**PUBLISHED**

**UNITED STATES COURT OF APPEALS**

**FOR THE FOURTH CIRCUIT**

MEDIAONE GROUP, INCORPORATED;

MEDIAONE OF VIRGINIA,

INCORPORATED; AT&T CORPORATION,

Plaintiffs-Appellees,

v\.

COUNTY OF HENRICO, VIRGINIA,

Defendant,

BELL ATLANTIC CORPORATION; BELL

ATLANTIC-VIRGINIA, INCORPORATED;

BELL ATLANTIC INTERNET SOLUTIONS,

INCORPORATED,

Intervenors/Defendants,

> No. 00-1680

and

GTE INTELLIGENT NETWORK

SERVICES, INCORPORATED, d/b/a

GTE.net,

Intervenor-Appellant.

VIRGINIA CITIZENS CONSUMER

COUNCIL; CONSUMER FEDERATION OF

AMERICA; CENTER FOR MEDIA

EDUCATION; DISTRICT OF COLUMBIA;

CITY OF TACOMA, WASHINGTON;

MONTGOMERY COUNTY, MARYLAND;

U.S. CONFERENCE OF MAYORS;

NATIONAL LEAGUE OF CITIES;

NATIONAL ASSOCIATION OF COUNTIES;

NATIONAL ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; VIRGINIA ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; TEXAS ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; MINNESOTA

ASSOCIATION OF COMMUNITY

TELECOMMUNICATIONS

ADMINISTRATORS; OPENNET

COALITION; HANDS OFF THE

INTERNET; FEDERAL COMMUNICATIONS

COMMISSION; NATIONAL CABLE

TELEVISION ASSOCIATION; VIRGINIA

TELECOMMUNICATIONS ASSOCIATION;

WEST VIRGINIA TELECOMMUNICATIONS

ASSOCIATION; CABLE

TELECOMMUNICATIONS ASSOCIATION OF

MARYLAND, DELAWARE AND THE

DISTRICT OF COLUMBIA,

INCORPORATED; NORTH CAROLINA

CABLE TELECOMMUNICATIONS

ASSOCIATION; SOUTH CAROLINA

TELEVISION ASSOCIATION,

Amici Curiae.

MEDIAONE GROUP, INCORPORATED;

AT&T CORPORATION; MEDIAONE OF

VIRGINIA, INCORPORATED;

Plaintiffs-Appellees,

v\.

COUNTY OF HENRICO, VIRGINIA,

Defendant,

GTE INTELLIGENT NETWORK

SERVICES, INCORPORATED, d/b/a

GTE.net,

Intervenor/Defendant,

and

> No. 00-1709

BELL ATLANTIC CORPORATION; BELL

ATLANTIC-VIRGINIA, INCORPORATED;

BELL ATLANTIC INTERNET SOLUTIONS,

INCORPORATED,

Intervenors-Appellants.

VIRGINIA CITIZENS CONSUMER

COUNCIL; CONSUMER FEDERATION OF

AMERICA; CENTER FOR MEDIA

EDUCATION; CITY OF TACOMA,

WASHINGTON; MONTGOMERY COUNTY,

MARYLAND; DISTRICT OF COLUMBIA;

U.S. CONFERENCE OF MAYORS;

NATIONAL LEAGUE OF CITIES;

NATIONAL ASSOCIATION OF COUNTIES;

NATIONAL ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; VIRGINIA ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; TEXAS ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; MINNESOTA

ASSOCIATION OF COMMUNITY

TELECOMMUNICATIONS

ADMINISTRATORS; OPENNET

COALITION; HANDS OFF THE

INTERNET; FEDERAL COMMUNICATIONS

COMMMISSION; NATIONAL CABLE

TELEVISION ASSOCIATION; VIRGINIA

TELECOMMUNICATIONS ASSOCIATION;

WEST VIRGINIA TELECOMMUNICATIONS

ASSOCIATION; CABLE

TELECOMMUNICATIONS ASSOCIATION OF

MARYLAND, DELAWARE AND THE

DISTRICT OF COLUMBIA,

INCORPORATED; NORTH CAROLINA

CABLE TELECOMMUNICATIONS

ASSOCIATION; SOUTH CAROLINA

TELEVISION ASSOCIATION,

Amici Curiae.

