going to turn on two fundamental issues or questions the first these are the iowa city ordinances and the iowa state statutes that require a franchise to construct not just top rate but actually build a cable system valid in enforceable i e not preempting the second issue is whether or not a franchise read it was required did the city actually issue a franchise in the form of their right away agreement which in turn would give mediacom the right to elect the state license procedures we believe the court erred when it granted summary judgment finding the current franchise was not required based soley on the issue of whether or not they were providing cable services at the time that's the wrong standard and second erred in finding that a franchise the right away agreement was not in fact a franchise let me be clear about what this case is not about very important it is not about creating some barrier to entry for i on that issue has already been resolved the courts the f c c have grappled with that arena were being held up by local franchising authorities who were establishing high barriers high requirements long delays to the entry of those new entries what it did is it stripped those regulation where as a new entrant came into the marketplace they could get a state license very easy application essential a one page document and that would allow the incumbent importantly in the trade off to also elect that same state license what was created was fair what was created was good and it was fair because competition was level and it was fair because barriers to entry entry had been  s what they said that's accurate have they proposed to offer cable services yesterday what they said is that incumbent local exchange carriers which they were addressing who had the right to build out the entire  city had already built out the entire city was asking to upgrade its system towards to have fiber to the home system could not be required to get a franchise a cable franchise to do that unless and until it proposed to provide cable services and we believe that's the correct standard the one that has to be addressed that what is the intent of the person putting the facilities in the ground but has i'm on to offer cables if they offer you in exchange for some subscription fee to propose to offer cable television services or done any paid beta testing no they have not done that to a customer but they did repeatedly regularly and publicly tell everyone that they were proposing to build a cable television system they never said when though right they did not they were very they even today still are very vague they even then they're still conflicted right the question is though if this is an important part if the if the ordinance is required the determination at the time of construction are valid any foreseeable when we think they clearly are there's no question then the franchising authority must make that determination what can't happen is the one thing that happened here the city he refused the city can't refuse to make the determination it can't refuse honest i think they refused on this ill conceived notion that their own ordinance had been preempted well i've never heard a city actually arguing that their own regulations have been created using the other way around but leaving that aside for one moment they couldn't do that this it wasn't preempted so they're required to make that determination and more what what if what if i'm on  had never mentioned the intent to offer any kind of video services but when ahead and got approval to put the fiberoptics in the ground would would there have been a case weigh the city us to make a good faith determination that determination has many criteria intent is not a hard thing to do regulations require that determination all the time that happens but what's important here is this system that is put in food into place which is a careful balance of the incumbent the new entrants the city this system does not work if there isn't there a difference though between proposing something in an underlying intent  i think there to be fair to you or i think the eminence issue might affect that determination and i think when they come to you and say we want to build a cable system and provide cable services in competition with the incumbent i think they're proposing to build a cable system and they need to have a franchise they learned later changed their mind when that's been challenged in front of a litigation but they said it over and over and over again and city official and that's what's been burdened is that the iowa city is holding on to the old franchise obligations of mediacom right by refusing to acknowledge that there's been a franchise applicant in competition if the equipment being installed would allow it at some point in time no i think that there are a business plan if we were allowed to have discovery which we were deprived of in this case was a whole separate issue but if we conduct discovery we believe we're going to be able to show like any other business that they've done business plans financial analysis of what they're going to do and whether they can afford to build this out and make a profit like any other company wants to do if they're putting cable revenues in of that financial model i think that's pretty determinate of what they're they are proposing to provide cable services similarly if they're getting financing and they're putting cable revenues in the financial you could start providing cable services today all they have to do is flip the switch so yes there's lots of inquiries that need to be made i was going to say this with them but look the main point here ultimately is going to  there's been no change in the regulatory framework the state the federal law is still the same title one you know you can is completely deregulated title two for telecommunications services is regulate is a common carrier in title six cable services are regulated it's cable services where commercially they're simply deregulated but they have to give up certain public benefits in exchange for the fact they're occupying problem that the federal law is relatively old and outdated at this point time isn't i don't think so i mean the regulatory construct is still in motion and as you know that even cable modem for broadband services has been switching back and forth recently so there is there is movement there i think the problem here is trying to define where that the line is him and how much intent is one need to show in order to require them to get a franchise and have that  additional burden on them when where do you draw that line i think it has to be driving good faith and on thought stand your inquiry like any other line what it can't do here what we did we never even got there in this case here are  they refused to conduct that investigation at the time they issued it and in that right of way the staff report said specifically we understand that they're going to start building these  going to be proposed to provide cable services that triggered the requirement it would have allowed mediacom to opt with a state law and that's all that's really at issue here i refused to do so and then of course to the extent that there is any doubt that it's become more difficult i don't think means we're fact you can't just look at the physical facilities and say ok now we know that there has to be more there has to be some intelligent analysis of what's going on and what actually their intent