Court of Appeals of Indiana | Opinion 22A-PL-1630 | June 13, 2023 Page 1 of 12

ATTORNEYS FOR APPELLANT

NETFLIX INC.

George M. Plews

Brett E. Nelson

Joanne R. Sommers

Plews Shadley Racher & Braun LLP

Indianapolis, Indiana

Mary Rose Alexander

Robert C. Collins III

Latham & Watkins LLP

Chicago, Illinois

Peter E. Davis

Jean A. Pawlow

Latham & Watkins LLP

Washington, D.C.

ATTORNEYS FOR APPELLANT DIRECTV,

LLC

F. Anthony Paganelli

Joshua R. Lowry

Paganelli Law Group

Indianapolis, Indiana

Adam H. Charnes

Kilpatrick Townsend & Stockton LLP

Dallas, Texas

Ava J. Conger

John P. Jett

Kilpatrick Townsend & Stockton LLP

Atlanta, Georgia

ATTORNEYS FOR APPELLANTS DISH 

NETWORK CORP. AND DISH NETWORK 

LLC

Offer Korin

Brooke Smith

Stoll Keenon Ogden PLLC

ATTORNEYS FOR APPELLEES

Andrew W. Hull

Michael R. Limrick

Hoover Hull Turner LLP

Indianapolis, Indiana

Steven M. Berezney

Garrett R. Broshuis

Korein Tillery, LLC

St. Louis, Missouri
Court of Appeals of Indiana | Opinion 22A-PL-1630 | June 13, 2023 Page 2 of 12

Indianapolis, Indiana

Jared R. Butcher

Berliner Corcoran & Rowe LLP

Washington, D.C.

Matthew R. Friedman

Pantelis Michalopoulos

Steptoe & Johnson LLP

Washington, D.C.

ATTORNEYS FOR APPELLANTS HULU, LLC

AND DISNEY DTC, LLC.

Jason R. Delk

Delk McNally, LLP

Muncie, Indiana 

Victor Jih

Wilson Sonsini Goodrich & Rosati

Los Angeles, California

I N T H E

COURT OF APPEALS OF INDIANA

Netflix, Inc., Disney DTC LLC, 

Hulu, LLC, DIRECTV, LLC, 

Dish Network Corp., and Dish 

Network, L.L.C.,

Appellants-Defendants,

v.

City of Fishers, Indiana, City of 

Indianapolis, Indiana, City of 

Evansville, Indiana, and City of 

Valparaiso, Indiana on behalf of 

themselves and all others 

similarly situated,

June 13, 2023

Court of Appeals Case No.

22A-PL-1630

Appeal from the 

Marion Superior Court

The Honorable 

Heather A. Welch, Judge

Trial Court Cause No.

49D01-2008-PL-26436
Court of Appeals of Indiana | Opinion 22A-PL-1630 | June 13, 2023 Page 3 of 12

Appellees-Plaintiffs.

Opinion by Judge Foley

Judges Vaidik and Tavitas concur.

Foley, Judge.

[1] At issue in this interlocutory appeal is whether new and emerging technologies 

fit within a statutory scheme enacted prior to the emergence of those 

technologies. The resolution of this case is determined by whether the Indiana 

Video Service Franchises Act (“VSF Act”) applies to video streaming service

providers. 

[2] Netflix, Inc., Disney DTC, LLC, Hulu, LLC, DIRECTV, LLC, Dish Network 

Corp., and Dish Network L.L.C. (collectively herein “streaming services”) 

appeal the trial court’s order denying their motions to dismiss. Appellees are 

four Indiana cities (“four cities”) that allege that the streaming services are 

subject to the requirements of the VSF Act1 and seek, inter alia, a declaratory 

1

Indiana Code Chapter 8-1-34.
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judgment to that effect. We conclude that the trial court correctly determined 

that it has authority to hear the case pursuant to the Indiana Declaratory 

Judgment Act (“IDJA”).

2 Nevertheless, on May 4, 2023, the Governor signed 

into law H.B. 1454, which expressly excluded “video programming accessed 

via a service that enables users to access content, information, electronic mail, 

or other services offered over the Internet, including digital audiovisual works 

(as defined in I.C. 6-2.5-1-16.3)[,]” from the definition of “video service.” H.B. 

1454 § 123. This amendment to the VSF Act is “retroactive” to July 1, 2006. 