MEDIAONE GROUP, INCORPORATED;

MEDIAONE OF VIRGINIA,

INCORPORATED; AT&T CORPORATION,

Plaintiffs-Appellees,

v\.

COUNTY OF HENRICO, VIRGINIA,

Defendant-Appellant,

and

GTE INTELLIGENT NETWORK

SERVICES, INCORPORATED, d/b/a

GTE.net; BELL ATLANTIC

> No. 00-1719

CORPORATION; BELL ATLANTIC-

VIRGINIA, INCORPORATED; BELL

ATLANTIC INTERNET SOLUTIONS,

INCORPORATED,

Intervenors/Defendants.

VIRGINIA CITIZENS CONSUMER

COUNCIL; CONSUMER FEDERATION OF

AMERICA; CENTER FOR MEDIA

EDUCATION; CITY OF TACOMA,

WASHINGTON; MONTGOMERY COUNTY,

MARYLAND; DISTRICT OF COLUMBIA;

U.S. CONFERENCE OF MAYORS;

NATIONAL LEAGUE OF CITIES;

NATIONAL ASSOCIATION OF COUNTIES;

NATIONAL ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; VIRGINIA ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; TEXAS ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS AND

ADVISORS; MINNESOTA

ASSOCIATION OF COMMUNITY

TELECOMMUNICATIONS

ADMINISTRATORS; OPENNET

COALITION; HANDS OFF THE

INTERNET; FEDERAL COMMUNICATIONS

COMMMISSION; NATIONAL CABLE

TELEVISION ASSOCIATION; VIRGINIA

TELECOMMUNICATIONS ASSOCIATION;

WEST VIRGINIA TELECOMMUNICATIONS

ASSOCIATION; CABLE

TELECOMMUNICATIONS ASSOCIATION OF

MARYLAND, DELAWARE AND THE

DISTRICTOF COLUMBIA,

INCORPORATED; NORTH CAROLINA

CABLE TELECOMMUNICATIONS

ASSOCIATION; SOUTH CAROLINA

TELEVISION ASSOCIATION,

Amici Curiae.

Appeals from the United States District Court for the Eastern District
of Virginia, at Richmond. Richard L. Williams, Senior District Judge.
(CA-00-33-3)

Argued: September 27, 2000

Decided: July 11, 2001

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge Michael wrote the opinion, in which
Judge Wilkins joined. Judge Widener wrote a concurring opinion.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

COUNSEL

ARGUED: Edward Joseph Fuhr, HUNTON & WILLIAMS, Richmond, Virginia;
Andrew Gerald McBride, COOPER, CARVIN & ROSENTHAL, P.L.L.C., Washington,
D.C., for Appellants. David William Carpenter, SIDLEY & AUSTIN, Chicago,
Illinois, for Appellees. ON BRIEF: Stacy C. Taylor, Eric H. Feiler,
HUNTON & WILLIAMS, Richmond, Virginia; Joseph P. Rapisarda, Jr., Joseph
T. Tokarz, II, Karen M. Adams, COUNTY ATTORNEY\'S OFFICE, Richmond,
Virginia, for Appellant Henrico. Michael A. Carvin, Noel J. Francisco,
COOPER, CARVIN & ROSENTHAL, P.L.L.C., Washington, D.C., for Appellant
GTE; Brett M. Kavanaugh, Theodore W. Ullyot, KIRKLAND & ELLIS,
Washington, D.C., for Appellant Bell Atlantic. Peter D. Keisler, David
L. Lawson, SIDLEY & AUSTIN, Chicago, Illinois; James C. Roberts, Carter
Glass, IV, Dabney Carr, IV, MAYS & VALENTINE, L.L.P., Richmond,
Virginia; Mark C. Rosenblum, Laura A. Kaster, AT&T CORPORATION, Basking
Ridge, New Jersey; Sean Lindsay, David White, MEDIAONE GROUP, INC.,
Englewood, Colorado, for Appellees. Andrew Jay Schwartzman, Cheryl A.
Leanza, Harold J. Feld, MEDIA ACCESS PROJECT, Washington, D.C., for
Amici Curiae Consumer Council, et al. Nicholas P. Miller, William
Malone, Joseph Van Eaton, John F. Noble, James R. Hobson, MILLER & VAN
EATON, P.L.L.C., Washington, D.C., for Amici Curiae NATOA, et al.
William P. Cook, Pamela J. Marple, MANATT, PHELPS & PHILLIPS, L.L.P.,
Washington, D.C., for Amicus Curiae OpenNET. Christopher Wolf, Bruce E.
Boyden, PROSKAUER ROSE, L.L.P., Washington, D.C.; Tanya L. Forsheit,
PROSKAUER ROSE, L.L.P., Los Angeles, California, for Amicus Curiae Hands
Off. William B. Schultz, Acting Assistant Attorney General, Jacob M.
Lewis, Mark Davies, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Christopher J. Wright, General Counsel, Jonathan E. Nuechterlein,
Deputy General Counsel, James M. Carr, FEDERAL COMMUNICATIONS
COMMISSION, Washington, D.C., for Amicus Curiae Commission. Howard J.
Symons, Tara M. Corvo, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO,
P.C., Washington, D.C., for Amici Curiae National Cable Television, et
al.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

