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Volume 4 - Opinions of Counsel SBEA No. 24

Opinions of Counsel index

Real property, definition of (CATV) - Real Property Tax Law, § 102(12)(d):

Property comprising a CATV (cable television) system is taxable real property. This real property includes not only the signal receiving tower, wires and poles but also all accessory apparatus essential for receiving, relaying and distributing the broadcasts to the subscribers.

Our opinion has been requested as to whether a CATV (“cable television”) system is taxable real property. This system consists of equipment which receives television broadcasts and transmits or distributes the broadcasts to the homes of subscribers by wires. Usually, the corporation leases the wires of telephone or power companies located in the streets but owns the wires which go from the transmitting office to the street wires and from the street wires onto each subscriber’s premises.

It is our opinion that the equipment comprising the antenna system is taxable real property under the provision contained in paragraph (d) of subdivision 12 of section 102 of the Real Property Tax Law. This provision reads as follows:

12. “Real property”, “property” or “land” mean and include:
(d) Telephone and telegraph lines, wires, poles and appurtenances; supports and inclosures for electrical conductors and other appurtenances, upon, above and under ground;

This provision has been broadly construed by the courts. Thus, as respects the property in a telephone system, the central office equipment, lines, wires, poles, telephone instruments and any other apparatus which is an integral part of the system and necessary for the completion of a telephone call is taxable. The described equipment is taxable real property even when installed on a subscriber’s premises. New York Telephone Co. v. Canough, 264 App. Div. 937, 36 N.Y.S.2d 263, aff’d, 290 N.Y. 537; 49 N.E.2d 999; Matter of New York Telephone Co. v. Ferris, 257 App. Div. 415, 13 N.Y.S.2d 359, aff’d w/o, 282 N.Y. 667, 26 N.E.2d 805. Also, in People ex rel Holmes Electric Protective Co. v. Chambers, 1 Misc.2d 990, 125 N.Y.S.2d 436, aff’d, 285 App. Div. 886, 139 N.Y.S.2d 245, aff’d, 1 N.Y.2d 760, 135 N.E.2d 56, 152 N.Y.S.2d 304, the wiring systems owned by a company offering burglary protection which led from wires located in streets leased from the New York Telephone Company onto each subscriber’s premises were held to be taxable real property under this provision. The court reasoned that the language covered any system which utilizes electrical impulses for the transmission, or receipt of messages, regardless of whether or not the property is used exclusively in the commercial telephone or telegraph business as such.

The holding in Harper v. City of Kingston, 17 Misc.2d 627, 188 N.Y.S.2d 577, is also relevant. There it was held that a company engaged in the business of receiving, relaying and distributing television and radio broadcasts by means of wire is a telephone or telegraph corporation for purposes of incorporation on the theory that general incorporation acts are given a sufficiently broad interpretation to meet progressive inventions in the enterprises. This same interpretation has been accorded the provisions of paragraph (d). At the time the telephone cases were decided, the law specified only that “all telegraph lines, wires, poles and appurtenances” (Tax Law, § 3) were real property. The word “telephone” was added as a restatement of case law in the recodification of 1958 (L.1958, c.959).

On the basis of these cases, we believe the courts would hold that the property comprising a CATV system is made taxable real property by the provisions of paragraph (d). In our opinion, this property includes not only the signal receiving tower, wires and poles, but also all accessory apparatus essential for receiving, relaying and distributing the broadcasts to the subscribers.

Finally, as we have previously held, cable television property in the public way is subject to special franchise assessments set by this Board (1 Op.Counsel SBEA No. 38).

November 8, 1967

NOTE:  But see Opinion 8-85.