or purpose for the facility doesn't mean that they don't have to do it the state statute which says it has to be done at the time you start construction so you're always going to have an ambiguity but that's not using force able it's internally consistent with the federal statute it's not so far from preemption i can even stand their argument to that effect so they can't avoid their obligation to what we're asking is that this erroneous summary judgment motion which is to apply the wrong standard only if you're part of hiring hable services you have to ignore the state statutes allow the city to ignore their own ordinances that has to be reversed the matter has to be remanded for and in connection with that we are asked do you find that those statutes and ordinances that consider that obligate a franchise at the time of construction are valid enforceable or not preempted we also asked this court look at the franchise look at the definition of franchise in federal law and state law and hold that the franchise has been granted so that we can go to the state and get a state like you know where in federal law it requires a franchise before construction start federal law what it says in two places in five forty one b it says a franchise shall be defined shall be deemed to be the right construct a cable system and then in the definition of franchise in five twenty two may please the court i represent the city i was city and we split the time with i'm on for our argument for the up police this morning your honour's mediacom keeps arguing it's briefs and council just got done arguing that i'm on is installing a cable system the amicus brief from charter also says this is a cable system and then their arguments go on and on about what the cable system regulations require it is not a cable system as a matter of law it's a mixed use system which the f c c and the courts have identified as a telecommunications system what i'm on is doing fall squarely within the scope of this two thousand and seven f c c order and i would suggest to the court that it also primarily in paragraph one twenty one depends what the word proposes mean right  no i would disagree or honor because all that's in the order you told me controlled it says that reading reading what it really says you're required to get a franchise when you proposed offer cable services and it was just proposed going the last example in that same paragraph your honor is that if an entity deploys fiberoptic cable they can be used for cable and non cable services this deployment alone does not trigger an obligation to obtain a cable franchise unless you've previous sentence you proposed to do it case the plaintiff illinois bell was upgrading from a copper wiring system to a fiber optic system the fiber optic system upgrade was going to be able to provide cable and non cable services the the county wanted to regulate it as a cable with a cable system and the court said relying on the two thousand and seven order that it be it's a multi use network no cable franchise is required until they're actually offering cable services and in the went on to say in that case to that right now and it which is a political our case right now the plaintiff is simply constructing a local distribution system capable of delivering cable video programming services so what does propose mean tell us tell us what you're here for the city what does that mean it means that they're ready to go that they propose and offer cable mean that they're that the cable is cable service is defined as the actual transmission of video programming to subscribers exactly but as long as there is a non cable purpose this is also in paragraph one twenty one as long as there is a non cable purpose associated with the network so the elysee the local provider is not required documentation they've included a line item in their in their future budgeting for cable service revenues in iowa city it makes no difference i would suggest hold on the word proposed the dictionary says to form a plan to make a budget that's in all the dictionaries trust me to set forth a purpose to set forth an intent seems like i do if we had a piece of paper how intent isn't in the statute that this is the f interpretation and the fourth circuit case which actually put in reichl county case media one which predates the f c c order talks about how the cable system is not a telecommunications system and so none of the systems none of the requirements for the cable system and the cable act apply but if they gone to a bank and gotten underwriting they don't tell you the city about it but they've gone to a bank and they've got underwriting to do cable all over your city if real cable best cable ever by google comes to town says of the best that's ever come about if google were to come to the city and say we propose to provide cable services to your city we're ready to go then that and then later they'd say we're not in my aunt but we don't know we're going to do something else in the meantime then you're getting into the issue of congress that there's congress in the f c c as the court knows the supreme court has said that the f c c has exclusive jurisdiction over the communications act and the f c c and congress have put into place through these orders requirements that prioritize the deployment of these fiber optic systems throughout the country without allowing local cable regulations which frankly arse are a lot of which are really along your honor and say i'm going to offer cable and i was city and nothing else and they were going to lay an infrastructure for just cable that had no ability to provide internet or phone they'd have to file it they'd have to comply with the ordinance the reality is people don't do that anymore when they lay it it's a fiberoptic system subject to the telecommunications act in the f c c has said we are not going to let these old cable to get in our way of what the f c c has said is  robust competition that they want in this area but the idea of this the argument the proposal equals intent is is reading into the statute something that is that is not there and again i can only tell you take a look obviously you know it's not controlling but take a look at what the northern district in that it task a case where the plaintiff was proposing an upgrade and the plaintiff said our plan is to provide cable and non cable that was what it was in the court still said no under this order you do not have to have a cable franchise only if they said they fly into that sounds like it violates a definite dictionary definition to propose well but your are then we have it then we have to decide which of the provisions in section one twenty one apply because the same that the f c is is unequivocal there clear as can be that the deployment of fiber optic cable that can be used for cable and not cable services alone does not trigger an obligation to get a cable franchise and i would suggest to you that that's a little clearer and unambiguous than the use of the term proposes because the dictionary definition may include the term intent of proposed but includes as you just said other definitions as well it is it possible for a company to build an entire system  in at the last minute before they turn it on they apply for a franchise for cable the and the statute the but the provider can can can do the full build out of its wireless system phone internet cable and only when they be are prepared to start providing video  scuse