OPINION

MICHAEL, Circuit Judge:

AT&T Corporation is still the largest long distance telephone company in
the country, and this case is about its recent entry into the broadband
telecommunications market that provides high-speed access to the
Internet. AT&T has acquired MediaOne Group, Inc. (MediaOne), which has a
cable franchise in Henrico County, Virginia. In approving the transfer
of control of the franchise, the Henrico County Board of Supervisors
(the County) required MediaOne to provide any requesting Internet
Service Provider (ISP) with access to its cable modem platform. AT&T and
MediaOne sued the County in federal court, arguing that the open access
provision was preempted by federal law (the Communications Act) and, in
any event, violated state law. The district court agreed and granted
summary judgment for AT&T and MediaOne. We affirm as follows. Under Bell
Atlantic Md., Inc. v. Prince George\'s County, 212 F.3d 863 (4th Cir.
2000), we must consider the state law question first. However, because
Virginia law does not provide an independent ground for disposition of
the case, we proceed to the preemption question. Henrico County\'s open
access provision violates the federal Communications Act, 47 U.S.C. §
541(b)(3)(D), by forcing MediaOne to provide its telecommunication
facilities (its cable modem platform) to any ISP as a condition for the
County\'s approval of the transfer of control of the franchise. Because
the open access provision is inconsistent with the federal
Communications Act, it is preempted and superceded.

I.

Most residential and small business consumers gain access to the
Internet through slower narrowband technology, specifically, through the
traditional dial-up telephone modem that is connected to copper lines.
Broadband technology is beginning to provide many of these consumers
with a high-speed alternative to Internet access, and analysts are
forecasting substantial growth in the demand for broadband services. The
most common forms of broadband technology are cable modem platforms and
digital subscriber lines (DSLs). A broadband pipeline, like the basic
telephone infrastructure, serves as a conduit between an Internet user
and an ISP, such as America Online, Juno, or Prodigy.

In 1998 and 1999 AT&T began a major effort to establish a foot-hold in
broadband markets around the country. AT&T sought to enter these markets
by acquiring existing cable television companies. One of its first
acquisition targets was MediaOne, a large cable company with a franchise
in Henrico County, Virginia. Like most cable operators, MediaOne
provides traditional cable television service. However, the company has
upgraded its cable systems, including the one in Henrico County, to
include a cable modem platform that provides a high-speed link to the
Internet. In connection with this upgrade MediaOne joined with others to
form a company doing business as \"Road Runner.\" Road Runner provides a
\"bundled\" service that combines MediaOne\'s broadband pipeline (the
cable modem platform) with the Internet services usually offered by an
ISP. MediaOne customers who want Internet access over cable do not have
the option of using just MediaOne\'s cable modem platform; rather, they
must subscribe to Road Runner and take the Internet services it offers.
Although Road Runner customers may subscribe to an ISP unaffiliated with
MediaOne, most customers have no incentive to do that because the
features offered by most outside ISPs are nearly identical to those
offered by Road Runner. Instead of paying for a duplicative Internet
service from an outside ISP, most MediaOne customers simply stick with
the bundled service provided by Road Runner.

