Docket Nos. 89075, 89084 cons.–Agenda 14–January 2001.

PRIMECO PERSONAL COMMUNICATIONS, L.P., et al., Appellees and Cross-Appellants, v. THE ILLINOIS COMMERCE

								 COMMISSION et al., Appellants and Cross-Appellees.

Opinion filed March 29, 2001.

	JUSTICE THOMAS delivered the opinion of the court:

	In this case, we are asked to decide whether the “municipal

infrastructure maintenance fee” (the municipal IMF) (see 35 ILCS

635/20 (West 1998)), part of the Telecommunications Municipal

Infrastructure Maintenance Fee Act (35 ILCS 635/1 et seq. (West 1998)), violates the uniformity clause of the Illinois Constitution

(Ill. Const. 1970, art. IX, §2). The municipal IMF is a fee which

municipalities are allowed to impose on telecommunications

retailers as a percentage of the retailers’ gross charges to their

customers. The plaintiffs in this case are all wireless

telecommunications retailers. They brought this action to declare

the municipal IMF unconstitutional and to enjoin the state from

enforcing its provisions. The plaintiffs argued that the municipal

IMF was intended as a means of compensating municipalities for

the physical occupation of the public rights-of-way by certain

telecommunications providers. Since the plaintiffs are not among

those telecommunications providers who physically occupy the

public rights-of-way with their infrastructure, they argued that it

was unreasonable and therefore unconstitutional to include them

within the class of telecommunications retailers subject to the

municipal IMF. The intervening plaintiffs are all consumers who

have paid the municipal IMF, who agree with the plaintiffs’

assertion that the municipal IMF is unconstitutional, and who are

seeking reimbursement in the circuit court.

	The defendant is the Illinois Commerce Commission (ICC),

the state agency with the responsibility of regulating certain aspects

of the telecommunications industry in Illinois. The intervening

defendant is the City of Chicago, one of the municipalities that has

passed an ordinance imposing a municipal IMF. The defendant and

the intervening defendant (the defendants) argued that the

municipal IMF was merely a means of raising municipal revenue and that the General Assembly did not overstep its constitutional

bounds in extending the municipal IMF to wireless providers.

	The trial court agreed with the plaintiffs that the municipal

IMF was unconstitutional and struck it down on its face. Because

the circuit court invalidated an Illinois statute, the defendants took

their appeal directly to this court. See 134 Ill. 2d R. 302(a)(1).

While we agree that the municipal IMF is unconstitutional as

applied to the plaintiffs in this case, we do not find it to be invalid

on its face. A recitation of the pertinent facts in this case is

necessary in order to frame the legal issue presented to us.

BACKGROUND

	For decades, the public rights-of-way have been available for

use by the telecommunications industry. Historically, landline

providers (i.e., telecommunications providers who transmit messages by means of cable wire) have built, owned, and

maintained a wire-based (or fiber-optic-cable-based) infrastructure

by placing telecommunications cables, poles, switching equipment,

terminal boxes, manhole covers, concentrators, splicing cases, and

other equipment in and under the public streets and roadways. The

landline providers use this infrastructure to transmit telephone calls

or other data for their customers. However, the landline system is

no longer the only means of sending and receiving

telecommunications. For many years, it has been possible to send

and receive telecommunications without the use of wires or

cables–in other words, by wireless means. In order to facilitate the

transmission of wireless telecommunications, however, an alternate

infrastructure had to be established.

	Wireless telecommunications providers transmit messages

through the air by means of microwave transmissions rather than

cable wire. The wireless infrastructure consists of base stations and

radio cell towers located at various locations within the wireless

provider’s service area. These individual base stations and cell

towers send and receive microwave transmissions within a “cell”

site. That is, they send and receive electromagnetic signals to or

from cellular devices which are passing within a certain radius of

the base station or cell tower (usually two or three miles, but sometimes as little as one-quarter of a mile). A wireless provider’s

service area is composed of a mosaic of cells that are positioned in

such a manner as to reach any customer located within the service

area. When an electromagnetic signal is received at one of these

stations or towers, it is then transmitted to the wireless provider’s

switching station, which directs the signal to its ultimate

destination.

	At the present time, it is impossible for the wireless providers

to rely entirely on their own wireless infrastructure to send and

receive most telecommunications. For instance, if a cellular

customer wishes to call a land-based telephone, the signal must

pass through the landline system (at least for the last portion of the

call) in order for it to reach the landline customer. Conversely,

when a landline customer wishes to call a wireless customer, the

landline provider must use the wireless provider’s infrastructure to

complete the call. In order to facilitate the completion of such calls,

the wireless and landline providers have negotiated

“interconnection agreements” by which they pay each other

specified amounts based on a standard charge for each minute that

a landline provider uses the wireless infrastructure and vice versa.

	Wireless and landline usage intersect in other situations as

well. For instance, when a cellular customer wishes to call another

cellular customer (even if both customers use the same wireless

provider), the wireless customer places the call, which is then

received at a cell tower servicing the cell site in which he is located.

Once the signal is received, it must be sent to a switching center.

In order for the signal to be sent from the cell site to the switching

center, it must pass through the landline system. After it is received

at the switching center, it is sent through the landline system again

to the cell site where the other cellular customer is located. Once

the signal reaches the cell site, it is transmitted electromagnetically

to the other wireless customer’s cellular device.

	In order for a wireless provider to obtain the right to transmit

its electromagnetic signals through the landline system, it must

lease the capacity from a landline provider. When a wireless

provider enters into lease agreements with the landline provider for

the purpose of allowing it to send messages between its cell sites

and switching center, it is called “backhaul services.”

	In order to provide telecommunications services to all of their

customers, the landline providers install and maintain an extensive

system of wires and cables within the public rights-of-way.

Wireless providers, on the other hand, do not own, operate or

maintain any equipment in the public rights-of-way. The wireless

providers operate and maintain all of their equipment on private

property pursuant to privately negotiated commercial leases.

	Historically, landline providers have obtained access to the

public rights-of-way by negotiating with individual municipalities.

In order to establish and maintain telephone service, a landline

provider would often have to tear up the public roads, dig holes,

and erect telephone poles along the streets. Until 1998, the landline

providers obtained the right to do this in exchange for the payment

of what was called a “franchise fee.” The franchise fee operated as

a means of compensating the municipality for the providers’ use of

the streets, sidewalks and other public areas. See City of Springfield v. Inter-State Independent Telephone & Telegraph

Co., 279 Ill. 324, 325-26 (1917).

