's First

I Cornplalnf),fhe Arkansas Supreme Court, in its decision i the case of
                                                          n                &y
Brown t umber -
              C               ,90 Ark. 413, at417618,119S.W.251 ( A k , .tQO9),

the taxpayer had to follow the requirements of the statute to be able €0attain a
here the questron was one mof
                            excessive valuation and the assessing officer of

s within its jurisdiction." However, the Supreme Court went on to hold 90 Ark,


   On the other hand, where the defects or errors are
   Jurisdictional, rendering the assessment Invalid, the party
   aggn'eved hasthe right to invokejudicial remedies against the
   Illegal acts of such afficer o board.
                                f
                                                           4



                                    -3-
    1




i       The Supreme Court then went on in this Brown W        r C-
                                                                 o        case to furlher e )lain
        and give examples ofwhat it meant bylurisdictlonally deficient "emneousassessn snts"
        that muld be Judicially challenged (90 Ark., 420):
                     It I urged by the appellee [taxpayer] that an excessive
                         s
               -     valuation of property 1s an emnews assessment thereof
                     within the meanlng of [the statute], so that a remedy is here
                     given t one who has paid taxes under these circumstances,
                            o
                     by having the taxes refunded. But we do not think mat t h ~
                     term 'erroneously assessed,"as used In said sectlon, refers to
                     an over valuation of the pmperty. The fern "erroneous
                     assessment," as there used, refers fa an assessment that
                     deviates from 'the law and i therefore Invalid, and i a defect
                                                   s                      s
                     that is jurisdictional in Its nature; and does not refer to the
                                                            In
                     judgment of the assessing officers fixlng the amount of the
                     valuation of the property.      j f the ornm~@  Wld on was
                         m t h m Watioa,or ifthe property was not located inthe
                     county, or if the tax was invalid, or if there was any clear
                     excess of power granted, so as to make the assessment
                     beyond the JurisdIct'onof the assessing officer or board, then
                     the provisbns of phe statute] give the owner a remedy for a
                     refunding of such taxes thus erroneously pal& Emphasis
                     added and citation of statutes omitted].

                     4. The Plaintiff therefore asserts that the "separate' cause of adion at it

        has set forth in its First Amended Complaint, seeklng a refund of-the 'emne          JSb
        assessed"ad valorem faxes illegally and unconstihrtlonallyimposed upon It, pursui    It to

        the refund remedy set forth in Ark. Code'Ann. $26-35-901, i a completely "sepi ate=
                                                                  s
                                                                                            f
        cause of action that has nothing whatsoever to do with the arguments of the Defeni ms

    that the PlalnfifPs First Amended Complaint should be dlsmissed by this Circuit Cou for

        lack af subject matterjurisdiction, when this Court does have subject matterluridid n to
        entertain and rule on this urnfund remedy" with regard to fhe illegal and unconstitu' mal

        assessment of the ad valorem taxes upon it far the 2005 through 2008 ad valorei tax

        years. Also, the Court's oral ruling, at the close of the hearing an November I 201C TR.
                                                                                       ,
        33-35),never makes mention of this "separate'cause of actlon orwhy there is any

                                                  4

                                                                          001 t f ?
basis      dismisslng thb refund of *emnewsly assessed"taxes cause & a w n asserted

by thr     3intIff. ThetefOW, this "separate"
                                            causeufaclion asserfed by the PIalntiffshould
not b
    l      imlssed for any reason asserted in either of the Defendants'Motions to Dismiss
the P      iff's Rrst Amdnded Complaint.
               B
               .          THE AD VALOREM TAXES ILLEGALLY AND
                          UNCONSTlTUTIONALLY IMPOSED UPON THE
                          PLAINTiFFAND ALL SIMILARLY SITUATED CABLE
                          TELEVISION OPERATORS BY W E DEFENDANTS
                          CONSTITUTES AN 4LLEGAL EXACTION" 'MAT
                          MUST BE ENJOINED BY THIS COURT, FOR ALL
                          CABLE TELEVIS1ON OPERATORS IN ARKANSAS,
                          WITH M E lNVOLUNTARY AD.VALOREM TAXES
                          ORDERED REFUNDTO EACH SUCH OPERATOR

               5. The provisions of Article 16, Sectlon 13,ofthe Arkansss ConstIWon,
were       sd in the state's 1874 Constitution as a "reserved power o righP of the cltizens
                                                                     r
Of   thC   Ite to empower fj-~rn be able
                               to                to enjoin the   officials of the state or local
gover      mts from taking Illegal actions either against them or with public rnonIes. The

pi'Wk      5 of Article   16, Section 13, are clear and expansive, as to the power reservedtu

            f
the peop e o the State of Arkansas, and read, as follows:

               5 13. IllegaI Exactions.
               Any cRken of any county, city or t a m may institute suit, in
               behalf of hlmself and a1 other Interested, to protect the
                                       1
               inhabitants thereof against the enforcement of any illegal
               exactions whatever.




           i
               8, In the exercise ofthis "reserved power"by the citizens of the state [whfch

Includes 0h Arkansas and foreign corporations], the Arkansas Supreme Court has
          t

rendered number of oplnioonsthat have Interpretedthis mnsthutlonal provision, and how




                                               -5-

                                                                        0 0 1 t 13
                                                                                                   Add*- 6 2 6
i
                 A.

                        Jjovlev. Faucher,334Ark. 529,975 S.W.2d 843 (Ark., 1990).

                 0.     This provisbn albws a taxpayer to challenge the impo
                        illegal tax or the ilfegal expenditure of public funds.
                                                   - ,
                        Featmite Precast Corn. 308A*. iz4,a23 S . W 852         ~
                        a n d m R Gheqan. Inc. v. Weiss ,338Ark. 9,992
                        (Ark., 1999).

                 C.




                 D.     The underlying tax being challenged by the taxpayer is "il
                        partofthetaximposedIswithoutlegalauthority. The




                 E.     An illegal exaction case, bmught under Article 10, Section
                        Arkansas Constitution is, automatically, a cfass actton
                        decisbn In the 'illegal exaction' case will be res judica
                        subsequent case that may be Instkuted. Carson



                 .
                 F



                 G.



            h S 8         were C b d by the APSC counsel in SUppOtt Of his Motion to
    Dbmbs the PlalntiWs First Amended Complaint. However, there i m dectsion of th
                                                                       s
    Arkansas Supreme Court, in an "illegal t a f type of 'illegal exadon"case, where the
    Court has held that the V a g in the assessment process can be based upon an
    and unconstitutional action by the assessing entity.
                                                       .-
                                              -8-
                      A & . , 338 Ark, 425,994 S.W.2d 4 1 (Ark. WQQ'
              7. Under these above listed standards applicable in Ilkgal taf type of
'ilfegaf %actlon"mse, the Plahtiff has pled a "separate" cause of adion that has nothing

to do Wi hthe abandonment of fts appealfrornthe APSC's administrative pmceedings, and
I notdependent,in anyway,on such administrative challenge. No staMorypmvjsIon mn
s
impede a taxpayer's right to challenge an 'illegal tax.'   The Plalntm has pled,on behaif of
                                                              n
Itselfanilall othersimilarly situated cable felevisknoperaforsI the State of Arkansas, that

the incllsion of the vabe of its 'intangible personal property" In the assessed value of its


property"i exempt from assessmentforad valorem tax purposes that are imposed fortha
         s
benefR cf counties, cMes and school districts, as provided in Ark. Code Ann. Q 2-2,            t



The AP 3C Defendant's caunsel admitted during oral argument that the APSC's Tax
                                                                   n
Division ncluded the value of Comcasfs intanglblepersonal property i its determination
of the ccmpany's "assessedvalue,"for ad valorem tax purposes (TfX 3.
                                                                   )
              8. There I nothing stated In this Courfs oral ruling, rendered at the cfose
                       s
of the hearing on open court on November I 2010, which, in any way, deals with the
                                          ,

'separatr!ly" pled "illegal tax'' type of 'illegal exadon," and the APSC's Motion to Dismiss
the PlainliWs Complaint should be denied, since 8 'falls to present thts Court with any

reason w i y this Court does not have subject mafterjurisdkction over tfie sepamte "jllegal



            mast, in this case, has alleged that the manner in Mlch the assesshg
                      to the APSC's Tax Dlvlslon by the General Assembly, in Act 175
                         § 1801, seq.) constitutes and 'illegal delegation of legblative
                                  et
                         See, First Amended Complaint, Paragraph 68(f).

                                                               litf
           The APSC counsel nofed, at oral argument, that the P a n H had stated
                         that the "ad valorem tax" in questbn was 'IHsgat and
    exaction" cause of action asserted by the Plainttff on behalf of itself and alf othei
    television operators in the State of Arkansas that are similarfy skated. Thmk

    mnskieration this Court should deny the two Motions to Dismiss the Plaintiff

    Amended Complaht on thls separate 'ilegal exaction' cause af actlon.