On May 6, 1999, AT&T and MediaOne entered into an agreement to merge.
The merger, which has now been finalized, gives AT&T control of all of
MediaOne\'s cable television systems, including the system that holds a
franchise in Henrico County. In July 1999 AT&T and MediaOne applied to
the County for formal approval of the transfer of control. The County
gave its approval in an ordinance adopted in December 1999. The
County\'s approval, however, was conditioned on the requirement that
\"\[n\]o later than December 31, 2000, \[MediaOne\] shall provide any
requesting Internet Service Provider (ISP) access to its cable modem
platform (unbundled from the provision of content) on rates, terms, and
conditions that are at least as favorable as those on which it provides
such access to itself, to its affiliates, or to any other person.\" This
open access condition would require MediaOne to open its broadband
pipeline to unaffiliated ISPs. MediaOne customers would thus be able to
access the Internet over MediaOne\'s cable modem platform without
subscribing to the bundled Road Runner service.[^1]

AT&T and MediaOne chafed under the open access condition mandated by
Henrico County. They sued the County in federal court in the Eastern
District of Virginia, seeking a declaratory judgment that the condition
violates the First Amendment and the Commerce Clause, is preempted by
federal law, and is void under Virginia law. AT&T and MediaOne also
asked for an injunction against the enforcement of the condition. They
moved promptly for summary judgment on the grounds that the open access
requirement is pre-empted by the Communications Act of 1934, as amended
by the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
(1996), and is unenforceable under Virginia law. GTE Intelligent Network
Services, Inc., Bell Atlantic Corp., Bell Atlantic Virginia, Inc., and
Bell Atlantic Internet Solutions, Inc. (collectively \"Verizon\") were
allowed to intervene as defendants on the side of the County. Verizon,
of course, offers a DSL service that competes with MediaOne\'s Road
Runner service. The County and Verizon filed a cross-motion for summary
judgment asserting that the open access condition was not preempted by
federal law and that it was a valid exercise of the County\'s authority
under Virginia law.

The district court granted AT&T and MediaOne\'s motion for summary
judgment. See MediaOne Group, Inc. v. County of Henrico, 97 F. Supp. 2d
712 (E.D. Va. 2000). The court concluded that the open access condition
was preempted by several provisions of the Communications Act. First, it
held that the condition violates 47 U.S.C. § 541(b)(3)(D) by requiring
MediaOne to provide its telecommunications facilities \"to any
requesting ISP\" as a condition for the County\'s approval of the
transfer of control. Id. at 714. Second, the court held that the open
access condition violates 47 U.S.C.S 544(e) because it would condition
and restrict the use of MediaOne\'s transmission technology. Id. at 715.
Third, after concluding that Road Runner is a \"cable service,\" the
court held that the open access condition is also barred by 47 U.S.C. §§
541(c) and 544(f)(1). Because the condition would require MediaOne to
provide all ISPs nondiscriminatory access to its cable modem platform,
the court concluded that the County was attempting to regulate MediaOne
as a \"common carrier\" in violation of § 541(c). Id. at 715-716. The
court also held that the condition is contrary to § 544(f)(1)\'s
prohibition against\"requirements regarding the provision or content of
cable services.\" Id. at 716. Finally, the district court held that the
open access requirement is void under Virginia law because nothing in
the Virginia Code (as it relates to the regulation of cable systems)
expressly or impliedly authorizes the County to impose such a condition.

The County and Verizon appeal the district court\'s order granting
MediaOne and AT&T\'s motion for summary judgment. We review a summary
judgment decision de novo. See AT&T Communications of Va. v. Bell
Atlantic-Va., Inc., 197 F.3d 663, 668 (4th Cir. 1999).