	Of course, wireless providers never entered into municipal

franchise fee agreements. Because the wireless providers have

never installed any equipment in the public rights-of-way, they

would never have any need to negotiate with municipalities for the

right to do so. However, under the franchise fee system, when a

landline provider leased capacity to wireless providers, it would

pass a share of the franchise fee on to the wireless providers in

proportion to the volume of capacity used by them. These costs

were embedded within the lease payments made to the landline

provider.

	Franchise fees were not the only fees or taxes paid by

telecommunications retailers to the various organs of government.

Until 1998, the state levied a tax on telecommunications retailers

called the “invested capital tax.” See 35 ILCS 610/2a.1 (West

1996). The invested capital tax was paid to the state, not

municipalities, in an amount equal to 0.8% of the

telecommunication retailer’s invested capital for the taxable period.

35 ILCS 610/2a.1 (West 1996).

	Five years ago, Congress amended the Communications Act

of 1934 in the form of the federal Telecommunications Act of 1996. One of these amendments provides that “[n]o State or local

statute or regulation, or other State or local legal requirement, may

prohibit or have the effect of prohibiting the ability of any entity to

provide any interstate or intrastate telecommunications service.” 47

U.S.C.A. §253(a) (West Supp. 20001996). It goes on to say that “[n]othing in

this section affects the authority of a State or local government to

manage the public rights-of-way or to require fair and reasonable

compensation from telecommunications providers, on a

competitively neutral and nondiscriminatory basis, for use of public

rights-of-way on a nondiscriminatory basis ***.” 47 U.S.C.

§253(c) (2000jSupp. 1996).

	Following the passage of the amendments to the

Telecommunications Act, the Illinois General Assembly passed the

Telecommunications Municipal Infrastructure Maintenance Fee

Act (the Act), which became effective on January 1, 1998. 35

ILCS 635/1 et seq. (West 1998). The Act repealed the invested capital tax (35 ILCS 635/905 (West 1998)), and abolished

franchise fees (35 ILCS 635/30(a) (West 1998)). In their place, the

General Assembly enacted three new taxes: the state infrastructure

maintenance fee (state IMF) (35 ILCS 635/15(a), (b) (West

1998)), the optional infrastructure maintenance fee (optional IMF)

(35 ILCS 635/15(c), (d) (West 1998)), and the municipal IMF (35

ILCS 635/20 (West 1998)). The state IMF is paid to the state in an

amount equal to 0.5% of a telecommunication retailer’s “gross

charges” to its customers. 35 ILCS 635/15(b) (West 1998). The

optional IMF is also paid to the state, but only in the event that a

certain municipality has not yet adopted a municipal IMF and there

is no preexisting franchise fee agreement between the retailer and

the municipality. 35 ILCS 635/15(c), 30 (West 1998). Payment of

the optional IMF gives the retailer the right to “use” the public

rights-of-way in the municipality to which the fee relates without

having to negotiate the payment of a franchise fee. 35 ILCS 635/30

(West 1998).

	The municipal IMF is a fee paid to a certain municipality that

has passed an ordinance imposing one. 35 ILCS 635/20(a) (West

1998). The maximum amount that a municipality can charge in the

form of a municipal IMF is dependent upon the size of the

municipality. 35 ILCS 635/20(b) (West 1998). If the municipality has a population greater than 500,000 (i.e., Chicago), it may charge a municipal IMF no greater than 2% of the “gross charges

charged by the telecommunications retailer to service addresses in

the municipality for telecommunications originating or received in

the municipality.” 35 ILCS 635/20(b)(i) (West 1998). For all other

municipalities in Illinois, the maximum amount is 1%. 35 ILCS

635/20(b)(ii) (West 1998). The General Assembly determined that

the municipal IMF:

			“shall be the only fee or compensation for recovering

the reasonable costs of regulating the use of the public

rights-of-way and for the use of public rights-of-way that

may be levied by or otherwise required by ordinance,

resolution, or contract to be paid to a municipality for the

use of its public way by telecommunications retailers.” 35

ILCS 635/30 (West 1998).

See also 35 ILCS 635/35 (West 1998).

	Soon after the passage of the Act, the City of Chicago passed

its own municipal IMF at the maximum allowable rate, 2%. See

Municipal Code of Chicago §3–75–030(A) (eff. January 1, 1998).

The ordinance, like the Act itself, provided that the municipal IMF

would be imposed on “all gross charges charged by

telecommunications retailers to a service address in the city for

telecommunications originating or received in the city.” Compare

Municipal Code of Chicago §3–75–030(A) (eff. January 1, 1998)

with 35 ILCS 635/20(b)(i) (West 1998).

	On April 27, 1998, a number of wireless providers filed this

action for injunctive and declaratory relief challenging the

constitutionality of the Act insofar as it authorizes municipalities to

impose a municipal IMF. The plaintiffs, Primeco Personal

Communications, L.P., Illinois RSA #3, Inc., USCOC of Illinois

RSA #4, Inc., Davenport Cellular Telephone Co., USCOC of

Illinois RSA #1, Inc., and National Cellular Communications, Inc.,

are all wireless telecommunications retailers providing wireless

telephone service to customers in Illinois. The defendant, the ICC,

is the Illinois agency responsible for regulating the rates of landline

telecommunications providers. The complaint contained three

counts, all seeking to invalidate the municipal IMF as

unconstitutional on its face. After the complaint was filed, the City of Chicago intervened as a defendant to defend the constitutionality

of the Act as well as the City’s own municipal IMF ordinance.

	In count I, the plaintiffs argued that the municipal IMF violates

the uniformity clause because it allows municipalities to assess a

percentage fee on the “gross charges” of telecommunications

retailers, whether landline or wireless. Because the purpose of the

municipal IMF is to compensate municipalities for the use of the

public rights-of-way, it was argued, the extension of the municipal

IMF to wireless providers, who do not own or operate any

equipment in the public rights-of-way, was “entirely unreasonable

and inconsistent with the express purpose of the [IMF] Act.”

According to the complaint, the Act, by classifying all

telecommunications providers as equally subject to the municipal

IMF, violated the portion of the uniformity clause which requires

the General Assembly to classify the subjects or objects of

nonproperty taxes in a reasonable manner.

	In count II of the complaint, the plaintiffs argued that the

municipal IMF violated the uniformity clause because of those

entities which the Act excluded from its coverage. Precisely, the

plaintiffs argued that certain entities that use “PBX” (private

branch exchange) and “Centrex” systems are not subject to

payment of a municipal IMF, but should be. Centrex customers are

those entities which lease switching capacity from landline

providers for private use. These entities tend to be large

corporations or commercial landlords that need an internal means

of communication, but do not wish to establish their own network

of wires and equipment. Instead, the Centrex customers makesign a

lease payments towith a landline provider in exchange for the limited use of some of the

landline provider’s infrastructure. PBX customers, on the other

hand, buy or lease a switching computer which performs the same

function as a Centrex system. Instead of signing a lease with a

landline provider, the PBX customer buys or leases its own

switching computer which is located on the customer’s premises.