                  9.    The Plain€#has pled, throughout its FirstAmended Complaint tl

    imposition of ad valorem taxes by the Defendants upon the value of its 'Intangible pe

    property" are actions that are erroneous, a h i i r y , capricious,              illec;tirl
                   [Emphasis Add@. Therefore, the Plaintiff submits that it has
    ~csnstrtutlonal.
.   everyChing requlred of it, as a taxpayer, to exercise the 'reserved powerand authori

    out I Article 16,Section 3 ,to challenge the actions of the Defendants that the F
         n                    3
    asserts are irnposlng an "illegalt& upon it and all other sfmllarfy situated taxpayer!;, Le,

    any part of the ad valorem tax that is attributable to the inclusion of the value of "intargible
                                                                                                          I
    persona! property" in the assessment base. Also, since this Couffs oral ruling, reni wed

    at the close of the hearing on November 7,2010, does not even address this 'il egal

    exaction" c a u s ~ action, and why &Is "separate' cause of actlon Is being dismissed
                      of
    (because of the APSC and PufaskiCounty Defendants' Motions to Dismks the Plair tiWs
    FirstAmended Complaint) thls Court i denying the Plalntifffhe rightto be able to mist this
                                       s
    separate "subject matter jurisdiction" matter on appeal, unless thls Court substan !idly

    mdifies it oral wring.

                  IO.   The Wansas Supreme Court has held, numemus thes, that lt It; the

    responsibility of a party asserting a cause of adon to secure a ruling on that cause of
    action from the trial judge. The Court has always ruled, in such situations, that:




                                                                            QUI I16
                                                                                                   Add-       629
I                  sound. This is a Court of appellafe jurisdictbn. [Citations
                   omitted].

    Gwin v )anieb, 357 Ark- 623,at 626,184 S.W.3d 28 (Ark. 2 0 ) See also, Bobo Y.
                                                            04.
    _clones,   3 Ark. 564; 222 S.W.3d 197 (Ark, 2 0 ) and Stmud V. W,209 Ark. 820,192
                4                                06;
             (Ark. 1948).
    s.w.2t ;48

                   It   . Therefore, the Plaintiff respscffully requests that the Court reconsider
    its pic oral ruling made on the Defendants' Motions to Dismiss the Plaintiffs First

    Amenc 1 Complaint (In open'court on November 7,2010). After such mconsideraffon
    (and ct      emtion of the authorifk and arguments set forth by the PlahtifPs counsel In
    this Ma      ,the Plaintiff and its counselrespectfultyrequestthat the Court eitherdeny the
    Motlon!      Nsmlss, or,altemattvely, h i tthe ruing on such Motlonsto Dismiss to the issue
    of app       am the APSC's admlnistmtive proceeding (which even the APSC's counsel
    acknov       led on oral argument has been abandoned by the        Plaintiff) (TR.5 ,so as to
                                                                                       1
    presen       ,trial infhis9legal exaction"case the issues regarding a claimfor refund ofthe
    "illegal     unconstitutional" ad valorerit taxes Imposed upon the value of C e "intangible
                                                                                 h

    and e 1
         x       ? personal property of the Plahtiff {and all similarly skuated cable tejevislon

    opemtc       ,ing buslnesswjthhthe Stateof Arkansas) forthe benefdofthe counties, cities

    and scl      ttlstricts of this state.
                   C.      ATMEVERY LEAST,THIS COURTSHOULD MAK€
                           IT CLEAR IN ITS ORDER OF DISMISSAL THAT THE
                           RULING ON THESE MOTIONS TO DISMlSS THE
                           PWNTIFFS FIRSTAMENDEDCOMPMNTDO NOT
                           EFFECT THE PLAINTIFF'S P E N D I N G
                           ADNIINtSTRAlIUEPROCEEDING CONCERNINGITS
                           CHALLENGETOTHE ASSESSMENT MADE BYTHE
                           APSC FOR THE 2009 AD VALOREM TAX YEAR.

                  12. Without any toglcaf basis, the APSC Defendantshave requested ihat
    the Cot      ;miss the Plaintiffs causesof action pled in this case againstdof the named


                                                  -9-

                                                                                                     I
                                                                                                     3 0.
I   Defendants,notjust the APSC Defendan s, and fordad valorem tax years. The o

    valorem tax yearsthatthe PlainfHThasraisedor challenged in Is FirstAmended Con
                                                                t
    are for the 2005 through 2008 pwiods. Even, the APSC counsel acknowledges tl.
    Plalntiffs challenge to the APSC's assessment of the Plaintiff's real and personal p~
    forthe 2009 ad valorem tax yearis presently pending, administ&ively,.before the AI

    Administrative Law Judge. ( I . Underthesecircumstances there is no reason f
                               T ?4).
    Court to give a plenary effect to its Order o Dismissal In thls case,as requested I
                                                 f
    Defendants.

