United States Court of Appeals

For the Eighth Circuit

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No. 16-3696

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MCC Iowa, LLC, doing business as Mediacom

lllllllllllllllllllll Plaintiff - Appellant

v.

City of Iowa City; ImOn Communications, LLC, formerly known as JB and SG

Communications, LLC

lllllllllllllllllllll Defendants - Appellees

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Charter Communications, Inc.

lllllllllllllllllllllAmicus on Behalf of Appellant(s)

Iowa League of Cities

lllllllllllllllllllllAmicus on Behalf of Appellee(s)

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Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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 Submitted: October 19, 2017

 Filed: April 4, 2018

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Before GRUENDER and BENTON, CircuitJudges, and TUNHEIM, DistrictJudge. 1

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BENTON, Circuit Judge.

MCC Iowa, LLC, doing business as Mediacom, provides cable and

telecommunicationsservicesin Iowa City. Mediacomsued the City of Iowa City and

ImOn Communications, LLC. The district court granted summary judgment to the

2

City and ImOn. Mediacom appeals. Having jurisdiction under 28 U.S.C. § 1291, this

court affirms.

I.

Mediacom—the only cable provider in the City—has a franchise agreement

with the City, as required by federal and state law. See 47 U.S.C. § 541(b); Iowa

Code § 477A.2(1). The agreement requires Mediacom to pay fees and provide cable

services to almost all the City.

In 2015, ImOn—provider of cable and telecommunications in other Iowa

cities—publicly stated an intent to provide services, including cable, in the City. The

City Council passed three resolutionsto facilitate ImOn’s construction of a fiber-optic

network, including access to public rights-of-way. The next month, ImOn began

providing internet to City residents. The next year, it began providing telephone

service. ImOn has not provided cable services in the City and has not applied for a

The Honorable JohnR. Tunheim, Chief Judge, United States DistrictCourt for

1

the District of Minnesota, sitting by designation.

The HonorableCharlesR. Wolle, United StatesDistrict Judge for the Southern 2

District of Iowa.

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cable franchise. It claims to have abandoned plans to provide cable services in the

City.

Mediacom believed the City and ImOn were colluding to its disadvantage. In

Iowa, if another cable provider applies for a franchise in a municipality, the

incumbent provider (here, Mediacom) can apply for a state certificate of franchise

authority for that municipality. Iowa Code § 477A.2(6). This guarantees the

incumbent provider the “same . . . terms and conditions” the new provider gets. Id. 

Mediacomsued the City, later adding ImOn as a defendant. The lawsuitsought

declarations that the resolutions were void and that the City could not permit a

potential cable provider to construct a “cable system” without acquiring a cable

franchise. Mediacom also alleged contract violations, tortious interference, civil

conspiracy, and Equal Protection violations, all depending on whether ImOn could

lawfully build a fiber-optic network without a franchise.

Both parties moved for summary judgment. Mediacom also moved for

discovery. The district court denied the discovery motion and granted summary

judgment to the City and ImOn. The court ruled that “ImOn is not presently required

to seek a cable franchise” because it “is not now delivering cable programming.”

This court reviews de novo the district court’s grant of summary judgment. 

Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). 

Summary judgment is proper if the court finds “there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

II.

Title VI of the Communications Act requires a franchise only before providing

cable service, not before constructing the infrastructure to provide it. “[A] cable

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operator may not provide cable service without a franchise.” 47 U.S.C. § 541(b)(1)

(emphasis added). But Mediacom argues that local franchising authorities (LFAs)

may require a franchise earlier than federal law does. And Mediacom believes the

City, as an LFA, did so in its Cable Television Franchise Enabling Ordinance:

No person, firm, company, corporation or association shall construct, install,

maintain or operate within any public street in the city, or within any other

public property of the city, any equipment or facilities for the distribution of

cable service over a cable television system or an open video system to any

subscriber unless a franchise authorizing the use of the streets or properties

or areas has first been obtained pursuant to the provisions of this chapter, and

unless such franchise is in full force and effect.

Iowa City Code § 12-4-6(A) (emphasis added).