When a PBX or Centrex system has been established, it allows its

users to dial an extension which then routes the call to another user

within the system. If the user wishes to make a call to someone

outside of the system, the user must dial “9” in order to access an

outside line.

	According to the plaintiffs, the exclusion of PBX and Centrex

customers from coverage under the municipal IMF creates an

unreasonable classification. Because the PBX or Centrex

customers simply lease capacity from the landline providers, the

wireless plaintiffs argued that their own use (or, rather, nonuse) of

the public rights-of-way is equivalent to that of PBX and Centrex

customers. For this reason, it was argued that there is no

justification for making wireless providers subject to the municipal

IMF while excluding PBX and Centrex entities.

	Finally, in count III, the plaintiffs argued that section 13–511

of the Public Utilities Act, which became effective on the same date

as the municipal IMF, is unconstitutionally vague because it

contains language that is so imprecise that it fails to offer

meaningful guidance to the ICC as the agency charged with

enforcing the directives contained in the statute. See 220 ILCS

5/13–511 (West 1998). Section 13–511 of the Public Utilities Act

provides the following:

			“With respect to any telecommunications retailer that is

regulated by the Illinois Commerce Commission, the

Commision shall order such rate adjustments as shall be

necessary to assure that the implementation of the

Telecommunications Municipal Infrastructure Fee Act ***

shall have no significant impact on the net income of each

such telecommunications retailer.” 220 ILCS 5/13–511

(West 1998).

The plaintiffs argued that when the statute authorizes the ICC to

adjust the rates of landline providers to assure that the Act “shall

have no significant impact on the net income of each ***

telecommunications retailer,” the language used by the General

Assembly wasis so vague and ambiguous that it faileds to provide

reasonable standards for restricting the ICC’s discretion.

	The parties filed cross-motions for summary judgment on all

three counts. In their cross-motions, the parties agreed that there

were no disputed issues of material fact and that summary

judgment was therefore appropriate. On January 11, 2000, the

circuit court granted the plaintiffs’ motion for summary judgment

on count I, but entered summary judgment in favor of the

defendants on counts II and III. The circuit court found that the Act created an unreasonable class of subject entities by broadly

imposing the municipal IMF on all telecommunications retailers,

both landline and wireless, whether they used the public rights-of-

way or not. Because the circuit court found that the object of the

municipal IMF was to compensate municipalities for the use of the

public rights-of-way, the court then determined that it was

unreasonable to include wireless providers, who never “use” the

public rights-of-way, within the class of individuals subject to the

municipal IMF.

	The parties filed cross-appeals, which we consolidated.

Because the circuit court invalidated an Illinois statute, the appeals

were taken directly to this court. See 134 Ill. 2d R. 302(a)(1). The

circuit court stayed the enforcement of its judgment pending

appeal, subject to certain conditions. After the notices of appeal

had been filed, Dr. William Spillman, Tiffany Insurance Agency,

and 13 other persons were given leave to intervene as plaintiffs in

the circuit court and as cross-appellees in this court. The

intervening cross-appellees are all consumers who have paid the

municipal IMF and are now seeking restitution in the circuit court.

	Although there are cross-appeals filed in this case, the

plaintiffs’ cross-appeal relates only to counts II and III. It is the

defendants’ appeal that asks us to reverse the circuit court’s

judgment on count I. Because we partially affirm the circuit court’s

judgment on count I and invalidate the municipal IMF as it applies

to the plaintiffs in this case, we do not address the plaintiffs’ cross-

appeal on counts II and III.1

ANALYSIS

	The defendants’ appeal is taken from an order entering

summary judgment in the plaintiffs’ favor on count I. Summary

judgment is appropriate when “the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2–1005(c) (West 1998). The parties in this case agree that

there were no contested issues of material fact to be resolved by a

fact finder. Therefore, summary judgment in this case was

unquestionably appropriate. The only issue we need to resolve is

a legal one: does the municipal IMF, as imposed on a class of

telecommunications providers regardless of their use of the public

rights-of-way, create a reasonable class of subject entities under

article IX, section 2, of the Illinois Constitution? Our review of the

circuit court’s resolution of this legal question is de novo. McNamee v. State, 173 Ill. 2d 433, 438 (1996).

I. The Uniformity Clause

	Article IX, section 2, of the Illinois Constitution states the

following:

			“In any law classifying the subjects or objects of non-

property taxes or fees, the classes shall be reasonable and

the subjects and objects within each class shall be taxed

uniformly. Exemptions, deductions, credits, refunds and

other allowances shall be reasonable.” Ill. Const. 1970,

art. IX, §2.

A fair reading of the text of this provision shows that there are two

separate requirements contained in the first sentence. The first

requires the General Assembly to classify the subjects or objects of

nonproperty taxes reasonably. Once a reasonable classification has

been established, the second requirement is that the members of

that class must be taxed uniformly. In this case, we are only

concerned with the first requirement, which we will refer to as the

“reasonable classification” requirement.

	In order for a classification to be considered reasonable, it

must be (1) based on a real and substantial difference between

those who are taxed and those who are not taxed, and it must (2)

bear some reasonable relationship to the object of the legislation or

to public policy. Milwaukee Safeguard Insurance Co. v. Selcke, 179 Ill. 2d 94, 98 (1997); Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 250 (1996); Searle Pharmaceuticals, Inc. v. Department of Revenue, 117 Ill. 2d 454, 468 (1987). The foregoing test has also been applied in cases construing article IX, section 1, of the 1870 Constitution. See

Searle Pharmaceuticals, Inc., 117 Ill. 2d at 468-69; Ill. Const. 1870, art. IX, §1. For purpose of this appeal, however, we are only

concerned with the second prong of the “reasonable classification”

test, namely, whether the classification of entities subjected to

taxation under the municipal IMF bears some reasonable

relationship to the object of the municipal IMF itself or to public

policy.2

	The initial burden of proof in these cases is not with the party

attacking the classification as unreasonable. Milwaukee Safeguard Insurance Co., 179 Ill. 2d at 98. Rather, when a good-faith challenge to the reasonableness of a tax classification has been

presented, it is the taxing body that must first justify the tax

classification. Geja’s CafeCafée v. Metropolitan Pier & Exposition Authority, 153 Ill. 2d 239, 248 (1992). Once the taxing body comes forward with a justification, the challenging party must

persuade the court that the taxing body’s justification is

unsupported by the facts or insufficient as a matter of law. Geja’s CafeCafée, 153 Ill. 2d at 248-49. With that in mind, we address the parties’ contentions.