Given that a dispute centering on whether the streaming services provide 

“video service” within the meaning of the VSF Act is at the core of this case, 

and that the trial court’s analysis preceded the passage of this new amendment, 

we remand the case with instructions to vacate the denials of the streaming 

services’ motions to dismiss. 

Facts and Procedural History

[3] The four cities’ complaint,

3

filed on August 5, 2020, alleges that the streaming 

services provide video service in Indiana. The VSF Act requires entities that 

provide video service in Indiana to obtain a franchise4 authorizing the 

2

Indiana Code Chapter 34-14-1.

3 The action was temporarily removed to federal court, but both the federal district court and the Seventh 

Circuit court of appeals declined to exercise jurisdiction on the basis of the comity abstention doctrine and 

the general “hesitance to interfere with state and municipal fiscal matters . . . .” City of Fishers, Ind. v. 

DIRECTV, 5 F.4th 750, 753 (7th Cir. 2021).

4

“[A]n initial authorization, or a renewal of an authorization, that . . . is issued by the commission under this 

chapter after June 30, 2006; and [ ] authorizes the construction or operation of a video service system in a 
Court of Appeals of Indiana | Opinion 22A-PL-1630 | June 13, 2023 Page 5 of 12

construction of a video service system. A video service system is “a system, 

consisting of a set of transmission paths and associated signal generation, 

reception, and control equipment, that is designed to provide video service 

directly to subscribers within a community.” Ind. Code § 8-1-34-15(a). The 

VSF Act defines video service as:

(1) the transmission to subscribers of video programming and 

other programming service:

(A) through facilities located at least in part in a public 

right-of-way; and

(B) without regard to the technology used to deliver the 

video programming or other programming service; and

(2) any subscriber interaction required for the selection or use of 

the video programming or other programming service.

I.C. § 8-1-34-14.

5

 The four cities allege that the streaming services provide 

video service via facilities that are located, at least in part, in public rights-ofdesignated service area in Indiana.” I.C. § 8-1-34-4. Federal law permits states and local governments to 

issue franchises in order to regulate and receive compensation for use of the public rights-of-way. 47 U.S.C § 

541(a); § 521(3); see also City of Knoxville v. Netflix, Inc., 656 S.W.3d 106, 108 (Tenn. 2022).

5 As previously noted, this statute was recently amended by H.B. 1454 and the following subsection added:

(b) The term does not include:

(1) commercial mobile service (as defined in 47 U.S.C. 332);

(2) direct to home satellite service (as defined in 47 U.S.C. 303(v)); or

(3) video programming accessed via a service that enables users to access content, 

information, electronic mail, or other services offered over the Internet, including digital 

audiovisual works (as defined in IC 6–2.5–1–16.3).
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way, and such provisions generate gross revenue.6 The streaming services have 

not obtained a franchise from the Indiana Utilities Regulatory Commission 

(“IURC”), a failure which the four cities contend is a violation of the VSF Act’s 

requirements.

7

 And, as a result, the streaming services have not paid fees to the 

four cities which are “units” under the VSF Act. I.C. § 8-1-34-12. 

[4] The four cities’ complaint seeks: (1) a declaration that the VSF Act applies to 

the streaming services and that they have not complied with its requirements; 

(2) an accounting for the monies owed by the streaming services to the four 

cities; (3) an order enjoining the streaming services from providing video service 

in Indiana until such time as they obtain a franchise and pay the required fees; 

(4) an order that the streaming services comply with the requirements of the 

VSF Act and pay any franchise fees owed; and (5) attorney’s fees, costs, and 

expenses associated with the action. 

[5] On December 18, 2020, the streaming services filed various motions to dismiss 

the four cities’ complaint.8 The motions to dismiss raised an array of 

arguments, all of which find their procedural home in one of two claims: (1) the 

6

“[A]ll consideration of any kind or nature, including cash, credits, property, and in kind contributions . . . 

received by a holder from the operation of a video service system in a particular unit in Indiana; and [ ] 

calculated by the holder under section 23 of this chapter.” I.C. § 8-1-34-5.

7

I.C. § 8-1-34-16 (“[A] person who seeks to provide video service in Indiana . . . shall file with the 

commission an application for a franchise.”)

8 DirecTV and Dish Network, and Hulu and Disney filed separate joint motions to dismiss respectively, 

while Netflix filed its own motion to dismiss.
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trial court lacks subject-matter jurisdiction;

9 or (2) the complaint fails to allege a 

claim upon which relief can be granted.