II\.

This case boils down to two questions: (1) the federal constitutional
question of whether the Communications Act preempts any power Henrico
County has under the Virginia Code to enact an open access provision and
(2) the state law question of whether the County has the authority under
the Virginia Code to enact such a provision.

Recently, in Bell Atlantic Md., Inc. v. Prince George\'s County, 212
F.3d 863 (4th Cir. 2000), we observed that the question of \"whether a
federal statute preempts a state statute . . . is a constitutional
question.\" Id. at 865. We went on to hold that when a court is faced
with a constitutional question of federal preemption and a question of
state law, the court should \"decide only\" the state law question if it
provides an independent \"ground upon which the case may be disposed
of.\" Id. at 866 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288,
346-47 (1936) (Brandeis, J., concurring)). This rule is based on the
principle that \"courts should avoid deciding constitutional questions
unless they are essential to the disposition of a case.\" Id. at 865. To
complete the point, we state the obvious: an independent state law
ground is one that allows us to avoid deciding a constitutional
question. See id. at 865 (noting that the federal statute at issue
reserved to local governments \"specific powers\" that might provide
grounds for deciding the case). In sum, according to Bell Atlantic, if a
case with a constitutional question of preemption also presents an
independent and dispositive question under state law, we should confine
ourselves to the latter. We turn, then, to Virginia law to see whether
it provides an independent ground for disposition of this case.

A Virginia county\'s authority under state law to license and regulate
cable television operators is found in Va. Code Ann. § 15.2-2108 (the
\"cable statute\"). The General Assembly\'s grant of regulatory
authority to the county (or locality) under the cable statute is broad:

Localities may by ordinance exercise all the regulatory powers over
cable television systems granted by the Cable Television Consumer
Protection and Competition Act of 1992 (P.L. 102-3085, 1992). These
regulatory powers shall include the authority (i) to enforce customer
service standards in accordance with the Act, (ii) to enforce more
stringent standards as agreed upon by the cable television system
operator through the terms of the franchise, and (iii) to regulate the
rates for basic cable service in accordance with the Act.

Va. Code Ann. § 15.2-2108(F). A Virginia county must exercise this
regulatory power in a way that prevents cable operators from taking
unfair advantage of their franchises. Specifically, a county must
regulate in a manner consistent \"with the policy of the Commonwealth to
provide for the adequate, economical, and efficient delivery of
\[cable\] systems to the consuming public \[and\] to protect the public
from excessive prices and unfair competition.\" Id. § 15.2-2108(E).
Again, the Virginia cable statute confers broad authority on counties to
regulate cable television systems, and there is no specific provision in
the statute that prevents a county from enacting an open access
ordinance. The Virginia statute does have a catchall provision that
limits a county\'s authority to regulate cable operators: section
15.2-2108(E) of the Virginia Code prohibits any cable regulation or
ordinance that is \"inconsistent with either the laws of the
Commonwealth or federal law.\" We have searched and have not found any
Virginia statute or any decision of the courts of the Commonwealth that
would prohibit the County\'s open access provision. The provision is
thus not inconsistent with the laws of the Commonwealth. Because the
open access provision is not prohibited by either the Virginia cable
statute or by other laws of the Commonwealth, we do not (thus far) have
any independent state law ground that allows us to avoid the federal
preemption question.