me the cable services the video programming to subscribers do they have to get the franchise and whether that's fine mediacom argues that's unfair but that's what the f c c has said and as the supreme court has said the f c c has exclusive jurisdiction over the interpretation of these regulations which which is why i think they've done thank you  said not in iowa because iowa has a specific statute requiring notice to other providers in advance and i and so that's not possible under those circumstances you know that there's at least thirty days  is in terms of notice requirement your are judgment you were talking about the definition of proposed and mr d's conversation with you about the plane then and the f c c interpretation is of course entitled to to deference but that doesn't change the statute and your honour's i would suggest to you that you can stick with the statute now mr patches argued today about the iowa statute i think the breeze really talked about the i was city ordinance not the i was statute but it's clear that the i was statute that authorizes the i was city ordinance in the first place incorporates all the definitions of the federal statute in the first place and it is clear that i was city does not have the authority to proceed with some other definition and it certainly has offered no other definitions so what we have is back to basics good old fashioned boring statutory interpretation and construction cable operator is someone who provides cable service now earlier in this case we had some shifting arguments that i'm on is a cable provider one place which means it's a cable provider everyplace will of course that's foolishness and we're no longer dealing with that kind of argument i'm on is an offer of cable services and the cedar rapids area which is not iowa if so so how can you reconcile because i think what you're arguing is you're not a cable provider unless you're actually providing cable so i am absolutely arguing that your honor but that's not the only definition is that you ok let me finish i'm sorry but later on it goes on to say if you construct well at the time you are constructing your not providing so it seems to me to be a little bit inconsistent or maybe ambiguous maybe you can clear it up but i would hope to do so sir cable operator is defined as a provider as i said cable system and this is complicated and you've got to trick trace it carefully but this is forty seven us so five twenty two seven c cable system is a facility quote designed to provide cable service shall be considered a cable system to the extent the facility is used to transmit video so what is a cable system your honor a cable system comes into of being at that point in which this motel use five or perhaps designed for the purpose of offering cable is used so therefore you believe that the i wa city code twelve dash for dash six where it says construct and says or do you think that's preempted by the statute you just told submersible i don't think it i don't think you can get there your honor because the introductory language  of the ordinance yeah but wait let me interrupt you and let's use your time well which is if you disagreed what this says no person shall construct any equipment for cable without a franchise now you say interpret that like it means to me in plain english you say that's preempted by five twenty two seven c yes sir thank you i do say that and i don't think you have any got there i don't think this new court needs to decide what an ordinance of iowa city means it isn't a state statute it's an ordinance and if the court does decide to decide what the i was a city ordinance means there's an easier interpretation which is that all applies cable system defined to be under the federal law which doesn't exist until it's actually use now under those circumstances why do you see a case this isn't any different frankly than the puerto rico case the beta testing case your honor in which they compan said we're going to do x and we want to throw ready to do x we're going to do x tomorrow or next week or whatever i suppose in one sense that's an intent and the court said no if you do actually will or provided services without  franchise and you cannot do that now what's that how do you reconcile the thirty i'm going to provide cable i know for sure i wish they were going to provide cable you know i was sitting your honour's everyplace that i'm on provides cable it has a franchise i live in iowa city i would love to have the option of i'm on cable as opposed to mediacom cable in this case they don't have any authority and for frankly your honor the common carrier exception that we just walked through and as well as the illinois bell case show that the extent of the a for the requirement to grant a franchise is also prohibits franchises requirement beyond that point so that's why proposal you believe this was posed i think just you know he believes in do everything up to the point do all the construction in decide that's the time you need a franchise right yes yes and there's no basis in law for any point beyond that and at what point is a gleam in someone's eye an actual intent to trigger obligations that no you think beta testing that would do it right well beta testing was held to be offering of services and you agree with that do this under th problem with that definition and frankly i think as a practical matter have to be in some point in advance of that because you started dance well i think as a business matter you could never get to the point where you were lying to wait on somebody to authorize a franchise before you could do it so you've got to you've got to you've got a project in advance to let the process work out that's just common sense unless you want to sit around and wait after you're ready  geiger i think you have it exactly right don't propose means i think they did propose over and over and over again and only withdrew their proposal with a pretext to avoid allowing media can you go get a state license that circumstance defeats the entire recognize franchise includes construct they also recognized by twenty two thirty three that the whole purpose of the cable act was the balance of the competing interests of local state and federal government federal government is never going to regulate it private rights away constructions and permits in local communities that are going to be at the community level that's what's happening here illinois bell actually favors are you have a response to the statutory argument that was just made seven know how to get a right away agreement have no right away agreement and have to get the right to construct in a public rights way entirely entirely different are you are you essentially asking the court to do it the f c c has not done and that is to require cable franchises before a mixed use network is built in the city no i'm asking you to do exactly what you asked the city to do exactly what the f c c said should be done and the i wa statute says hatch to be done which is determine what you're building at the time you're constructing and if you're proposing to provide cable services then you have to get a cable license in order to have the state equal equal protection law  work otherwise they avoid the music i'm stuck in you know it's a question of fact this needs to go back this was not a summer job rick thank you so much actually we appreciate your briefing and arguments today the case will be submitted and decided in due course