The Ordinance must be interpreted consistent with federal law. See Iowa Code

§ 477A.11(1) (“This chapter is intended to be consistent with [Title VI] . . . ”); Iowa

City Code § 12-4-2 (adopting, almost word-for-word, Title VI’s definition of “cable

system” as the definition of “cable television system or cable system”). Mediacom’s

interpretation—requiring a franchise before construction of ImOn’s fiber-optic

network—is inconsistent with Title VI and an FCC order.3

Common carriers—asrelevant here, companies providing telecommunications

(internet and phone) service—are regulated under Title II of the Communications

Act. 47 U.S.C. §§ 201-76. Cable providers are regulated under Title VI of the Act. 

Because ImOn was a common carrier in Iowa City when it began construction, 3

Mediacom’s interpretation is also foreclosed by the Ordinance without reference to

federal law. The Ordinance (like Title VI) expressly excludes from its definition of

cable systems “a facility of a common carrier which is subject, in whole or in part, to

the provision of title II of the [Communications Act], except . . . to the extent that

such facility is used in the transmission of video programming . . . .” Iowa City

Code § 12-4-2.

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§§ 521-73. At one time, Title II and Title VI did not overlap because

telecommunications and cable had different infrastructures. See National Cable

TelevisionAss’n, Inc. v. FCC, 33 F.3d 66, 69 (D.C. Cir. 1994) (discussing the history

of copper-wire, coaxial-cable, and fiber-optic technology). Today, “mixed-use”

infrastructure—such asfiber-optic networks—can provide both telecommunications

and cable. See id.

Title VI grants LFAs franchising authority over cable systems. See § 541(a). 

But this authority is limited. As relevant here, Title VI exempts common-carrier

facilitiesregulated under Title II fromthe definition of “cable system” unlessthey are

used to provide cable services:

[T]he term“cable system” means a facility . . . designed to provide cable

service . . . but such term does not include . . . (C) a facility of a common

carrier which is subject, in whole or in part, to the provisions of [Title

II], except that such facility shall be considered a cable system (other

than for purposes of section 541(c)(2) of this title) to the extent such

facility is used in the transmission of video programming directly to

subscribers . . . . 

§ 522(7).

The FCC has stated:

We clarify that LFAs’ jurisdiction applies only to the provision of cable

services over cable systems . . . [A]n LFA has no authority to insist on

an entity obtaining a separate cable franchise in order to upgrade noncable facilities. For example, assuming an entity (e.g., a LEC[ ]) already

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possesses authority to access the public rights-of-way, an LFA may not

require the LEC to obtain a franchise solely for the purpose of upgrading

A “LEC”—“local exchange carrier”—is, as relevant here, a common carrier

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providing telephone service. See 47 U.S.C. § 153(32).

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its network.[] So long as there is a non-cable purpose associated with

the network upgrade, the LEC is not required to obtain a franchise until

and unless it proposes to offer cable services. For example, if a LEC

deploys fiber optic cable that can be used for cable and non-cable

services, this deployment alone does not trigger the obligation to obtain

a cable franchise.

In re Implementation of Section 621(a)(1) of the Cable Communications Policy

Act of 1984, 22 F.C.C.R. 5101, 5155 (2007) (hereinafter FCC order). See also

Illinois Bell Tel. Co. v. Village of Itasca, 503 F. Supp. 2d 928, 937 (N.D. Ill. 2007)

(holding that a company upgrading its telecommunications network to fiber-optic “is

not a ‘cable operator’ under the terms of [Title VI] because it is not providing the

transmission of video programming. Right now it is simply constructing a local

distribution system capable of delivering video programming.”). See generally

Competitive Telecommc’ns Ass’n v. FCC, 117 F.3d 1068, 1071 (8th Cir. 1997)

(deference to FCC order interpreting Title II), citing Chevron USA Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

Title VI, by itself, says that a common carrier’s mixed-use facility is a cable

system once the “facility is used” to provide cable services. See § 522(7)(C);

MediaOne Grp., Inc. v. County of Henrico, 257 F.3d 356, 364 (4th Cir. 2001)