                  1 . The Piahtiffraquesfs the Court, upon reconsideration of its oral
                   3
    an the Defendants' Motion to Dismlss the PlalntiWs FIrst Amended Complaint, to !
    deny such Motions and alIow this case f proceedto trial on the 'separafe' (1) d a
                                          o
    refund and (2) illegal exaction causes of actiun pled by the PtaRtiff and described in

    I this Motion. If such mflef will not be granted by this Court, then, at the very leas
     n
    Courtshould make sure that its Order of Dismissal does not coverthe Plaintiffschal

    to the APSC Defendant's assessmentactions for the 2009 ad vakrem tax year that
    pending before the APSC, administratively.
                WHEREFORE, the PIairrtlR and its underslgned counsel pray that thls          >Urt

    will reconsider the oral ruling made in this case at the close of the hearing on Novt    ber
    I 2010, and wlll grant the Plaintiff the relief it seeks from this Court i thh Math
    ',                                                                       n               for
    Reconsideration of the Court's Oral Ruling and Request for Ruling by This CircuR Co t on
    All Causes of Action Asserted by the Plaintiffin its First Amended Complainf.




                                                                                                   Add- 6,
      I
. *


                                         Christopher 1. Bmckett
                                                       3




                                         -
                                         Ark. Bar No. 2005192
                                         Haffield and Sayre
                                         401 w. Caphl Ave,, Suit8 502
                                         Little Rock, Arkansas 72201
                                         Telephone: (501) 374-9010
                                         Facsimile: (Sol 1374-8570

                                    --




                                         ERIC TRESH
                                         JONATHAN FELDMAN
                                         SUTHERIAND, AS81LL & BRENNAN, LLP
                                         999 PeachtreeStreet, NE
                                         Atlanta, GA 303095996
                                         (404) 853-8579 Telephone
                                         (404) 853-8806 Facsimlfe
                                         Eric,TresBand,cmq

                                         ATTORNEYS FUR M E PJAINTIFF

                           CERTlFlW F OF SERVICE
                                   T

           1, Eugene G Sayre, hereby certify that a copy o the foregoing PlahfifPs
                      .                                   f
                    tlon ofthe Court's Om1 Ruling and Request for Ruling by This
                     uses o Action Asserted by the Plaintiff In its First Amended
                           f
                                          or
                     been sewed by e-ma% U. S, Mall upon the following:

          urnett, County Attorney               MF.Robert E Barnburg
                                                Attorney for City of Jacksonville
                                                303 N. James Street
                                                P.0 Box 5913
                                                    .
                                                Jacksonville, Arkansas 72078
                                                Mr. Kevin Lemley
                                                Arkansas PublicService Cornrnissfon
                                                1000 Center S h e t
                                                Post office Box 400
                                                Little Rock, Arkansas 72203-0400




                                                  '     I
                                         -1?-
I
                IN THE CIRCUIT COURT OF PUL-



     COMCAST OF LITTLE ROCK, RK!.

     v.                                    NO.60-CY-10-1473
     SARATI M.BWDSMW, et aI,




                                             ,ORDER
             On the 1st day of November, 201.0 . m e on iur considerationthe following
                                          ... ,                 .
                                                                    . .
                                                                     i


     m0tioDS:




                                                                                                    -.
                           Complaint, which was adopted by separate defendants Gary             V




                           Fletcher aad City of Jacksonville.



            The Court, having considered the pleadings, motions and all exbibits thento,

    .heard the argument of counsel and being fully advised, finds that said motions should &
     granted for the reasons stated therein and are hereby granted. Plaintiffs claims against

     alt defendants that were raised i the First Amended Complaint, inchding cuunts I
                                     n                                                  -TV,


                                                                          001 I20
udiog Plaintiffs Claim for Refund (under ACA § 26-35-901) and is '5lkgaI
                                                               t
2' Claim (under ATtida I6 6 13 of the State Constitution) me diSmissed with

e.   This M r is nut intended to Sect Corncast's proceedings that main
           e              *.



:beforethe Arkansas Public S d c e Commission. Phhtiffs motion for
l r tm is denied,
e ai




                                   2

                                                                 . 2
                                                            8.01 1 _ 1
                                                                              *   Add:-   634
.'   .
     ,   i   *.