II. The Object of the Municipal IMF

	A uniformity clause challenge such as this one requires us to

first determine the object (or purpose) of the taxing provision at issue. Milwaukee Safeguard Insurance Co., 179 Ill. 2d at 98. Once we have determined the object, it is incumbent upon us to

determine whether that object is reasonably related to the class of

entities taxed. Milwaukee Safeguard Insurance Co., 179 Ill. 2d at 98. The plaintiffs argue that the purpose behind the municipal IMF

was to replace the franchise fee system. According to their theory,

instead of having a complex array of franchise fees charged on a

municipality-by-municipality basis, the municipal IMF would establish a uniform charge that telecommunications providers

would pay to have access to the public rights-of-way. Because the

wireless providers do not own or operate any equipment in the

public rights-of-way or have any desire or need to do so, they

argue that it is unreasonable to place them in a class of entities who

must pay the municipal IMF. Rather, it is the landline providers

who alone make use of the public rights-of-way for

telecommunications activity.

	Defendants, on the other hand, argue that the purpose of the

municipal IMF is to provide a means of raising municipal revenue

and that nothing in the Act purports to limit the purpose of the

municipal IMF to that of a “user fee.” The defendants’s argument

rests on a dichotomy drawn between user fees and taxes.

According to the defendants, a user fee is strictly limited to cost-

recovery for a specific purpose while a tax, on the other hand, may

be imposed simply to raise revenue for any number of reasons.

They argue that the text and structure of the Act indicate an intent

to create a municipal tax on telecommunications activity generally,

not a user fee. Building on this assertion, they argue that the

classification created by the municipal IMF, which includes both

wireless and landline telecommunications providers, is reasonably

related to the purpose of the municipal IMF, which was simply to

raise municipal revenue without regard to a telecommunication

provider’s use or nonuse of the public rights-of-way.

	Unlike many other taxing schemes, the Act is not at all cryptic

as to the purpose behind the municipal IMF. In fact, the first

section in the Act, after the short title, is entitled “Legislative

intent.” See 35 ILCS 635/5 (West 1998). In pertinent part, it states

the following:

		“This Act is intended to abolish the invested capital tax on

telecommunications retailers ***[,] abolish municipal

franchise fees with respect to telecommunications retailers,

create a uniform system for the collection and distribution

of fees associated with the privilege of use of the public

right of way for telecommunications activity, and provide

municipalities with a comprehensive method of

compensation for telecommunications activity including

the recovery of reasonable costs of regulating the use of the public rights-of-way for telecommunications activity.”

35 ILCS 635/5 (West 1998).

The defendants argue that we should disregard this section because

it consists of nothing more than “prefatory language.” According

to the defendants’ theory, courts should only look to these types of

sections, sometimes referred to as preambles, when the operative

parts of the act are ambiguous. Because the operative parts of the

Act are not ambiguous, it is argued, we need not look to the Act’s

legislative intent section to discern its purpose.

	Defendants misunderstand our precedents on this matter.

While it is true that a “declaration of policy or a preamble is not a

part of the act itself” (Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 227 (1989); see also Brown v. Kirk, 64 Ill. 2d 144, 152-53 (1976)), that is not the end of the matter. In Atkins v. Deere & Co., we held that a “preamble has long been recognized as one of the

quintessential sources of legislative intent.” Atkins v. Deere & Co., 177 Ill. 2d 222, 232 (1997). “The fact that the preamble often

accompanies a bill throughout the legislative process, is voted upon

by the members of the General Assembly, and is included in the

text which is presented to the Governor for signature highlights the

unique character of the preamble in terms of legislative intent.”

Atkins, 177 Ill. 2d at 232; accord Edwards v. Pope, 4 Ill. 465, 470 (1842) (holding that the “preamble to a statute is no part of the act;

still it may assist in ascertaining the true intent and meaning of the

legislature”).  Moreover, “a preamble constitutes a stronger

expression of intent than does a passing comment made by a single

legislator during legislative debates.” Atkins, 177 Ill. 2d at 232-33.

	Defendants urge us, instead of relying on section 5 to discern

the object of the municipal IMF, to look to sections 20 and 25(a)

and (c) of the Act (35 ILCS 635/20, 25(a), (c) (West 1998)),

which, they argue, establish that the municipal IMF is not intended

as a tool for compensating municipalities for the use of the public

rights-of-way, but simply as a means of raising municipal revenue.

Sections 20 and 25, however, are certainly not the only sections in

the Act that discuss the municipal IMF. A fundamental principle of

statutory interpretation is that we must give effect to the entire

statutory scheme rather than looking at words and phrases in

isolation from other relevant portions of the statute. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). In other words, statutes should be construed as a whole,

with each provision evaluated in connection with every other

section. Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000).

	Section 5 of the Act strongly implies that the municipal IMF

was intended as a replacement for the revenue generated by

franchise fees. According to this section, the Act was intended to

“abolish municipal franchise fees with respect to

telecommunications retailers, [and] create a uniform system for the

collection and distribution of fees associated with the privilege of

use of the public right of way for telecommunications activity.” 35

ILCS 635/5 (West 1998). The defendants argue, however, that this

language does not necessarily imply that the purpose of the

municipal IMF was to compensate municipalities for the use of the

public rights-of-way. Because the municipal IMF is not in direct

proportion to the costs incurred by municipalities in allowing

telecommunications providers to have access to the public rights-

of-way, the defendants argue that the municipal IMF was obviously

not intended solely as a means of compensation, but also as a

means of raising revenue in excess of a municipality’s actual costs

involved in allowing such access. However, the same could be said

of franchise fees, the sole purpose of which was to compensate

municipalities for the privilege of accessing the public rights-of-

way.

	The franchise fee was often treated as a sort of rent payment

“which the [telecommunications provider] was required to pay as

a reasonable compensation for the use of the parts of the streets

and alleys occupied by its poles” or other equipment. City of Springfield, 279 Ill. at 327. Normally, a municipality would pass an ordinance in which it would offer a telecommunications provider

the right of access to the public rights-of-way in return for a certain

sum of money or other consideration. City of Springfield, 279 Ill. at 327. In other words, the franchise fee was contractual in nature. City of Springfield, 279 Ill. at 327-29; Village of West City v. Illinois Commercial Telephone Co., 372 Ill. 493, 495-97 (1939).