The Virginia cable statute does, of course, prohibit any cable
regulation or ordinance that is \"inconsistent . . . with federal law.\"
Va. Code Ann. § 15.2-2108(E). This raises the question of whether
Virginia law, by embracing federal law, provides an independent state
law ground for decision, thereby requiring us to avoid the
constitutional question of federal preemption under the rule of Bell
Atlantic Md., Inc. v. Prince George\'s County, 212 F.3d 863 (4th Cir.
2000). If we were to decide this case under § 15.2-2108(E) of the
Virginia cable statute, the question would be whether Henrico County\'s
open access provision is \"inconsistent . . . with federal law,\" that
is, the Communications Act. This is the same question we would ask under
a federal preemption analysis. See 47 U.S.C.S 556(c) (\"\[A\]ny
provision of law of any . . . franchising authority . . . which is
inconsistent with \[the Communications Act\] shall be deemed to be
preempted and superceded.\"). If we were to decide the state law
question first, we would in effect be deciding the federal preemption
question as well. Thus, the state law ground in this case is not
independent because it does not allow us to \"avoid deciding \[the\]
constitutional question\[ \]\" of federal preemption. Bell Atlantic, 212
F.3d at 865. We are therefore free under Bell Atlantic to proceed to the
question of federal preemption and determine whether Henrico County\'s
open access provision \"is inconsistent with\" the Communications Act.
See 47 U.S.C. § 556(c).

The district court held that the open access provision is inconsistent
with 47 U.S.C. § 541(b)(3)(D) because it would require MediaOne to
provide telecommunications facilities as a condition for approving
transfer of control of MediaOne\'s cable franchise to AT&T. See MediaOne
Group, Inc. v. County of Henrico, 97 F. Supp. 2d 712, 714 (E.D. Va.
2000). Section 541(b)(3)(D) says that\"a franchising authority may not
require a cable operator to provide any telecommunications service or
facilities, other than institutional networks, as a condition of the
initial grant of a franchise, franchise renewal, or a transfer of a
franchise.\" 47 U.S.C. § 541(b)(3)(D) (emphasis added). The term
\"telecommunications\" is defined as\"the transmission, between or among
points specified by the user, of information of the user\'s choosing,
without change in the form or content of the information as sent and
received.\" Id. § 153(43). Although the Communications Act does not
define the word \"facilities\" as used in \"telecommunications
facilities,\" it is evident from the language of the statute that these
facilities are the physical installations or infrastructure necessary
for transmission.

MediaOne\'s Road Runner service combines the use of a cable modem
platform with access to the Internet. Road Runner\'s cable modem
platform, separated from its Internet service component, is a
telecommunications facility because it is a pipeline for
telecommunications, that is, for \"the transmission . . . of information
of the user\'s choosing, without change in the form or content.\" Id. §
153(43) (defining \"telecommunications\"). As a condition for approving
the change in control of the MediaOne franchise, the County required
MediaOne to provide its \"cable modem platform (unbundled from the
provision of content)\" to \"any requesting Internet Service Provider.\"
The provision unbundles Road Runner\'s Internet access service from its
cable modem platform and compels MediaOne to offer the platform to
unaffiliated ISPs for use as a transmission pipeline for their services.
The open access provision therefore requires MediaOne to provide
\"telecommunications . . . facilities . . . as a condition of . . . a
transfer of a franchise\" in violation of § 541(b)(3)(D).

The County and Verizon argue that even if the cable modem platform is a
telecommunications facility, § 541(b)(3)(D) still does not outlaw the
open access provision. Section 541(b)(3)(D), they say, only prohibits
localities from requiring cable operators to construct new
telecommunications facilities, and the provision here does not impose
any such requirement. That argument ignores the statute\'s plain
language. Again, § 541(b)(3)(D) declares that franchising authorities
may not require cable operators \"to provide any telecommunications . .
. facilities\" as a condition to the transfer of a franchise. The
section does not limit itself to new construction. Rather, it bars any
condition that requires a cable operator to provide telecommunications
facilities regardless of whether the facilities are in existence or must
be built.

The County makes a separate argument that MediaOne\'s facilities qualify
as a \"cable system\" that cannot be said to include any
telecommunications facilities. Under the Communications Act a cable
system is defined as \"a facility . . . that is designed to provide
cable service which includes video programming and which is provided to
multiple subscribers within a community.\" 47 U.S.C. § 522(7). The
County points out that MediaOne offers traditional\"cable services,\"
like video programming, over its facilities. It therefore asserts that
because its system is \"designed to provide cable service\" it cannot be
considered a telecommunications facility. According to the County,
providing Internet access over its cable system does not magically
transform the cable system into a telecommunications facility.

