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Comcast of Sacramento I, LLC v. Sacramento Metropolitan Cable Television Commission

United States Court of Appeals, Ninth Circuit

May 8, 2019

Comcast of Sacramento I, LLC; Comcast of Sacramento II, LLC; Comcast of Sacramento III, LLC, Plaintiffs-Appellants/ Cross-Appellees,
v.
Sacramento Metropolitan Cable Television Commission, Defendant-Appellee/ Cross-Appellants.

          Argued and Submitted December 17, 2018 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding D.C. No. 2:16-cv-01264-WBS-EFB

          Fred A. Rowley, Jr. (argued), Jeffrey Y. Wu (argued), and Aaron Pennekamp, Munger Tolles & Olson LLP, Los Angeles, California; Donald B. Verrilli Jr., Munger Tolles & Olson LLP, Washington, D.C.; Jill B. Rowe, Scott M. McLeod, and Patrick M. Rosvall, Cooper White & Cooper LLP, San Francisco, California; for Plaintiffs-Appellants/Cross-Appellees.

          Harriet A. Steiner (argued) and Joshua Nelson, Best Best & Krieger LLP, Sacramento, California, for Defendant-Appellee/Cross-Appellant.

          Allison W. Meredith and Jeremy B. Rosen, Horvitz & Levy LLP, Burbank, California, for Amicus Curiae California Chamber of Commerce.

          Karin Dougan Vogel, J. Aaron George, and Gardner Gillespie, Sheppard Mullin Richter & Hampton LLP, Washington, D.C., for Amicus Curiae California Cable & Telecommunications Association.

          Jeffrey M. Bayne, Tillman L. Lay, and James N. Horwood, Spiegel & McDiarmid LLP, Washington, D.C., for Amici Curiae The Alliance for Community Media and The Alliance for Communications Democracy.

          Travis Van Ligten and Jeffrey T. Melching, Rutan & Tucker LLP, Costa Mesa, California, for Amici Curiae League of California Cities, California State Association of Counties, and Scan Natoa, Inc.

          Before: Consuelo M. Callahan and N. Randy Smith, Circuit Judges, and Fernando M. Olguin, [*] District Judge.

         SUMMARY[**]

         Cable Franchise Fees

         The panel vacated the district court's summary judgment and held that 47 U.S.C. § 555a(a) barred the only relief sought by Comcast of Sacramento in its lawsuit concerning the calculation and payment of cable franchise fees.

         Under 47 U.S.C. § 555a(a), local authorities and municipalities, involved in the regulation of cable television services within their boundaries, are exempted from civil money damages liability in any lawsuit for any claim arising from the regulation of cable services.

         As an initial matter, the panel rejected Comcast's argument that the Sacramento Metropolitan Cable Television Commission (the "Commission") waived any argument relying on 47 U.S.C. § 555a(a). The panel held that the issue was raised and addressed by the district court sua sponte, and the Commission's briefs sufficiently raised the issue for purposes of appeal.

         The panel held that Comcast pleaded claims of conversion and common count, both intended to obtain a return of the security deposit paid to the Commission by Comcast's predecessor in interest under the terms of a franchise agreement, and these claims seek an award of money damages (and not injunctive or declaratory relief) and are brought against a cable franchising authority. The panel further held that Comcast's lawsuit, as pleaded, arose from cable regulation. The panel concluded that the lawsuit was subject to the bar provided by § 555a(a), and must be dismissed on that basis.

         The panel instructed the district court to enter an order on remand, dismissing the lawsuit without prejudice. The panel rejected Comcast's argument that it was left without any possible means of obtaining the return of its security deposit.

          OPINION

          N.R. SMITH, Circuit Judge:

         Under federal law, local authorities and municipalities, involved in the regulation of cable television services within their boundaries, are exempted from civil money damages liability in any lawsuit for any claim arising from the regulation of cable services. See 47 U.S.C. § 555a(a).

         This lawsuit concerns the calculation and payment of cable franchise fees. Because Comcast of Sacramento ("Comcast") seeks money damages in this suit, brings it against a municipality, and the suit arises out of the regulation of cable services, 47 U.S.C. § 555a(a) bars the only relief sought by Comcast. Thus, we vacate the district court's grants of summary judgment and remand with instructions to dismiss Comcast's lawsuit.

         I. FACTUAL AND ...


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