	Historically, municipalities would often bargain with

telecommunications providers in order to extract the maximum

amount of consideration that a provider would be willing to pay for using the public rights-of-way. In the years leading up to the

passage of the Act, however, we began to reign in the power of

municipalities in this respect. In 1993, we held that a municipality’s

only interest in the public streets was regulatory in nature, not

proprietary. American Telephone & Telegraph Co. v. Village of Arlington Heights, 156 Ill. 2d 399, 413 (1993). As such, franchise fees could “only cover actual costs, including inspection,

regulatory, administrative and repair costs associated with the

tunneling under public streets.” American Telephone & Telegraph JCo., 156 Ill. 2d at 413-14. Municipalities, we held, did “not have the authority to hold the public streets hostage as a means of

raising revenue.” American Telephone & Telegraph Co., 156 Ill. 2d at 408.

	Obviously, our holding in American Telephone & Telegraph Co. could only reach as far as those cases in which a telecommunications provider actually challenged the imposition of

a franchise fee in court. It would therefore be reasonable to assume

that there were still a number of franchise agreements in existence

at the time the Act was passed that imposed fees which were

wholly unrelated to a municipality’s regulatory costs. But

regardless of whether the franchise fee was proportional to a

municipality’s regulatory costs, its purpose was always the

same–as a quid pro quo for granting telecommunications providers access to the public rights-of-way.

	Prior to the enactment of the Act, a telecommunications

provider never would have entered into a franchise fee agreement

with a municipality unless it needed to access the public rights-of-

way in that particular municipality. Once a telecommunications

provider gained access to the public rights-of-way by paying a

franchise fee, it would use that access to lay cable or erect

telephone poles or other equipment on public property. If the

municipal IMF was intended as a statewide replacement for

franchise fees, it makes sense to conclude that this same bargain

has now been codified in the form of the municipal IMF.

	For this reason, it makes no difference whether the municipal

IMF raises revenue in direct proportion to a municipality’s

regulatory costs. In cases brought under the second prong of the

“reasonable classification” test, we are merely asking whether the tax classification created by a piece of legislation is reasonably

related to its object (see Milwaukee Safeguard Insurance Co., 179 Ill. 2d at 98), not whether the means of taxation are crafted in a

way to raise revenue in direct proportion to the costs related to the

object of the legislation.

	In addition to abolishing and replacing franchise fees, the

municipal IMF was also intended to “create a uniform system for

the collection and distribution of fees associated with the privilege

of use of the public right of way for telecommunications activity.”

35 ILCS 635/5 (West 1998). The defendants argue that this clause

proves their point concerning the revenue-raising purpose of the

municipal IMF. Because the municipal IMF is a fee which is merely

“associated with” the use of the public rights-of-way, it is argued,

this means that the fee is intended to compensate municipalities for

more than just their regulatory costs. However, as we just

discussed, franchise fees themselves were not necessarily directly

proportional to a municipality’s regulatory costs. What is important

is that the franchise fees were paid to a municipality in exchange

for the privilege of accessing the public rights-of-way. Whether the

fees were directly proportional to a municipality’s regulatory costs

is irrelevant in discerning their ultimate purpose.

	The remaining language in section 5 states that the municipal

IMF was intended as a means of providing “municipalities with a

comprehensive method of compensation for telecommunications

activity including the recovery of reasonable costs of regulating the use of the public rights-of-way for telecommunications activity.”

(Emphasis added.) 35 ILCS 635/5 (West 1998). The defendants

argue that the legislature’s use of the term “including” in the

language quoted above means that it intended all sorts of various

purposes for the municipal IMF besides those that are related to

the use of the public rights-of-way. Such an interpretation,

however, obliterates the otherwise apparent meaning of section 5

and subsumes those purposes that are actually expressed in the

provision. This is not how we interpret statutes. When construing

a statute, this court evaluates it as a whole and interprets it, where

possible, so that no term is rendered superfluous or meaningless. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 270 (1998).

	We believe that the best interpretation of the remaining

language in section 5 is that it merely reflects the purpose that had

been served by franchise fees. When the General Assembly

abolished franchise fees and fashioned the municipal IMF in its

place, the legislature must have been cognizant of the function that

had been served by franchise fees, i.e., that they were not necessarily in direct proportion to a municipality’s regulatory costs.

By using the term “including,” the legislature apparently crafted the

municipal IMF in such a way that it reflected the function of

franchise fees. That is, the municipal IMF, like franchise fees,

would be related to the recovery of regulatory costs involved with

telecommunications activity on public property, whether or not the

revenue generated by the municipal IMF was directly proportional

to those costs.

	Even though one could argue that the municipal IMF

encompasses a broader purpose than the mere reimbursement of a

municipality’s regulatory costs, it was not intended to encompass

a broader purpose than that of franchise fees. In addition to section

5, there are several other indicators which make it clear that the

legislature had no broader purpose in mind than replacing franchise

fees with a more uniform system. That is, the municipal IMF would

do nothing more than create a statewide means of providing access

to the public rights-of-way though the imposition of a uniform fee.

	First of all, the title given to the municipal IMF illustrates its

purpose. The legislature described the municipal IMF as a

“[m]unicipal telecommunications infrastructure maintenance fee.”

See 35 ILCS 635/20 (West 1998). It is reasonable to assume that

the legislature meant what it said: the municipal IMF is a fee imposed on those telecommunications providers that need to access the public rights-of-way in order to maintain their existing infrastructure. Obviously, the “maintenance” to the telecommunications infrastructure is being done by the

telecommunications provider that owns the infrastructure, not the

municipality. If the municipality is exacting a fee from the provider

so that it can perform such maintenance, the question arises why

the municipality would expect such a fee. Of course, the obvious

conclusion is that the municipality is exacting the fee in exchange for allowing the provider to access the public rights-of-way, where

much of the provider’s infrastructure is located.

	There is yet another factor which leads us to believe that the

municipal IMF was intended as a charge for obtaining access to the

public rights-of-way. As we mentioned earlier, the Act contains

three separate fees: the state IMF, the municipal IMF and the

optional IMF. See 35 ILCS 635/15, 20 (West 1998). If a

municipality has not enacted a municipal IMF, a

telecommunications provider may pay the optional IMF to the state

as a percentage of the gross charges “charged *** to service

addresses in [that] particular municipality for telecommunications,

originating or received in the municipality.” 35 ILCS 635/15(c)

(West 1998). By paying the optional IMF, the telecommunications

provider gains access to the public rights-of-way in the

municipality to which the fee relates. 35 ILCS 635/30 (West 1998).