     :
                              IN THE CIRCUIT COURT OF PULASW COUFlfy, ARKANSAS
                                               SECOND DIVISION

                  COMCAST OF LITTLE ROCK, INC., Individually, and
                  as representativeof all slmifady shated eabletelevidon
                  system operator-taxpayers in the State of Arkansas                             PMt

                  V.                                Docket No. 60-CV-10-1473

              SARAH M. BWDSHAW, in her official capacity as the
              Director of the Tax Division of the Arkansas Public
              Service Gommlsslon; ARKANSAS PUBLIC SERVICE
              COMMtSSION; DEBRA BUCMER, in her official
              capacity as the County Treasurer of Pulaskl County,
              Arkansas; JAN= TRUUTMAN WARD, in her officiaf
              capacity as the County Assessor of Pulaski
              County, Arkansas; and              PUtASKl      COUNp(,                                ...
              ARKANSAS; ROB MCGILL, Acting Superintendent of
              the Pulaskl County Speclal School DIstrIct; the
              PUlASKl COUNTY SPECIAL SCHOOL DISTRICT;
              GARY FLHCHER, Mayor, City of Jacksonville,
              Arkansas;and CITYOFJACKSONVtLLE, ARKANSAS;
                   n
              (all i their official capacities, and as representatives of
              a Defendant-classof similarly situated counties, cities
              and school districts, wherein ad valorem taxes are
              assessed and levied upon the real and personal
              property of cable televisionoperatorsfor the support of
              such counties, citles and schooI distticfs)                                   DEFENDj W3


                                 NOTICE OF APPEAL AND DESIGNATlON OF RECORD

                               Comes now the Plalntiff, individually, and as representative of all sin

              sttuated cable television system opemtor-taxpayers in the State of Arkansas, b:
                                                                      . .
              through its undersigned counsel, and does hereby glve notice that it appeals fro1

              Order of Dismissal-enteredhereln on November 23;2010, which was advem 1
              Plaintiff's muses of action asserted In Its Fl!st Amended Complaint.
                               I.   The entire pleadlng and briefing record In thls Circuit Court, as m I1 as
              the oral proceedingsat the two hearings held in thls case, plus the certlfled record fro I the

                  County Court proceeding, are hereby deslgnated by the Plaintiffas the record that s ould




                                                                                     001 I22
                                                                                                           A d d . 5
    . .*.

I           be prep   3d far appellate review In thls case.

                         2.                                        n
                              The franscript ofMe prnceedings held I open court on November I ,
        2010 ai       November 23, 2010, have been ordered by the Plaintiffs counsel from fhe
        COUrrS'       icialCourtReporter,and the necessaryfinanc'al arrangementshave been made

        with the      Ricial Court Reporter.

                         3.    Jurisdiction of this appeal fies with the Arkansas Supreme Court,
        pursuar       3 the provisions of Rule 'l-Z{a)(l)   of the Rules of the Arkansas Supreme Court,

        bacaust       'le issue presented 1 one an appeal that reldtes Eo an interpretation of the
                                          s

        Constih       n
                      I of the Sbfe of AMnsas.
                         Executed this 2lst day of December, 2010.




                                               By:




                                                \     -
                                                      401 W, Capitol Aw., Suite 502
                                                      LitkIe Rock, Arkansas 72201
                                                      Telephone: (501) 374-901 0
                                                      Facsimile: (Sol} 374-8510
                                                      asavremha    ndsark.m


                                                      ATTORNEYS FOR THE PLAINTIFF
                                                      CLASS OF CABLE TELEVISION
                                                      SYSTEM OPERATOR-TAXPAYERS
i




                                CERTlFICATF OF SERV IC6:

                I, Eugene G. Sayre, hereby certify that a copy of the foregofng Not 8 of
    Appeal and Deslgnation of Recod, has this date been served by U. S. Mall upc I the
    following:
    Ms. Kada Burnett, County Attorney                        .
                                                Mr. Robert E Bambutg
    Room 400, PulaskiCounty Admln. Wdg.         Attorney for City of JacksonMe
    201 Soufh 8madway                           303 N. J a m s sh8t
    Little Rock,AR 72204                        P. 0 Box 5913
                                                    .
                                                Jacksonvillef'Atkansas72078
    Mr.Jay k j U 8 k                            Mr. Kevin Lemky
    Bequette & Billfngsley                      Arkansas Public Servlce CommtssL   1
    425 West Capitol Avenue, Suite 3200         I000 Center Street
    Little Rock, Arkansas 72201-3469            Post Office Box 400
                                                Little Rock, Arkansas 722034400
                                                                                           !

                Done at Ltl Rock, Arkansas, this 21st d
                         ife                              w December, 20%
                                                                                   I




                                          -3-

								
To top