10 Specifically,11 the streaming services

contended that: (1) the VSF Act does not provide a private cause of action; (2) 

the VSF Act does not apply to the streaming services; (3) application of the VSF 

Act would conflict with various federal laws;

12 (4) the trial court should defer to 

the IURC with respect to whether the VSF Act applies to the streaming 

services; and (5) the four cities failed to exhaust their administrative remedies 

prior to filing their complaint.

[6] After amendments to the motions to dismiss, additional motions practice, 

protracted briefing, and oral argument, the trial court denied all motions to 

dismiss on January 18, 2022.13 On February 17, 2022, the streaming services

filed a motion for certification for interlocutory appeal, which the trial court 

granted on June 10, 2022. We accepted jurisdiction pursuant to Indiana 

Appellate Rule 14 on August 12, 2022. 

9

Ind. Trial Rule 12(B)(1).

10 T.R. 12(B)(6).

11 For purposes of this appeal, we consolidate and categorize the various arguments made in the multiple 

motions to dismiss. 

12 The streaming services (with the exception of Dish Network) have largely abandoned these arguments on 

appeal, and we do not address them. To the extent that the parties do reference federal preemption or 

constitutional concerns in passing, see, e.g. Netflix’s Br. pp. 47–49, we need not reach the arguments as we 

resolve the appeal on other grounds. 

13 The trial court denied multiple motions to reconsider this order. 
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Discussion and Decision

[7] We first address the streaming services’ contention that the trial court lacks 

jurisdiction over this case. “‘When a trial court is confronted with a motion to 

dismiss based on Ind. Trial Rule 12(B)(1), the trial court is required to 

determine whether it has the power to adjudicate the action.’” Walls v. Markley 

Enters., Inc., 116 N.E.3d 479, 482 (Ind. Ct. App. 2018) (quoting MHC Surgical 

Ctr. Assocs., Inc. v. State Off. of Medicaid Pol’y and Plan., 699 N.E.2d 306, 308 (Ind. 

Ct. App. 1998)). “‘In ruling on a motion to dismiss for lack of subject matter 

jurisdiction, the trial court may consider not only the complaint and motion but 

also any affidavits or evidence submitted in support.’” Id. at 482–83 (quoting 

GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind. 2001)). “If the facts before the 

trial court are not in dispute, then the question of subject matter jurisdiction is 

purely one of law.” Id. at 483 (citing GKN, 744 N.E.2d at 401). “Under those 

circumstances no deference is afforded the trial court’s conclusion because 

appellate courts independently, and without the slightest deference to the trial 

court determinations, evaluate those issues they deem to be questions of law.” 

Id. No facts, as of yet, have been presented to the trial court, and, thus, there 

can be no dispute by the parties with respect to any facts. We therefore review 

the trial court’s decision to deny the motions to dismiss for lack of subject 

matter jurisdiction de novo. 

[8] The streaming services contend that the trial court lacked subject matter 

jurisdiction for three distinct reasons: (1) the four cities have not exhausted their 
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administrative remedies;14 (2) the VSF Act does not provide for a private cause 

of action; and (3) jurisdiction lies properly with the IURC. The four cities

respond that subject matter jurisdiction in this case derives from the IDJA, and 

that the IURC is not empowered to render the relief they seek. 

[9] The streaming services argue that the four cities could have “presented 

‘information’ to the IURC regarding the streaming companies’ alleged failure to 

secure the necessary video service franchise and requested a formal 

investigation as to whether the streaming companies have violated the VSF 

Act[,]” or “filed a ‘petition’ with the IURC seeking an ‘order’ regarding the 

streaming companies’ franchising obligations that would have triggered judicial 

review.” DirecTV’s Br. pp. 41–42. For authority, the streaming services cite 

various provisions of Title 170 of the Indiana Administrative Code. Crucially, 

however, we note that the Administrative Code with respect to the IURC 

governs “the practice and procedure in cases and other matters before the 

commission arising under the acts of the general assembly conferring powers upon 

the commission . . . .” 170 Ind. Admin. Code 1-1.1-1 (emphasis added). In other 

words, the General Assembly must first confer upon the IURC the authority to 

provide the relief sought by the four cities. 