Because the optional IMF is “optional,” a telecommunications

provider only pays it if the provider needs to gain access to the

public rights-of-way in a particular municipality.

	Section 30 of the Act demonstrates that the municipal IMF

serves the same function as the optional IMF. Section 30 provides

that the payment of the municipal IMF (in a municipality that has

enacted one) or the payment of the optional IMF (in a municipality

that has not yet enacted a municipal IMF) gives the

telecommunications provider the right to obtain access to the

public rights-of-way in the municipality to which the fee pertains.

35 ILCS 635/30 (West 1998). A telecommunications provider may

only elect to pay an optional IMF if there is no existing franchise

fee agreement to which the provider is a party and the municipality

has not imposed a municipal IMF. 35 ILCS 635/15(c) (West

1998).

	If a municipality wishes to impose a municipal IMF, the Act

prohibits the municipality from collecting the fee “during any

period of time when a municipality receives any compensation

other than the municipal [IMF] *** for a telecommunications

retailer’s use of the public right-of-way ***.” 35 ILCS 635/25(d)

(West 1998); see also 35 ILCS 635/25(e) (West 1998). In other

words, the municipality may not collect both a franchise fee and the

municipal IMF because the fees are duplicative. That is, they perform the same function–allowing a telecommunications provider

access to the public rights-of-way in exchange for the payment of

a fee.

	The Act provides yet another clue indicating the purpose of

the municipal IMF. In section 35 of the Act, entitled “home rule,”

the Act states that a “home rule municipality may not impose

franchise or other fees upon or require other compensation from

telecommunications retailers for use of the public way, other than

the municipal [IMF] authorized by this Act.” 35 ILCS 635/35

(West 1998). The obvious implication contained in this provision

is that the municipal IMF creates a quid pro quo: payment of the fee in exchange for access to the public rights-of-way.

	All of these examples provide overwhelming textual evidence

of the legislative purpose behind the municipal IMF. Based on

these provisions, we find that it is unquestionable that the

municipal IMF was intended as a uniform means of allowing

telecommunications providers to have access to the public rights-

of-way while giving municipalities compensation that they

otherwise would have received in the form of a franchise fee.3

	The circuit court, in its decision, discussed at great length the

meaning of the phrase “use of the public right of way,” as that

phrase is employed in the Act. The circuit court first analyzed the

“narrow” definition of the term “use,” i.e., the physical occupation of the public rights-of-way by the wires, poles, and other pieces of

equipment owned by a telecommunications retailer. The “broad”

definition, however, would include the act of leasing capacity from

a landline provider for the purpose of completing wireless calls

(since these calls often pass through the landline system, which is

located in the public rights-of-way). Ultimately, the circuit court

concluded that “under either definition of the term ‘use[,]’ the

Municipal IMF offends the Uniformity Clause.”

	It is not necessary to analyze whether the “broad” definition

of the term “use” would justify the classification created by the

municipal IMF. It is clear from the text of the Act that the phrase

“use of the public right of way” refers to the physical occupation

of those rights-of-way by a telecommunication provider’s

infrastructure. For instance, section 25(e) of the Act describes a

situation in which a municipality is still receiving “compensation

from a telecommunications retailer [in the form of a franchise fee]

for the use of the public right of way.” 35 ILCS 635/25(e) (West

1998). In other words, the municipality is collecting the franchise

fee in exchange for granting the telecommunications retailer the

“use of the public right of way.” As we just established, the only

reason a telecommunications retailer would pay a franchise fee was

to access the public rights-of-way for the purpose of installing or

maintaining certain parts of its infrastructure. Thus, when section

25(e) explains the franchise fee agreement as the payment of a fee

in exchange for “the use of the public right of way,” we know

exactly what the term “use of the public right of way” meant: the

physical occupation of the public rights-of-way.

III. Reasonable Classification

	Now that we have established the object of the municipal IMF,

we must determine whether that object is reasonably related to the

class of entities to which the municipal IMF applies. See

Milwaukee Safeguard Insurance Co., 179 Ill. 2d at 98. If, as we have already established, the object of the municipal IMF is to

replace franchise fees and establish a uniform system for allowing

telecommunications providers to access the public rights-of-way in

exchange for the payment of a fee, it would be absurd to impose

such a fee on wireless providers who do not own, operate, or

maintain any equipment within the public rights-of-way. Wireless

providers do not need to access the public rights-of-way in order

to maintain their infrastructure, nor do they desire to establish an

infrastructure where such access would be necessary in the future.

	The defendants argue this very point, but for a different

purpose. Rather than using this observation to establish that the

classification created by the municipal IMF is unreasonable, the

defendants attempt to establish thereby that by including wireless providers among those entities subject to the municipal IMF, the

legislature demonstrated its desire to make wireless providers

subject to the fee (in other words, the tax classification itself

demonstrates the legislature’s purpose in creating the fee). Under

this theory, the classification created by the municipal IMF is

reasonable because it fits the overall purpose of the legislation (to

provide municipalities with a general source of revenue from both

landline and wireless telecommunications activity). This argument

is obviously circular. If the tax classification itself informs the

inquiry regarding the purpose of the legislation (even in clear

contravention of all other textual indications), any classification

would inevitably survive a uniformity clause challenge. Such a

rationale, however, renders the limitations contained in the

uniformity clause utterly meaningless. Our precedents do not

establish that the uniformity clause of our constitution is devoid of

substance.

	We find that the defendants in this case have failed to offer a

sufficient legal justification for imposing the municipal IMF on a

class of entities which includes wireless providers. As we

established, the purpose of the municipal IMF is to create a fee

whereby telecommunications providers are granted access to the

public rights-of-way. Because wireless providers do not own,

operate, or maintain any portion of their infrastructure within the

public rights-of-way and do not need or desire to have access to

the public rights-of-way for the purpose of installing any such

infrastructure, it is unreasonable to include them within the class of

entities subjected to the municipal IMF.

IV. Facial Invalidation

	We do not believe, however, that our conclusion on this

matter suffices to render the municipal IMF facially invalid. “A

facial challenge to a legislative Act is, of course, the most difficult

challenge to mount successfully, since the challenger must establish

that no set of circumstances exists under which the Act would be

valid.” United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987), quoted with approval in In re C.E., 161 Ill. 2d 200, 210-11 (1994). The fact that the municipal IMF operates unconstitutionally as it applies to wireless providers is insufficient to render it wholly invalid. See Salerno, 481 U.S. at 745, 95 L. Ed. 2d at 707, 107 S. Ct. at 2100; In re C.E., 161 Ill. 2d at 210-11.