(“[Title VI] therefore contemplatesthat multi-purpose facilities will receive different

regulatory classification and treatment depending on the service they are providing

at a given time.” (citing § 522(7)(C))). As the FCC order says, LFAs must have

franchise authority before actual use, i.e., when a company “proposes” to provide

cable services. See FCC order, 22 F.C.C.R. at 5155. Together, Title VI and the FCC

order establish that LFAs may regulate a common carrier’s mixed-use facilities

consistent with Title VI only when the operator provides or proposesto provide cable

services. Because ImOn has not provided or proposed to provide cable services,

deployment of its mixed-use, fiber-optic network does not require it to obtain a cable

franchise.

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III.

Mediacom argues that neither § 522(7)(C) nor the FCC order applies here,

where a common carrier constructing a mixed-use, fiber-optic network was not then

providing telecommunications in the area. But § 522(7)(C) and the FCC order apply

to a common carrier’s facilities “subject . . . to” Title II, regardless whether they have

yet been used to provide telecommunications services. See § 522(7)(C); FCC order

at 5155 (“[D]eployment [of mixed-use facilities] alone does not trigger the obligation

to obtain a cable franchise.”). Mediacom’s argument conflicts with the FCC order’s

stated objective of alleviating the “unreasonable barrier to entry [caused by the

previousfranchising process] that impedes the achievement ofthe interrelated federal

goals of enhanced cable competition and accelerated broadband deployment.” FCC

order, 22 F.C.C.R. at 5102. See also id. at 5103 (“We believe this competition for

delivery of bundled services will benefit consumers by driving down prices and

improving the quality of service offerings. We are concerned, however, that

[competitors] seeking to enter the video market face unreasonable regulatory

obstacles, to the detriment of competition generally and cable subscribers in

particular.”). This objective implements Title II and Title VI. See 47 U.S.C. § 253(a)

(“No State or local statute or regulation . . . may prohibit or have the effect of

prohibiting the ability of any entity to provide any interstate or intrastate

telecommunications service.”); § 541(b)(3)(B) (“A franchising authority may not

impose any requirement under this subchapter that has the purpose or effect of

prohibiting, limiting, restricting, or conditioning the provision of a

telecommunications service by a cable operator . . . .”).

Mediacomargues thatImOn “proposed” to provide cable service when its CEO

“publicly conveyed ImOn’s intent to offer cable TV services in Iowa City.” But

Mediacom conflates “proposes” with “intends.” Compare “propose,” Webster’s

Dictionary 1819 (unabridged 3d ed. 1961) (“to offer for consideration, discussion,

acceptance, or adoption”), with “intend,” Webster’s Dictionary 1175 (unabridged 3d

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ed. 1961) (“to have in mind as a design or purpose”). In the FCC order, the term

“propose” means “apply for a cable franchise.” See FCC order, 22 F.C.C.R. at 5139

(“[I]f an LFA has not made a final decision within the time limits . . . the LFA will be

deemed to have granted the applicant an interim franchise based on the terms

proposed in the application.” (emphasis added)); id. at 5138 (cable franchise

applications must contain information including “the geographic area that the

applicant proposes to serve,” and “the applicant’s proposed PEG channel capacity”

(emphasis added)). While ImOn stated an intent to provide cable service in the City,

it never proposed to do so.

Mediacom also believes that the City, before granting access to public rightsof-way, should be required to ask how entities intend to use them. If the entity

intends, as ImOn stated, to use them for cable services, Mediacom argues, the entity

must obtain a cable franchise.

Mediacom relies on San Juan Cable LLC v. Telecommunications Regulatory

Board of Puerto Rico. There, a company had applied for a cable franchise, but before

the approval of its application, wanted to construct and operate (mixed-use) facilities

in a “trial phase.” 598 F. Supp. 2d 233, 234-35 (D.P.R. 2009). The company, citing

the FCC order, argued that the franchise requirement was not triggered because it had

not “propose[d] to offer cable services.” Id. at 236. The district court disagreed:

[The FCC] did not hold . . . that just because a telephone company uses

the same cable system for a different activity, it should be exempt from

complying with [Title VI]’s franchise requirement where, as in the

present case, such company intends to upgrade existing facilities in

order to make the provision of cable services viable.