14 We dispense with this argument on other grounds, but we note that our Supreme Court has determined 

that the failure to exhaust administrative remedies does not implicate the question of subject matter 

jurisdiction. See First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757, 760 (Ind. 2014) (“We summarily affirm 

that portion of the Court of Appeals opinion holding that the exhaustion of administrative remedies under 

AOPA is a procedural error and does not implicate the trial court's subject matter jurisdiction.”).
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[10] The General Assembly has expressly conferred certain authorities upon the 

IURC. For example, the IURC may “summarily investigate” discriminatory 

rate changes or inadequate services. I.C. § 8-1-2-58. It may hold formal public 

hearings on complaints about unreasonable utility rates. I.C. § 8-1-2-54. But 

the General Assembly has not empowered the IURC to determine the scope of 

its own authority. Here, the four cities seek a declaration that the VSF Act 

applies to the streaming services. This is a pure question of law, implicating the 

secondary question of whether the IURC has some authority over the streaming 

services. Thus, it is a question properly before the courts of this state, and not 

the IURC. See Ind. Off. of Util. Consumer Couns. v. Duke Energy Ind., LLC, 183 

N.E.3d 266, 268 (Ind. 2022) (“[B]efore us is a legal question on which we owe 

the [IURC] no deference.”); see also U.S. Steel Corp. v. N. Ind. Pub. Serv. Co., 951 

N.E.2d 542, 551 (Ind. Ct. App. 2011) (citing Town of Chandler v. Ind.–Am. Water 

Co., 892 N.E.2d 1264, 1267–68 (Ind. Ct. App. 2008) (“However, the 

Commission’s interpretation of statutes defining the limits of its jurisdiction is 

reviewed de novo.”), trans denied. 

[11] “The courts of this state have already concluded that the IURC does not 

possess the power to make declaratory rulings in the manner contemplated by 

the Declaratory Judgment Act.” S.E. Ind. Nat. Gas Co. v. Ingram, 617 N.E.2d 

943, 948 (Ind. Ct. App. 1993) (citing U.S. Steel Corp. v. N. Ind. Pub. Serv. Co., 482 

N.E.2d 501, 506 (Ind. Ct. App. 1985), trans. denied.). “It has not been 

empowered to enter judgments which determine the parties’ rights, status or 

legal relationship, even when the subject matter of the determination appears to 
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fall within the IURC’s broad grant of authority.” Id. (citing Nat’l Rural Utils.

Coop. Fin. Corp. v. Pub. Serv. Comm’n of Ind., 552 N.E.2d 23, 25 (Ind. 1990)). 

Accordingly, we agree with the trial court’s conclusion that: “[t]here is no 

explicit procedural requirement in the VSF calling for the Plaintiffs to first seek 

a determination from the IURC on whether Defendants must apply for a 

franchise at all.” Appellants’ App. Vol. II p. 58. The four cities cannot be 

compelled to exhaust a remedy that does not exist.

[12] We need not visit the streaming services’ arguments about whether the VSF Act 

creates a private right of action. The trial court correctly found that its 

jurisdiction derived from the IDJA. Indiana Code Section 34-14-1-2 provides: 

Any person interested under a deed, will, written contract, or 

other writings constituting a contract, or whose rights, status, or 

other legal relations are affected by a statute, municipal 

ordinance, contract, or franchise, may have determined any 

question of construction or validity arising under the instrument, 

statute, ordinance, contract, or franchise and obtain a declaration 

of rights, status, or other legal relations thereunder.

This is precisely the type of relief that the four cities seek: a declaration 

clarifying the applicability of the VSF Act. 

[13] The trial court found that “[a] plain reading of the IDJA clearly contemplates 

that a party should bring a case to determine the extent of a party’s rights under 

a statute in situations where the moving party would be entitled to redress.” 

Appellants’ App Vol. II p. 56 (emphasis in the original). We agree. The four 

cities meet the definition of “person” under Indiana Code Section 34-14-1-13. 
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Their rights to franchise fees are determined by the VSF Act, and the outcome 

of this case depends on the statutory construction of the VSF Act. Thus, the 

four cities meet the requirements of the IDJA, and the trial court properly 

exercised jurisdiction. See, e.g., Holcomb v. Bray, 187 N.E.3d 1268 (Ind. 2022).

[14] Finally, the parties devote significant briefing to the question of whether the 

VSF Act applies to them. Mindful of our role as a court of review, and of the 

potentially significant impact on the question represented by H.B. 1454, we 

remand the remainder of this case to the trial court with instructions to vacate 

denials of the motions to dismiss and conduct further proceedings consistent 

with this opinion. See Guzzo v. Town of St. John, 131 N.E.3d 179, 180 (Ind. 

2019) (remanding in light of intervening, retroactively applicable amendment to 

pertinent statute).

[15] Affirmed in part and remanded in part.

Vaidik, J., and Tavitas, J., concur.