	In spite of this, the circuit court invalidated the municipal IMF

on its face. We do not believe, however, that this case presented

the circuit court with an all-or-nothing constitutional dilemma. By

examining the trial judge’s reasoning, we can understand the error

that led him to believe that it did.

	As previously discussed, in the portion of its opinion

addressing the “narrow” and “broad” definitions of the phrase “use

of the public right of way,” the circuit court held that the municipal

IMF would be invalid even under the “broad” definition of that

phrase (which includes the mere leasing of landline capacity by a

wireless provider) because the wireless provider’s practice of

leasing landline capacity is a much less intense “use of the public

right of way” than that of the landline providers. As we have

already demonstrated, the meaning of the phrase “use of the public

right of way” is not so broad that it would include the mere leasing

of landline capacity. Nonetheless, the circuit court held that even

under the “broad” definition of that phrase, “it is wholly arbitrary

to impose [the municipal IMF] on the gross charges of the

Plaintiffs since they are plainly in a different category as to [their]

use [of the public rights-of-way] than landline service providers

who own, manage, control and maintain the lines located on the

public rights-of-way.” In other words, the circuit court invalidated

the municipal IMF, at least in part, because the fee generated an

amount of revenue which was in no way directly related to the

intensity to which each type of provider “used” the public rights-

of-way (under the “broad” definition of that term). Of course, a fee

measured against the gross receipts of a telecommunications

retailer would be invalid per se under such a rationale. It is difficult to conceive of a direct relationship that could be shown between a

telecommunications provider’s gross receipts and its use of the

public rights-of-way.

	In its holding on this matter, the circuit court relied heavily on

the reasoning of this court in City of Chicago Heights v. Public Service Co., 408 Ill. 310 (1951). In fact, much of the discussion in the parties’ briefs is centered around that case. However, City of Chicago Heights is inapposite to our holding in this case. City of Chicago Heights involved the constitutionality of two franchise fees imposed by the City of Chicago Heights on the gross receipts

of any telecommunications company that occupied the public

rights-of-way within the city limits. See City of Chicago Heights, 408 Ill. at 316. In that case, we held that the franchise fees imposed

by Chicago Heights violated the uniformity cCclause because a fee

assessed as a percentage of gross receipts “ha[d]s no relation to the

amount of space in a street used by wires or poles of a given

company.” City of Chicago Heights, 408 Ill. at 318. We struck down the fee, noting that it was “wholly lacking in uniformity, and

*** purely arbitrary and discriminatory in its nature.” City of Chicago Heights, 408 Ill. at 318.

	In the present case, however, we determined that the

municipal IMF is invalid in its application to the plaintiffs because

the classification created by the fee is not reasonably related to the

fee’s purpose. The franchise fee in City of Chicago Heights was not challenged under this theory. As the above-quoted language

demonstrates, the franchise fee in City of Chicago Heights was struck down because it taxed the members of the subject class in

a non-uniform manner. City of Chicago Heights, 408 Ill. at 318. As the text of the Uuniformity Cclause indicates, however, a piece of

legislation must first create a reasonable tax classification before a

court can even reach the question of whether the members of that

class are being taxed uniformly. See Ill. Const. 1970, art. IX, §2.

As we have just demonstrated, the municipal IMF fails to do so. To

the extent the municipal IMF creates a classification that includes

telecommunications providers who do not own or operate any of

their infrastructure in the public rights-of-way, it is invalid. Of

course, this description fits all of the plaintiffs in this case. It is not

necessary for us, then, to address whether the municipal IMF

operates uniformly upon the remaining members of the class who do own and operate part of their infrastructure within the public rights-of-way.

	Not only is it unnecessary, it is improper. Our jurisdiction is

restricted to cases which present an actual controversy, and we

decline to issue advisory opinions on moot or abstract questions of

law. People ex rel. Partee v. Murphy, 133 Ill. 2d 402, 408 (1990); People ex rel. Black v. Dukes, 96 Ill. 2d 273, 276 (1983); In re Marriage of Wright, 89 Ill. 2d 498, 500 (1982). If the resolution of a certain question of law cannot affect the result as to the parties

or controversy before it, the court should not resolve the question

merely to set a precedent or to guide future litigation. Segers v. Industrial Comm’n, 191 Ill. 2d 421, 428 (2000); In re Barbara H., 183 Ill. 2d 482, 491 (1998); Murphy, 133 Ill. 2d at 408.

CONCLUSION

	Accordingly, for the reasons given, we affirm the circuit

court’s order of summary judgment under count I of the complaint

that found the municipal IMF to be in violation of Aarticle IX,

section 2, of the Illinois Constitution. However, we do not find the

municipal IMF to be invalid on its face. Rather, we find that the

municipal IMF violates the Uuniformity Cclause only to the extent that

it applies to telecommunications retailers who do not own, operate,

or maintain any part of their infrastructure within the public rights-

of-way.

Affirmed.

Dissenting UOIppinion Upon Denial of Rehearing

	JUSTICE FREEMAN, dissenting:

	The City of Chicago and the Illinois Commerce Commission

(defendants) have filed a petition for rehearing in this cause.

Because I believe that this court’s opinion may have been in error,

I respectfully dissent from the denial of the petition for rehearing.

	The legislature enacted the Telecommunications Municipal

Infrastructure Maintenance Fee Act (Act) (35 ILCS 635/1 et seq. (West 1998)), effective January 1, 1998. Section 5 of the Act

provides in part:

			“This Act is intended to abolish the invested capital tax on

telecommunications retailers ***. This Act is also intended

to abolish municipal franchise fees with respect to

telecommunications retailers, create a uniform system for the collection and distribution of fees associated with the

privilege of use of the public right of way for

telecommunications activity, and provide municipalities

with a comprehensive method of compensation for

telecommunications activity including the recovery of

reasonable costs of regulating the use of the public rights-

of-way for telecommunications activity.” 35 ILCS 635/5

(West 1998).

	The invested capital tax (35 ILCS 610/2a.1 (West 1996)) had

been imposed on invested capital of utilities. Municipal franchise

fees were imposed by municipalities upon landline

telecommunications retailers to compensate the municipalities for

the use of the public rights-of-way by these retailers for

telecommunications activity and the maintenance and repair of

equipment in the public rights-of-way. The franchise fees included

a percentage of all lease revenues that wireless telecommunications

retailers paid to landline telecommunications retailers for their use

of the equipment maintained by the landline telecommunications

retailers in the public rights-of-way.

