County Tax Surcharge on Cable TV Loses on Appeal : Ruling: Court holds levy should not have been applied to American Television & Communications Corp., which serves the city of Orange.

The county assessor’s attempts to impose a property tax surcharge on cable TV operators has been dealt a third and possibly fatal blow by a state appeals court.

The 4th District Court of Appeal, in a unanimous decision written Jan. 28 and released Thursday, ruled that the levy should not have been applied to the American Television & Communications Corp., which serves the city of Orange.

If last week’s ruling is not appealed, the county will refund more than $200,000 to American Television, which the company may, if it chooses, pass along to subscribers.

Nine other county cable companies--including Dimension Cable Services, which is owned by Times Mirror Co.--have also appealed the tax, but attorneys for all parties had been awaiting the outcome of American Television’s litigation before proceeding. Some passed the tax increase along to subscribers--adding $1 to $2 to some monthly basic service charge--and some did not, industry spokesman Harvey Englander said.

The 10 companies say their collective tax bills were unfairly raised in 1989 as a result of a new valuation method. That method, they contend, singled them out as an industry because it taxed them not only on the value of their property but on the value of their businesses.

When the new formula was subsequently rejected by an assessor’s review board, County Assessor Bradley L. Jacobs appealed that decision to Orange County Superior Court. In 1991, the court also ruled against the assessor. The Court of Appeal upheld the board and Superior Court rulings.

“The appeals court’s unanimous decision,” John Gibbs, vice president and legal counsel of Continental Cable Vision, said in a prepared statement, “sends a clear message to the county assessor that he should stop discriminating against the cable industry and end his vendetta.” Jacobs declined comment. Howard R. Whitcomb, the assessor’s manager of quality assurance, said no decision had been made about whether to appeal the ruling to the state Supreme Court.

Since the tax increase was first implemented, the county auditor-controller’s office has impounded all the companies’ tax payments, an estimated total of $13.5 million by the end of the 1992-93 fiscal year, according to James M. Mc Connell, chief of accounting operations.

“A pretty hefty amount,” McConnell said, adding that the potential loss will not affect county operations, since such disputed funds are not budgeted or counted in revenue estimates.

“We never had it” to spend, McConnell said, “although it’s money we could have had if we had won the case.”

Both Whitcomb and Thomas C. Agin, deputy county counsel, insisted that the appeals court ruling had no carry-over to the other pending cases. The ruling, Whitcomb said, was “unique” and “doesn’t go to the heart of the cable controversy.”

“I stress that this is a case that applies to this one company . . . that specifically dealt with the facts in this case,” Agin said. “There’s not a whole lot of value (in the decision) about how the other cable companies should be assessed.”

But cable company attorneys and officials disagreed.

“This is an overwhelming victory for California cable television operators and for cable television subscribers in Orange County,” said Don Granger, vice president and regional general manager for Multivision Cable Television, in a prepared statement.