We disagree with the County. The Communications Act recognizes that some
facilities can be used to provide more than one type of service. The Act
therefore contemplates that multi-purpose facilities will receive
different regulatory classification and treatment depending on the
service they are providing at a given time. For example, under 47 U.S.C.
§ 522(7)(C) the definition of \"cable system\" does not include a
facility of a common carrier that offers telecommunications services
\"except that such facility shall be considered a cable system . . . to
the extent that such facility is used in the transmission of video
programming directly to subscribers, unless the extent of such use is
solely to provide interactive on-demand services.\" In addition, under
47 U.S.C. § 153(46) the term \"telecommunications service\" is defined
as \"the offering of telecommunications for a fee directly to the public
. . . regardless of the facilities used.\" (emphasis added). Therefore,
although MediaOne maintains a \"cable system,\" its facilities can be
properly classified as telecommunications facilities when they provide a
transmission path to the Internet.

Because the open access condition violates § 541 (b)(3)(D) of the
Communications Act, our analysis of federal law may stop at that. Some
of the parties want us to go further, however, and determine the
specific regulatory classification of MediaOne\'s Road Runner service.
The County argues that Road Runner is a \"cable service\" under the
Communications Act. See 47 U.S.C. § 522(6) (defining the term \"cable
service\" as \"(A) the one-way transmission to subscribers of (i) video
programming, or (ii) other programming service, and (B) subscriber
interaction, if any, which is required for the selection or use of such
video programming or other programming service\"). It is very much in
the County\'s interest to have Road Runner classified as a cable
service. This would allow the County to regulate a cable operator\'s
provision of Internet access over cable lines. See 47 U.S.C. §§ 541-49
(authorizing localities to establish and enforce requirements for cable
facilities, equipment, and customer service). Verizon, on the other
hand, urges us to hold that the Road Runner service is a
\"telecommunications service.\" 47 U.S.C.S 153(46) (defining the term
\"telecommunications service\" as \"the offering of telecommunications
for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the
facilities used\"). Verizon has an incentive to make this argument. Any
determination that Road Runner is a \"telecommunications service\" could
have significant regulatory consequences. Certain federal common carrier
obligations could arise, see, e.g. , 47 U.S.C. §§ 201(b), 251, and all
providers of \"interstate telecommunications services\" must contribute
to the universal service fund supporting affordable telephone service,
see 47 U.S.C. §§ 153(44), 202, 254. At bottom, Verizon seeks regulatory
parity because its DSL service is already regulated as a
telecommunications service. See, e.g., In re Deployment of Wireline
Servs. Offering, Advanced Telecommunications Capability, 15 F.C.C.R.
385, P 9 (1999). Finally, although no one makes the argument here, Road
Runner might even be considered an \"information service\" under the
Communications Act. See 47 U.S.C. § 153(20) (defining \"information
service\" as \"the offering of a capability for generating, acquiring,
storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications\"). If Road Runner is
classified as an information service, it would not be subject to local
franchising or common carrier regulation. See Federal-State Joint Bd. on
Universal Serv., Report, 13 F.C.C.R. 11,501, P 39 (1998).

As the preceding paragraph illustrates, the issue of the proper
regulatory classification of cable modem service, such as Road Runner,
is complex and subject to considerable debate. The outcome will have a
marked effect on the provision of Internet services. The FCC, in its
amicus brief, has diplomatically reminded us that it has jurisdiction
over all interstate communications services, including high-speed
broadband services. The FCC also advises us that it has initiated a
proceeding, through a notice of inquiry, to examine classification and
open access issues. See Inquiry Concerning High-Speed Access to the
Internet Over Cable and Other Facilities, 65 Fed. Reg. 60,441 (2000).
The FCC\'s notice seeks comment on whether cable modem technology should
be classified as a cable service, a telecommunications service, or an
information service, and it also seeks comment on the implications of
adopting any particular classification. See In the Matter of Inquiry
Concerning High-Speed Access to the Internet Over Cable and Other
Facilities, No. 00-355, 2000 WL 1434689, P 15 (Sept. 28, 2000). In
addition, the notice indicates that the FCC is interested in determining
whether open access to cable modem platforms is necessary to further the
\"goals of promoting competition, deregulation, innovation, and the
deployment of high-speed services.\" Id. P 32. Of course, the merits of
open access are not before us. And, as we have already indicated, we do
not have to reach the question of whether MediaOne\'s bundled Road
Runner service is a cable service, a telecommunications service, or an
information service. For the time being, therefore, we are content to
leave these issues to the expertise of the FCC.