	The Act replaced the invested capital tax and the franchise fees

with a state infrastructure maintenance fee imposed upon landline

telecommunications retailers (35 ILCS 635/15 (a), (b) (West

1998)); an optional infrastructure maintenance fee imposed upon

landline telecommunications retailers (35 ILCS 635/15 (c), (d)

(West 1998)); and a municipal telecommunications infrastructure

maintenance fee imposed upon all telecommunications retailers,

including wireless telecommunications retailers (Municipal IMF)

(35 ILCS 635/20 (West 1998)).

	Pursuant to section 20 of the Act, a municipality could impose

a Municipal IMF upon telecommunications retailers by adopting an

ordinance to that effect. If the municipality had a population of

more than 500,000, it could impose a Municipal IMF of “2.0% of

all gross charges charged by the telecommunications retailer to

service addresses in the municipality for telecommunications

originating or received in the municipality.” 35 ILCS 635/20(b)

(West 1998). In a municipality with a population of 500,000 or

lessfewer, the Municipal IMF was limited to “1.0% of all gross charges

charged by the telecommunications retailer to service addresses in the municipality for telecommunications originating or received in

the municipality.” 35 ILCS 635/20(b) (West 1998).

	The City of Chicago passed an ordinance imposing a

Municipal IMF of 2% on “all gross charges charged by

telecommunications retailers to a service address in the city for

telecommunications originating or received in the city.” Chicago

Municipal Code §3–75–030(A) (added October 1, 1997). Primeco

Personal Communications, L.P., a wireless telecommunications

retailer, and several other wireless telecommunications retailers

(plaintiffs) filed an action for injunctive and declaratory relief.

	Plaintiffs noted that wireless telecommunications retailers do

not own or operate equipment in the public rights-of-way. Plaintiffs

claimed that the purpose of the Municipal IMF was to compensate

municipalities for the use of the public rights-of-way. Plaintiffs

argued that the Municipal IMF violated the uniformity clause of the

Illinois Constitution (Ill. Const. 1970, art. IX, §2) to the extent that

the Municipal IMF applied to telecommunications retailers who do

not own or operate any equipment in the public rights-of-way.

	Defendants responded that the Municipal IMF was not a fee

for the use of the public rights-of-way. Instead, the Municipal IMF

was a tax imposed uniformly on telecommunications retailers.

Defendants maintained that the Municipal IMF did not violate the

uniformity clause.

	This court held section 20 of the Act (35 ILCS 635/20 (West

1998)) invalid as applied to telecommunications retailers who do

not own, operate, or maintain any equipment in the public rights-

of-way. Initially, this court noted that in a case involving a

uniformity clause challenge it must ascertain the object or purpose

of the taxing provision at issue. This court looked particularly to

section 5 of the Act (35 ILCS 635/5 (West 1998)), entitled

“Legislative intent,” to ascertain that purpose. This court reasoned

that the Municipal IMF was intended as a tool to compensate

municipalities for the use of the public rights-of-way. As such, the

Municipal IMF violated the uniformity clause because the

Municipal IMF was imposed on both landline telecommunications

retailers, that is, retailers who own, operate and maintain

equipment in the public rights-of-way, and wireless telecommunications retailers, that is, retailers who do not own,

operate or maintain equipment in the public rights-of-way.

	In their petition for rehearing, defendants question this court’s

conclusion that the Municipal IMF was intended as a uniform

means of compensating municipalities for allowing

telecommunications retailers to have access to the public rights-of-

way. Defendants maintain that the Municipal IMF was intended as

a means of raising revenue from telecommunication activities, and

not just a way to compensate municipalities for the costs they incur

in allowing telecommunications retailers to have access to the

public rights-of-way. Defendants note that, pursuant to sections 20

and 25 of the Act (35 ILCS 635/20, 25 (West 1998)),

municipalities may collect the Municipal IMF from wireless

telecommunications retailers. See also 35 ILCS 635/10(b), (d), (f)

(West 1998). Given the clarity of these provisions, and assuming

the legislature knew that wireless telecommunications retailers do

not own, operate or maintain equipment in the public rights-of-

way, defendants assert this court gave undue precedence to the

Act’s statement of legislative intent while ignoring the Act’s

substantive provisions.

	Next, defendants assert that the Municipal IMF is a fair way

of raising revenue from telecommunication activities. Defendants

explain:

		“[W]hile wireless retailers do not themselves need to

install or repair equipment in public rights-of-way, they are

critically dependent upon such equipment. Rather than

place their own equipment in the public way, wireless

retailers have chosen to rely on landline carriers to do this

for them. Thus, it is reasonable to spread to wireless

carriers a portion of the compensation that municipalities

receive for granting landlines access to public rights-of-

way, since wireless providers are critically dependent on

the ability of landline carriers to obtain access to public

rights-of-way in order to install and maintain equipment.

For that reason, the General Assembly reasonably included

wireless retailers within the class of telecommunications

retailers that must compensate municipalities for granting

landline carriers access to public rights-of-way. Indeed, as we explain above, wireless retailers previously contributed

to the payment of franchise fees for landlines. For that

reason, they could also be expected to contribute to the

IMF, which replaced franchise revenues.”

	Finally, defendants maintain this court’s opinion will have an

adverse impact on “every municipal budget in Illinois” and will

require “painful cuts in municipal services or borrowing at

considerable cost to the taxpayers in order to plug budgetary

shortfalls” resulting from the invalidation of the Act.

	I believe that defendants have advanced considerations that

merit rehearing by this court. I also find an additional reason for

allowing the petition for rehearing in this court’s failure to either

follow or overrule our decision in City of Chicago Heights v. Public Service Co., 408 Ill. 310 (1951). This court’s attempt to distinguish City of Chicago Heights is unpersuasive.

	The decision in this cause is of momentous import to the

litigants and to the people of this state. The City of Chicago and

numerous municipalities in the state stand to lose a great deal of

revenue because this court has invalidated the Municipal IMF. The

municipalities will surely attempt to enact other taxing provisions

to counter the loss of revenues from the Municipal IMF.

Moreover, if the Municipal IMF is truly intended as a means to

compensate municipalities for the use of the public rights-of-way,

the legislature may well increase the fee that municipalities are

allowed to collect from the landline telecommunications retailers

to make up for the loss of revenues from the wireless

telecommunications retailers. Any increase in those fees would be

passed on to users of landline telephones in this state. Given these

circumstances and the arguments for rehearing outlined above, I

believe this court errs in denying the petition for rehearing. I

respectfully dissent.

	JUSTICE McMMORROW joins in this dissent.