Id. at 237.

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San Juan Cable does not support Mediacom’s investigate-intent requirement. 

First, the company there had already applied for a franchise and was attempting “to

perfect [its] cable system before approval of the franchise.” Id. at 238. Thus, the

company had proposed to provide cable services. See id. at 237 (“[The company]

would have this court believe that it does not ‘propose to offer cable services,’ when

it is precisely for that reason that it wishes to conduct a beta-testing trial of its

system.”). Second, the district court found that the company’s “trial phase” was “the

provision of cable services” under Title VI. See id. at 237 n.2 (“What is before the

court is a petition . . . to bar the Regulatory Board fromallowing [the company]to use

such facilities for the provision of cable services if and until it acquires a franchise

as required by federal law, nothing more.”); id. at 236 (“[T]he court finds that [the

company] is indeed offering a ‘cable service,’ as defined in [Title VI], through the

implementation of its limited test trial.”). Here, Imon has not proposed a trial phase

or to provide cable services without a franchise.

In the alternative, Mediacomargues that the City granted ImOn a de facto cable

franchise that failed to comply with the franchise requirements of Title VI and Iowa

law. See, e.g., Iowa Code § 364.2(4)(g) (“If a city grants more than one cable

television franchise, the material terms and conditions of any additional franchise

shall not give undue preference or advantage to the new franchisee.”). According to

Mediacom, because the City knew ImOn’s intent to provide cable services and issued

resolutions allowing construction of mixed-use equipment, the resolutions were a

cable franchise.

But this is not true as a matter of state or federal law. Cities in Iowa have

general authority over rights-of-way, subject to state and federal limits. See Iowa

Code § 364.1 (“A city may,” except as provided in Iowa law, “exercise any power

and perform any function it deems appropriate . . . .”); City of Hawarden v. US West

Commc’ns, Inc., 590 N.W.2d 504, 506 (Iowa 1999) (cities have “the authority to

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regulate a utility’s use of streets, highways, rights-of-way and other public grounds

within the city limits to the extent not inconsistent with federal communication law

or [Iowa law]”). The federal and state limits that Mediacom cites apply to cable

“franchises,” defined as:

an initial authorization . . . issued by a franchising authority, whether

such authorization is designated as a franchise, permit, license,

resolution, contract, certificate, agreement, or otherwise, which

authorizes the construction or operation of a cable system.

47 U.S.C. § 522(9) (emphasis added); see also Iowa Code § 477A.1(7) (nearly

identical).

As discussed, ImOn’s fiber-optic network is not a “cable system,” because

ImOn has not provided or proposed to provide cable services. Thus, the agreements

authorizing ImOn’s construction of a fiber-optic network are not a de facto cable

franchise.

IV.

In its Equal Protection claim, Mediacomargues it issimilarly situated to ImOn. 

Mediacom cites Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 639 (5th Cir.

2012), where a law favored new cable providers over a “small and identifiable

number of[incumbent] cable providers.” The constitutional injury stemmed fromthe

differing treatment of similarly situated cable providers. Here, the district court

properly concluded that ImOn and Mediacom are not similarly situated because only

Mediacom is a cable provider in the City.

Finally, Mediacom asserts that the district court abused its discretion in

denying Mediacom’s motion for discovery. See Toben v. Bridgestone Retail Ops.,

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LLC, 751 F.3d 888, 894 (8th Cir. 2014) (denial of a discovery motion is reviewed for

abuse of discretion). Mediacom alleges there are disputed fact issues requiring

discovery, including: whether ImOn intended to provide cable services despite its

public retraction; whether ImOn was offering telecommunications servicesin theCity

before entering the agreements with the City; and whether ImOn’s system is fully

cable-ready. Because this court has assumed all facts favorably to Mediacom, the

district court did not abuse its discretion in denying further discovery and granting

summary judgment for ImOn and the City.

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The judgment is affirmed.

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