We simply hold that Henrico County violated § 541(b)(3)(D) when it
conditioned the transfer of control of MediaOne\'s cable franchise by
requiring MediaOne to unbundle its Road Runner service and provide open
access to its telecommunications facilities, that is, its cable modem
platform. Because the open access provision is inconsistent with the
federal Communications Act, it is preempted. We therefore affirm the
judgment of the district court.

AFFIRMED

WIDENER, Circuit Judge, concurring:

I concur in the result. I arrive at that result, however, by a different
route from that of the majority.

In this case, Henrico County, by ordinance, required open access to its
cable modem platform, which requirement is in violation of the Federal
Communications Act, 47 U.S.C. § 541(b)(3)(D), slip op. at 8.

A Virginia statute, Virginia Code § 15.2-2108(E) (1998), provides, in
pertinent part, that \"\[n\]o locality may regulate cable television
systems by regulations inconsistent with either laws of the Commonwealth
or federal law relating to cable television operations.\" (italics
added)

Thus, Virginia has tried, as best as she may, even by specific statute,
to prevent her counties from running afoul of the Federal Communications
Act.

The determination of whether or not a local law has been preempted by
federal law is a Constitutional question. It \"is essentially a two-step
process of first ascertaining the construction of the two statutes and
then determining the Constitutional question of whether they are in
conflict.\" Chicago & NWTR Co. v. Kalo Brick & Tile Co., 450 U.S. 311,
317 (1981) (internal quotations omitted).

In Virginia, a county has only the powers expressly granted to it by the
Commonwealth, or necessarily implied, and a local ordinance in violation
thereof is invalid. Bd. of Supervisors of Augusta County v. Countryside
Inv. Co., 522 S.E.2d 610, 613 (Va. 1999).

The second rule of construction in Ashwander v. TVA, 297 U.S. 288,
346-47 (Brandeis, J., concurring) (1936), is:\"The court will not
anticipate a question of Constitutional law in advance of the necessity
of deciding it . . . . It is not the habit of the Court to decide
questions of a Constitutional nature unless absolutely necessary to a
decision of the case.\" (internal quotations omitted) And the fourth
rule of Ashwander is: \"The Court will not pass upon a Constitutional
question, although properly presented by the record, if there is also
present some other ground upon which the case may be disposed of.\"
Ashwander, 297 U.S. at 346-47. I suggest the majority decision violates
both these rules.

In my opinion, the Henrico County ordinance is in violation of state
law, being \"inconsistent with . . . federal law\" under Virginia Code §
15.2-2108(E). Thus, our decision should rest on the fact that

the Henrico County ordinance is contrary to state law, that ground
having presented itself, instead of, contrary to Ashwander, deciding a
Constitutional question which gets the same result.

What purpose is served by States trying to cooperate, as here, if their
statutes are to be routinely Constitutionally preempted?

[^1]: ^^ In its order approving the transfer of control of MediaOne\'s
    federal licenses to AT&T, the Federal Communications Commission
    noted that MediaOne has \"committed to open \[its\] cable modem
    platform to unaffiliated ISPs as soon as . . . its exclusive
    contract with Road Runner expires in December 2001.\" In the Matter
    of Applications for Consent to the Transfer of Control of Licenses
    and Section 214 Authorizations from MediaOne Group, Inc.,
    Transferor, to AT&T Corp. Transferee, 15 F.C.C.R. 9816, P 120
    (2000). Specifically, MediaOne has agreed to negotiate, upon the
    expiration of its exclusive contract with Road Runner, mutually
    acceptable access agreements with unaffiliated ISPs. See id. P 121.